Y.S. Umesh Chandra vs Krishna Murthy and Others

N.K. Patil, J.

Though this matter is posted today for orders, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.

This appeal by the claimant-appellant for enhancement of compensation is directed against the impugned judgment and award dated 28/10/2013, passed in MVC No. 1196/2009, by the Additional Senior Civil Judge and CJM. and Motor Accident Claims Tribunal, Tumkur, (hereinafter referred to as ''Tribunal'' for short), on the ground that, a sum of Rs. 1,68,300/- awarded by the Tribunal with interest at 6% p.a., from the date of petition till the date of realization, as against the claim of Rs. 30,00,000/-, on account of the injuries sustained by him in the road traffic accident is inadequate.

In brief, the facts of the case are:

"The appellant claims to be aged about 31 years at the time of the accident. He was hale and healthy prior to the accident, working as Insurance Agent and also doing agriculture and earning Rs. 25 to 30 thousand per month. That on 15.1.2009 at about 7.30 p.m. he was returning on hero Honda bearing Reg. No. KA.06.EC.1496 as pillion rider from clinic to his house on the way near Irakasandra gate, at that time, the driver of one luggage auto rickshaw bearing Reg. No. KA.06.B.5492 came in a rash and negligent manner and dashed against the motorcycle, due to which, both rider as well as the pillion rider sustained grievous injuries. Immediately, he was shifted to Vinayaka Hospital, Tumkur, where he was treated as inpatient from 15.1.2009 to 27.1.2009, underwent two surgeries, implants were inserted and then he was readmitted to hospital on 4.4.2009 and underwent treatment till 8.4.2009 and thereafter, on the advise of the Doctor, he has taken bed rest and follow up treatment."

It is the further case of the appellant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the appellant in the said accident, he has suffered permanent disability. The Doctor has assessed the physical disability at 46.8% to the right upper limb and 15% to the whole body. Therefore, appellant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the respondents.

The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 1,68,300/- as compensation under different heads with interest at 6% p.a., from the date of petition till realization.

Being dis-satisfied with the quantum of compensation awarded by the Tribunal, the appellant has presented this appeal, seeking enhancement of compensation.

We have heard the learned counsel appearing for appellant and learned counsel appearing for second respondent-Insurer.

The submission of the learned counsel appearing for appellant, at the outset is that, the income of the appellant assessed by the Tribunal at Rs. 4,500/- per month is on the lower side and is liable to be reassessed reasonably at rupees 6 to 7 thousand, on the ground that, appellant was aged about 31 years, Insurance Agent in Oriental Insurance Company and LIC and also doing agriculture and hale and healthy prior to the accident. Further he submits that, the compensation awarded by the Tribunal under different heads is on the lower side and is liable to be enhanced, on the ground that, in the accident, appellant has sustained 9 injuries as per Ex. P6-Wound certificate, out of which, except injury Nos. 1 and 2, all other injuries are grievous in nature, for that, he has taken treatment as inpatient for 16 days on two occasions, underwent two surgeries, spent reasonable amount towards medical expenses, conveyance and other incidental charges and on the advise of the Doctor, taken bed rest and follow up treatment for more than six months. On account of injuries, he has suffered permanent disability. The Doctor has assessed the disability at 46.8% to the right upper limb and 15% to the whole body and it would affect his happiness. Discomforts and unhappiness persists through out his life and it would affect his earning capacity and now he is not in a position to do his work as he was doing earlier. Further he submits that the appellant has to undergo one more surgery and for that he may require some amount including incidental expenses. But these aspects of the matter have not been considered or appreciated by the Tribunal while awarding compensation. Therefore, he submitted that the impugned judgment and award is liable to be modified.

Per contra, learned counsel appearing for insurer, inter alia, contended and submitted that the compensation awarded by the Tribunal is just and reasonable and after due appreciation of the oral and documentary evidence available on file and therefore, it does not call for interference.

After careful consideration of the submissions made by learned counsel appearing for both the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is:

"Whether the compensation awarded by the Tribunal is just and reasonable?"

The occurrence of the accident and the resultant injuries sustained by the appellant as per Ex. P6-wound certificate are not in dispute. It is also not in dispute that, appellant was aged about 31 years, working as Insurance Agent in Oriental Insurance Company, LIC and also doing agriculture. On account of the grievous injuries sustained by him in the accident, he has taken treatment as inpatient on two occasions, for 16 days, underwent two surgeries and implants were inserted. As per the evidence of the Doctor, appellant has suffered permanent disability at 46.8% to the right upper limb and 15% to the whole body and we accept the same instead of 5% as assessed by the Tribunal. Due to which, he is not in a position to do his work as he was doing earlier. Further, the Tribunal has erred in assessing the income of the appellant at Rs. 4,500/- per month which is on the lower side and it needs to be enhanced. Having regard to the age, occupation and year of the accident, we re-assess the income of the appellant at Rs. 6,000/- per month Discomforts and unhappiness persists through out his life and it would affect his happiness in future life and also affects his earning capacity.

Further, it emerges that, during the course of treatment, appellant might have undergone pain and agony, he might have sustained financial loss, as he could not have attended his work regularly and the disability is permanent in nature and as per the evidence of the Doctor, he has to undergo one more operation for removal of implants and for that, he may require some amount towards medical expenses, including incidental expenses. The proper multiplier applicable would be ''16'' since the appellant was aged about 31 years as on the date of the accident. Taking all these aspects into consideration, we award a sum of Rs. 50,000/- towards injury, pain and suffering instead of Rs. 30,000/-, Rs. 36,000/- towards loss of income during the period of treatment for six months at the rate of Rs. 6,000/- per month instead of Rs. 22,500/-; Rs. 60,000/- towards medical expenses, including conveyance, nourishing food and attendant charges instead of Rs. 55,000/-, Rs. 30,000/- towards loss of amenities, discomforts and unhappiness instead of Rs. 15,000/-, Rs. 1,72,800/- ( Rs. 6,000 x 12 x 16 x 15%) towards loss of future earnings instead of Rs. 37,800/-, Rs. 20,000/- towards future medical expenses instead of Rs. 18,000/-.

In all, the appellant is entitled to the total compensation of Rs. 3,68,800/- instead of Rs. 1,68,300/- and the break- up is as follows:

Having regard to the facts and circumstances of the case, the appeal filed by the appellant is allowed in part. The impugned judgment and award dated 28/10/2013, passed in MVC No. 1196/2009, by the Additional Senior Civil Judge and CJM., Motor Accident Claims Tribunal, Tumkur, stands modified, awarding the compensation of Rs. 3,68,800/- instead of Rs. 1,68,300/-. There would be an enhancement of Rs. 2,00,500/- with interest at 6% p.a.,(excluding interest for the delayed period of 257 days in filing the appeal) from the date of petition till its realization.

The second respondent-Insurer is directed to deposit the enhanced compensation of Rs. 2,00,500/- with interest at 6% p.a., (excluding interest for the delayed period of 257 days in filing the appeal) from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award.

Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs. 2,00,500/-, 50% with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the appellant for a period of 05 years and renewable by another 05 years, with liberty reserved to him to withdraw the interest accrued on it, periodically.

The remaining 50% with proportionate interest shall be released in favour of the appellant, immediately.

Draw the award, accordingly.