Sathish Shetty vs Harish Shetty and Others

N.K. Patil, J.

This appeal by the claimant is arising out of the impugned judgment and award dated 13.04.2012 passed in MVC No. 514/2011 on the file of the Presiding Officer, Fast Track Court at Udupi (hereinafter referred to as ''Tribunal'' for short), for enhancement of compensation. By its judgment and award, the Tribunal has awarded a sum of Rs. 5,18,100/- with interest at 6% p.a., from the date of petition till its realization as against the claim made by the appellant, on account of the injuries sustained by him in the road traffic accident.

The brief facts of the case on hand are that the appellant was aged about 34 years as on the date of accident, hale and healthy prior to the accident. Be that as it may, that on 04.12.2010 at about 15.45 hours, when he was proceeding as a pillion rider on a motor cycle bearing registration No. KA-47/H- 2312 and when he reached in front of Hitech Hospital, Ambalpady, Udupi, suddenly a Tipper bearing registration No. KA-20/B-4285 driven by its driver came in a rash and negligent manner from behind and dashed against the motor cycle of the appellant. Due to the impact, he fell down and sustained the following injuries:

"1) Right Inter Trochanteric Fracture.

2) Left Femur Shaft Fracture

3) Left Pubic Ramus Fracture

4) Right 5th Metatarsal Base Fracture

5) Perineal Injury

6) Ureteral Injury."

He was treated as inpatient in the hospital on different occasions for a period of 52 days and he has also undergone a surgery and spent considerable amount towards medical expenses and conveyance, nourishing food and attendant charges. The Doctor who is examined as PW2 has opined that the appellant has sustained disability to an extent of 15% to the whole body. It is the further case of the appellant that he was working as an agent in the bus stand and on account of the injuries sustained, he is not in a position to attend to his day-to-day activities without assistance of others. On the advice of doctor, he has taken bed rest and follow-up treatment for more than six months. It is further case of the appellant that, he suffered pain and agony during treatment period and has to pull on the said difficulty throughout his life. Therefore, he filed a claim petition under Section 166 of MVC Act before the Tribunal 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 appreciating the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs. 5,18,100/- as compensation under different heads with interest at 6% p.a., from the date of petition till its realisation. Being dissatisfied with the compensation awarded by the Tribunal, appellant has presented this appeal, seeking enhancement of compensation.

The submission of Sri. S.D.N. Prasad, learned counsel appearing for the appellant at the outset is that, the Tribunal has erred in assessing the income of the appellant at only Rs. 4,500/- per month, which is on the lower side, since, the accident has occurred on 04.12.2010. Appellant was aged about 33 years as per the wound certificate-Ex. P2 at the time of accident and was working as an agent in the bus stand and was getting a substantial income. Therefore, income of the appellant is to be re-assessed reasonably. Further, he is quick to point out that on account of the permanent disability sustained, he has undergone treatment for a period of 52 days in the hospital on different occasions and has also undergone a surgery. He has suffered mental pain and agony during treatment period and spent a huge amount of more than Rs. 5,22,446/-. He has also spent considerable amount towards medical expenses and conveyance, nourishing food and attendant charges. On the advice of the doctor, he has taken bed rest for more than six months. Further, Tribunal has committed an error in awarding lesser compensation towards loss of amenities, discomfort and unhappiness, which he is bound to pull on throughout his life and what has been awarded towards loss of future income on account of the disability and pain and sufferings, is on the lower side. The compensation awarded towards medical expenses and future medical expenses is also on the lower side and requires reconsideration. Therefore, the impugned judgment and award passed by the Tribunal is liable to be modified, by awarding just and reasonable compensation.

As against this, the learned counsel appearing for the respondent No. 2 inter alia contended and sought to substantiate the impugned judgment and award passed by the Tribunal and submits that interference by this Court is not called for.

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

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

Occurrence of the accident resulting in the injuries to the appellant is not in dispute. Further, it is not in dispute that the appellant was aged about 33 years at the time of accident as per the wound certificate-Ex. P2, hale and healthy prior to the accident and was working as an agent in the bus stand. Due to injuries sustained in the road traffic accident, he was treated as inpatient in the hospital for 52 days and has spent considerable amount towards medical expenses, conveyance, nourishing food and attendant charges. He has suffered mental pain and agony during treatment period and has to pull on the said difficulty through out his life. He has examined the Doctor-PW2 who has assessed 15% permanent disability to the whole body. On the advice of the doctor he might have taken bed rest and follow up treatment at least for more than six months. As per the medical bills at Ex. P5 series and Ex. P6-the discharge summary and he claims medical expenses for a sum of Rs. 5,22,446/- by producing medical bills. The same has been denied by the tribunal by awarding a compensation of Rs. 3,00,000/- on the sole ground that since, he has taken the facility of staying in the special ward in the hospital to which service tax was added, the same is deducted without any justification and it reduced the compensation to Rs. 3,00,000/- instead of awarding Rs. 5,22,446/- as claimed by the claimant. There is some substance in the submission of the learned counsel for the appellant. Hence, we accept the medical bills at Ex. P5 series and discharge summary-Exs. P7 and P8 and award a compensation of Rs. 5,22,446/- towards medical expenses. As rightly pointed out by the learned counsel appearing for the appellant, income assessed by the Tribunal at Rs. 4,500/- per month is on the lower side since the accident is of the year 2011. Having regard to age, avocation and year of accident, we can safely re-assess the income at Rs. 5,500/- per month, to meet the ends of justice. Since, the claimant was 32 years at the time of the accident; the appropriate multiplier to be adopted in the circumstances of the case is ''16'' and further as rightly pointed out by the learned counsel for the appellant as per the evidence of the Doctor a sum of Rs. 20,000/- is required towards future medical expenses including incidental expenses. Taking into consideration all these aspects, we deem it fit to award a sum of Rs. 70,000/- towards ''injury, pain and suffering'' as against Rs. 50,000/-, a sum of Rs. 5,22,446/- towards ''medical expenses'' as against Rs. 3,00,000/-, a sum of Rs. 30,000/- towards ''conveyance, nourishing food and attendant charges'' as against Rs. 10,000/-, a sum of Rs. 33,000/- towards ''loss of income during laid up period'' as against Rs. 13,500/-, a sum of Rs. 50,000/- towards ''loss of amenities, discomfort and unhappiness'' as against Rs. 10,000/-, a sum of Rs. 1,58,400/-(Rs. 5,500/-x 12 x 15/100 x 16) towards ''loss of future income'' as against Rs. 1,29,600/- and a sum of Rs. 20,000/- towards ''future medical expenses'' as against Rs. 5,000/- awarded by the Tribunal. Having regard to the facts and circumstances of the case as stated above, appeal is allowed in part. The impugned judgment and award dated 13.04.2012 passed by the Tribunal in MVC No. 514/2011 on the file of the Presiding Officer; Fast Track Court at Udupi is hereby modified. The total compensation payable comes to Rs. 8,88,846/- as against Rs. 5,18,100/- and the break-up is as follows:

Further, as rightly pointed out by the learned counsel appearing for the appellant, 6% interest awarded by the Tribunal is on the lower side in the light of the judgment of Apex Court and this Court in Catena of Judgment and hence, we award 8% interest per annum, on the enhanced compensation from the date of petition till realization.

The 2nd respondent-Insurer is directed to deposit the enhanced compensation of Rs. 3,70,746/- with interest at 8% p.a., from the date of petition till the date of realisation, within three weeks from the date of receipt of a copy of this judgment.

Out of the enhanced compensation, Rs. 2,50,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled or Grameen Bank, in the name of the appellant for a period of ten years and renewable for another five years, with liberty to him to withdraw the interest accrued on it.

The remaining Rs. 1,20,746/- with proportionate interest shall be released in favour of the appellant, immediately, on deposit by the Insurer.

Draw the award, accordingly.