B.M. Mabesba vs G. Ramakrishnaiah

Mr. Anand Byrareddy, J.—Heard the learned counsel for the appellant and the learned counsel for the respondent.

The appellant was the claimant before the Motor Accident Claims Tribunal, who was the victim of a road accident. It is stated that on 02.9.2009, at about 9.50 p.m., when the appellant along with others were about to cross the Tumkur-Bangalore National Highway No. 4 road, a two-wheeler, namely a TVS Victor motor cycle bearing Registration No. KA-02 EK 8560 coming from Nelamangala and going towards Madanayakanahalli, was being ridden at a very high speed and had dashed into the appellant and thereby, the appellant had suffered bone fractures of the lower ⅓ right leg below the knee. He was an in-patient in a hospital for more than 24 days and even after treatment, he was found with a whole body disability of 13%, as certified by a Medical Practitioner. He was under treatment between 3.9.2009 to 26.09.2009 and is claimed to have spent a large amount of Rs. 75,000/- towards medical expenses and other incidental expenses. He was said to be employed as an Ambulance driver with the Himalaya Drugs Company which had engaged the services of the appellant''s employer, namely Shashi Detective Services Private Limited and he was drawing a salary of Rs. 9,810/- and he also claimed to be engaged in agriculture and was earning Rs. 20,000/- per month from agricultural activities. It is in this background that he had raised a claim for compensation. The Tribunal having awarded a total sum of Rs. 2,64,650/- with interest thereon at 8% per annum from the date of the petition till the date of deposit of the award amount, the appellant being dissatisfied, is before this court seeking enhancement of compensation.

After having heard the learned counsel for the appellant and the learned counsel for the respondent, it is seen that the Tribunal has awarded Rs. 30,000/- towards pain and suffering. This would appear to be on the lower side. The learned counsel for the respondent would contend that the accident was of the year 2009 and having regard to the value of the rupee as on that date, a sum of Rs. 30,000/- is a substantial amount and does not warrant any enhancement. However, it is not the value of the rupee that would be relevant, but the pain and suffering. Therefore, having regard to the nature of injury and the treatment that the appellant had to undergo over a sustained period of time and having been left with a disability which is taken at 13% to the whole body, it would indicate that the pain and suffering was of a large degree and therefore, the amount requires to be enhanced. In our opinion, an additional sum of Rs. 15,000/- towards pain and suffering would meet the ends of justice.

Similarly, insofar as the medical and incidental expenses are concerned, a total sum of Rs. 9,050/- has been awarded.

The learned counsel for the respondent would submit that Tribunal has awarded the entire amount against which bills were produced and in the absence of any proof of any further expenses, it would not be possible to grant any compensation, in the absence of bills.

However, it is seen that the claim was for a sum of Rs. 75,000/-. Even if this was grossly exaggerated, the claimant would certainly be entitled to a substantial sum and therefore, the Tribunal having taken a narrow view of the claim for medical expenses, only dependant on the proof that was produced, this court would take judicial notice of the fact that even in the year 2009, the medical treatment and expenses involved in respect of a serious injury would have been much more than Rs. 9,050/- and it is quite possible that all the bills were either not secured or could not be produced. Therefore, to deny medical expenses only on that ground when the accident or the injury is not denied, would result in a miscarriage of justice. Therefore, awarding a further sum of Rs. 10,000/- towards medical expenses would be in order.

The court below has awarded Rs. 27,000/- towards loss of earning during the period that the appellant was laid up while he was recuperating. This the learned counsel for the respondent would submit, is in order, as the income was only Rs. 9,000/- and the treatment period was spread over a period of three monihs and therefore, there is no warrant to consider enhancement.

But, on the face of it, it is noticed that the earning of the appellant per month was 9,810/- and not Rs. 9.000/-. On that count alone, he would be entitled to an enhancement. Therefore, the loss of earning during the period he was laid up is enhanced to another sum of Rs. 3,000/-.

The loss of future earning capacity awarded again is incorrect, having regard to the fact that the Tribunal has adopted 10% as the whole body disability when the medical evidence was to the contrary. In that, the whole body disability was certified as 13%. If that is applied, the appellant would be entitled to a total amount of Rs. 2,59,896/- towards loss of future earning capacity, instead of Rs. 1,83,600/-.

Loss of amenities in future life is awarded at Rs. 15,000/-. It is pointed out by the learned counsel for the respondent that the appellant continues to drive the vehicle. He has not surrendered his Driving licence, which would mean that he is an able-bodied person and there is no loss of amenities in future life, as he is able to function in the same way that he was functioning earlier and hence, any enhancement towards loss of amenities in future, does not arise.

There is a whole body disability of 13%. Just on account of the fact that the appellant manages to continue to drive, does not lead to a presumption that there is no less of amenities in future life. The suffering and the loss is that of the appellant. It would be unjust to claim that he has not suffered any loss of amenities in future life. Therefore, the Tribunal itself having awarded Rs. 15,000/-, and going by the manner in which other heads of compensation are awarded, the appellant has been short-changed on this account and therefore, is required to be enhanced by at least another Rs. 15,000/-.

It is also the appellant''s claim that he requires future surgery to remove certain implants that are in place as a result of the injuries occurred and the Medical Practitioner who was examined in the case has also stated that the appellant would require such expenses for removal of the implants. Though there is no amount mentioned by the Medical Practitioner, the learned counsel for the respondent would suggest that such a claim is not maintainable seven years after the accident and when there is no indication of the expenses involved, it would be unjust to award such amount.

Since the Medical Practitioner had stated that he would require such surgery and merely because 7 years have elapsed, it would not lead to a presumption that he has undergone such a surgery or that it may not be necessary. Therefore, a nominal amount of Rs. 10,000/- is awarded towards surgery for removal of the implants.

Therefore, the appellant would be entitled to a total additional compensation of Rs. 1,29,296/- (Rupees One lakh twenty-nine thousand two hundred and ninety six only), with interest thereon at 7% from the date of the claim petition till the date of payment.

The amount shall be deposited before the Tribunal within a period of four weeks, by the second respondent - Insurance Company and the appellant is allowed to withdraw the same on such deposit.

The appeal stands disposed of.