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Judgment
B. Veerappa, J—This is a claimant''s appeal against the impugned judgment and award dated 22.09.2011 passed in MVC No. 2814/2010 by the MACT, Bangalore, seeking enhancement of compensation. Even though the matter has come up for admission, with the consent of learned counsel appearing for both the sides, it is taken up for final disposal.
For the sake of convenience the parties are referred to as per their ranking before the Tribunal.
It is the case of the petitioner that he has sustained grievous and simple injuries due to the accident that occurred on 8.2.2010 at about 3.25 p.m. when he was driving a Maruthi Van bearing No. KA 04 Z 3776, at that time, a Mahindra Jeep bearing No. KA-07 G 76 came in opposite direction with high speed and dashed against the Maruthi Van. The petitioner was hospitalized as inpatient for 10 days at Hosmat Hospital, Bangalore and in view of the accident, the claimant sustained communited fracture of right femur with fracture neck of right femur and injuries on the right hand etc. Due to the accident, he is permanently disabled and he cannot do his day-to-day work, after the accident, as he was doing before the accident and the petitioner - is aged 50 years. He was working as a mason and he was earning Rs. 110/- per day and Rs. 3,300/- per month. Thus the claim petition was filed before the Tribunal seeking for compensation.
After summons issued by the Tribunal the respondents filed written statement/objections and contended that the petition is not maintainable and they also disputed the age and occupation and income of the petitioner and also contended that the compensation claimed by the petitioner is highly excessive and further contended that the accident occurred due to the negligence on the part of the claimant etc., and prays for dismissal of the claim petition.
Based on the pleadings the Tribunal framed the following issues :--
"1. Whether the petitioner proves that the injuries sustained in road traffic accident that occurred on 8.2.2010 at about 3.25 p.m. near Vinoba Nagar on Kolar Bangarpet road, was due to use of Mahindra Jeep bearing No. KA 07 G 76?
Whether the petitioner is entitled for compensation? If so, for what amount and from whom?
What order or award?"
In order to establish his case, the claimant got examined himself as P.W.1 and the Doctor as RW.2 and got marked the documents Exs. R1 to P.11. The respondent has neither adduced any evidence nor produced any material documents. The Tribunal after considering the entire material on record has awarded compensation of a sum of Rs. 57,200/- with interest at 8% p.a. from the date of petition till the date of deposit. Against the said impugned judgment and award, the appellant has filed the present appeal for enhancement.
I have heard the learned counsel appearing for the parties to the lis.
Smt. Suguna R. Reddy, learned counsel appearing for the appellant has contended that the judgment and award passed by the Tribunal is an error contrary to law and error apparent on the face of the record and in violation of the well established principles governed by the provisions of Sections 166 and 163-A of the Motor Vehicles Act, 1988 and also contended that the Tribunal failed to consider the law laid down by the Apex Court. While granting award it should consider the aspect of personal injury, because the award substantially goes to a living person and also contended that the appellant sustained grievous injury, thus the amount of Rs. 5,000/- awarded towards pain, injuries and suffering without considering the nature and impact of the injuries sustained is an error apparent of the face of it, and also contended that the amount of Rs. 15,000/- awarded towards medical expenses and incidental charges is incorrect, even though the petitioner has spent a sum of Rs. 1,28,439/- towards medical expenses, based on the ground that the provisions of Section 163-A of the Act is attracted, without noticing the fact that there is no such restriction etc., and prays for enhancement of compensation.
Per contra, Sri. R.B. Sathyanarayana Singh, learned HCGP appearing for the 1st respondent has sought to justify the impugned judgment and award and vehemently contended that the Tribunal is justified in granting compensation of Rs. 57,200/- taking into consideration the provisions of Section 163-A of the MV Act.
I have given my thoughtful consideration to the arguments advanced on both the sides and perused the entire material on record.
It is not in dispute that due to the accident that occurred on 8.2.2010 the petitioner sustained communited fracture of shaft right femur with fracture of neck right femur as could be seen from the wound certificate-Ex. P2. The Tribunal also recorded a specific finding that the accident occurred due to the rash and negligent driving of the Mahindra Jeep on the part of the Driver, the petitioner sustained injuries. Admittedly the respondents have not challenged the said adverse rending recorded by the Tribunal.
PW.1 has specifically deposed that he was working as a mason and earning Rs. 110/- per day and Rs. 3,300/- per month and if it is taken the said amount of Rs. 39,600/- would be within the limits prescribed under Section 163-A of the MV Act. The Tribunal has taken the notional income of the petitioner at Rs. 24,000/- per annum ignoring the material document and the evidence adduced by the claimant, even though the respondent has not adduced any oral evidence or produced material document contrary to the material documents produced by the claimant. Therefore, the evidence and material documents clearly discloses that the petitioner was earning Rs. 3,300/- per month and the same has to be taken into consideration, while deciding the claim petition and accordingly the loss of earning capacity works out to Rs. 51,480/- (Rs. 3,300/- x 12 x 13 x 10)/100) and the loss of earning during laid up period for three months comes to Rs. 9,900/- at the rate of Rs. 3,300/- per month.
The medical expenses has to be enhanced for the following reasons. It is not in dispute that the petitioner has spent about Rs. 1,09,439/- towards medical expenses and has produced Ex. P7 and Ex. P36 Bills worth Rs. 19,439/- totally amounting to Rs. 1,28,439/-, even though the Tribunal restricted the medical bills for Rs. 15,000/- in view of Section 163A of M.V. Act, II Schedule r/w Section 163A of the M.V. Act. The Hon''ble Supreme Court while considering the provisions of Sections 163-A, 141 and Schedule II of Motor Vehicles Act, 1988, in the case of Sapna Vs. United India Insurance Co. Ltd. and Another, (2008) ACJ 2148 : AIR 2008 SC 2281 : (2008) 3 CLT 541 : (2008) 7 JT 569 : (2008) 152 PLR 378 : (2008) 8 SCALE 622 : (2008) 7 SCC 613 : (2008) AIRSCW 4080 : (2008) 3 Supreme 735 has held as under :--
"10. The principle that is to be applied in a case of this nature that the amount of compensation should be just and fair is not in dispute. What would, however, be just and fair amount of compensation is required to be determined having regard to the facts and circumstances of the case involved. In given cases, the courts may deviate from the structured formula. In terms of the Second Schedule, where the deceased or injured were not having any income, the statute presumes an income of or about Rs. 15,000/- per month. If having regard to the age of the appellant, the multiplier of 15 is applied, a sum of Rs. 2,25,000/- would be payable. Besides the said sum, not only some amount of compensation should be awarded under the heading of mental agony but also some provisions should be made for future treatment.
What would be the genuine and reasonable expenditure likely to be incurred by the appellant towards her future treatment is not borne out from the records. It would require serious consideration for the purpose of award of damages. When a person becomes completely incapable to do any work and virtually has no enjoyment for life, the same form relevant factors and, thus, requires consideration for the purpose of determining a fair and reasonable amount of compensation."
The Division Bench of this Hon''ble Court relying on the decision of the Apex Court stated supra in the case of Regional Manager New India Assurance Co. Ltd., v. Vijay Balshiram Walunj reported in ILR 2012 Kar 335 : (2012 (1) AIR Kar R 408) has specifically held in paragraph 7 which reads as under:--
"7. So far as point No. 2 is concerned, under the structured formula, the court is empowered to award only Rs. 15,000/- as compensation under the head medical expenditure under Section 163-A of the Motor Vehicles Act. The Honourable Supreme Court in Sapnas case cited supra had an occasion to consider the said provision and after considering the said provision in detail their Lordships have held that in appropriate cases, the Court can deviate and award excess compensation. Therefore, what is required to be considered in this case is whether the Court can deviate from the structured formula to consider the case of the claimants under the head medical expenditure in excess of Rs. 15,000/-.
It is not in dispute that Dinesh sustained grievous injuries in a road traffic accident occurred on 21.1.2000 and he succumbed to injuries on 20.5.2005 nearly after 5 years. The evidence on record discloses that he was under continuous treatment from the date of accident till his death and he died due to the accidental injuries. He was an ordinary employee and he was admitted to one of the best hospitals in Bangalore wherein, the claimants were forced to spend more that Rs. 3,50,000/- towards treatment. Therefore, it is a fit case where the court has to deviate from the structured formula. Considering the case of the claimants, we feel that the compensation awarded by the Tribunal towards medical expenditure is lesser than the amount spent towards medical expenses. In this background, we are of the view that point No. 2 has to be answered in favour of the claimants."
In the present case, the petitioner admittedly a mason was earning Rs. 3,300/- per month and has spent Rs. 2,28,439/- towards medical bills due to the grievous injuries sustained in view of the unfortunate accident. Because of his meager earning, it is appropriate in the facts and circumstances of the present case and the law laid down by the Supreme Court in the case of Sapna Vs. United India Insurance Co. Ltd. and Another, (2008) ACJ 2148 : AIR 2008 SC 2281 : (2008) 3 CLT 541 : (2008) 7 JT 569 : (2008) 152 PLR 378 : (2008) 8 SCALE 622 : (2008) 7 SCC 613 : (2008) AIRSCW 4080 : (2008) 3 Supreme 735 would apply to the facts of the present case. I am of the considered opinion, that it is a fit case to deviate from the structural formula in terms of the II Schedule, since the injured is not having income, the statute presumes the income of the injured above Rs. 15,000/- per month. Taking into consideration the age of the claimant/injured and the mental agony he has to suffer and future treatment he has to undergo, and in view of unfortunate accident, the appellant has become permanently crippled throughout his life. Therefore, taking into consideration the entire material on record and the law laid down by the Apex Court as well as the Division Bench decision, stated above, I am of the considered opinion, the petitioner is entitled to Rs. 1,28,439/- towards medical expenses as per Ex. P7 and P.36.
After re-appreciating the entire material on record, I am of the considered opinion, that the claimant is entitled for enhancement of compensation under the following heads:--
In all the appellant is entitled to Rs. 1,94,819/- including the compensation already awarded by the Tribunal. The enhanced compensation comes to Rs. 1,37,619/-. The claimant - appellant is entitled to enhanced compensation of Rs. 1,37,619/- with interest at 8% p.a. from the date of petition till the date of realization. Accordingly the appeal is allowed in part and the impugned judgment and award is modified. Out of the enhanced compensation, 50% of the amount with proportionate interest shall be deposited in the name of the appellant in a fixed deposit in any of the Nationalized or Scheduled Bank for a period of five years with liberty to the claimant-appellant to withdraw the periodical interest as and when it accrues. The remaining 50% of the compensation with proportionate interest shall be disbursed to the claimant-appellant. The Insurance Company shall deposit the enhanced compensation within three months from the date of receipt of a copy of this judgment.
Registry to draw the award accordingly.