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Judgment
N.K. Patil, J.—This appeal by the claimant is directed against the common judgment and award dated 22nd April 2008, passed in MVC No. 7059/2006, by the XVIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-4, Bangalore (SCCH-4), (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 1,81,440/- with interest @ 6% p.a. awarded in favour of the claimant as against her claim for Rs. 10,00,000/-, is inadequate. The appellant claims to be aged about 40 years and a homemaker and hale and healthy prior to the date of accident. That the occurrence of accident at about 8:30 P.M., on 05-03-2006, when the appellant was proceeding in a Tempo Trax bearing Registration No. KA-40/A-9367 near Pullotte, Shiradi Village, Puttur Taluk, South Kanara District at NH-48, on account of rash and negligent driving by the driver of Lorry bearing Registration No. KA-19/B-2574 is not in dispute. It is also not in dispute that the appellant has sustained fracture of shaft of left femur at middle 3rd, fracture of right side 6th rib and other injuries over the body and immediately.
It is her further case that, on account of the accident, she sustained injuries stated above and for the treatment of the said injuries, she has spent reasonable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, she has to be compensated reasonably.
On account of the injuries sustained in the accident, the appellant filed the claim petition u/s 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs. 10,00,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 22nd April, 2008. The Tribunal after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs. 1,81,440/- under different heads, with interest at 6% per annum, from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation.
I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the appellant and the Insurer.
The submission of the learned counsel appearing for appellant, at the outset is that the Tribunal grossly erred in not awarding reasonable compensation towards conveyance, nourishing food and attendant charges, loss of amenities, discomfort and unhappiness, loss of future income and future medical expenses. To substantiate the said submission, he submitted that on account of the grievous injuries sustained in the road traffic accident, the appellant has taken treatment for a period of 22 days in various Hospitals and also underwent two surgeries. PW 8, Doctor has assessed the functional disability at 33% in respect of limb and 16% in respect of whole body, but the Tribunal has assessed the whole body disability at only 11%. The same cannot be sustained. Further, he submitted that on account of the grievous injuries sustained and surgeries undergone, the appellant has taken follow-up treatment for at least three months and lost the future prospects and comforts in life. Further, in view of the surgeries undergone, she may have to incur future medical expenses also. Therefore, he submits that the impugned judgment and award passed by Tribunal is liable to be modified by awarding reasonable compensation under all the heads.
Per contra, learned counsel appearing for Insurer inter alia contended and substantiated the judgment and award passed by Tribunal stating that the same is passed after due appreciation of the oral and documentary evidence available on file and after consideration of the entire material available on file including the submission made by the learned counsel appearing for both parties and having regard to the age, nature of injuries sustained, disability, etc and hence, the compensation awarded by Tribunal is just and reasonable. Hence, it does not call for interference. However, he fairly submitted the multiplier adopted by Tribunal is incorrect and proper multiplier may be adopted and reasonable compensation may be awarded towards loss of amenities, discomfort and unhappiness.
After hearing the learned counsel appearing for the appellant and the Insurer and after going through the impugned judgment and award passed by Tribunal, I am of the view that, the Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of Rs. 30,000/- towards injury, pain and sufferings. Hence it does not call for interference. However, so far as other heads are concerned, the Tribunal erred in not awarding reasonable compensation and therefore, it requires enhancement.
After perusal of the impugned judgment and award passed by Tribunal, it can be seen that the appellant has sustained fracture of shaft of left femur at middle 3rd, fracture of right side 6th rib and other injuries over the body and immediately after the accident, she was shifted to A.J. Hospital, Mangalore, where she was treated as in-patient from 05-03-2006 to 16-03-2006 and underwent a surgery there and thereafter treated at Mandya in Cauvery Nursing Home. Further, as the fracture was not united properly, she was shifted to St. John''s Hospital, where she was treated as in-patient for the period from 01-12-2007 to 10-12-2007 and she also underwent one more surgery and she also suffered permanent disability and discomforts. PW 8, Doctor on examination, noticed that there is shortening of left femur by 2 cms, difficulty in sitting, squatting, bearing weight, etc. and movements of the left hip are painful and limited. Check X-ray showed fracture union of left femur with implants insitu. Therefore, he assessed the functional disability in respect of limb at 33% and whole body disability at 16%. But, the Tribunal has re-assessed the whole body disability at 11%. The same is on the lower side for the reason that the injuries sustained is serious in nature and the appellant has undergone two surgeries. It definitely comes in the way of her doing day to day activities. She has to pull on the life with the said disability for the rest of her life. Therefore, having regard to the age, nature of injuries, surgeries undergone, duration of treatment, I accept and adopt the whole body disability at 16% as assessed by Doctor, to meet the ends of justice. However, the monthly income of Rs. 3,000/- assessed by Tribunal is just and proper and I accept the same. For the age of the appellant, the proper multiplier applicable is ''15'' as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in different Hospitals for nearly 22 days. During the period of treatment, the appellant must have undergone lot of unsaid pain and agony. Having regard to the nature of injuries sustained, I presume that she should have taken bed rest and follow-up treatment at least for a period of three months. Further, during the period of treatment, she would have spent reasonable sum towards conveyance, nourishing food and attendant charges apartment from incidental and medical expenses. Therefore, having regard to the nature of injuries sustained, age, avocation, disability and the nature and duration of treatment, I award a sum of Rs. 25,000/- towards loss of amenities, discomfort and unhappiness on account of disability as against Rs. 10,000/-; Rs. 9,000/- towards loss of income during treatment period, at the rate of Rs. 3,000/- per month for a period of three months as against Rs. 6,000/-; Rs. 86,400/- towards loss of future income (i.e. Rs. 3,000/- x 12x ''15'' x 16/100) as against Rs. 51,480/-; Rs. 85,000/- towards medical expenses including conveyance, nourishing food and attendant charges as against Rs. 75,000/-; and Rs. 10,000/- towards future medical expenses as against Rs. 5,000/- awarded by Tribunal. Thus, the appellant in all, would be entitled to a total compensation of Rs. 2,45,400/-, with interest at 6% per annum as against Rs. 1,81,440/- awarded by. Tribunal, and the break up is as follows:
In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned common judgment and award dated 22nd April 2008, passed in MVC No. 7059/2006, by the XVIII Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-4, Bangalore (SCCH-4), is hereby modified, awarding compensation of a sum of Rs. 2,45,400/-, with interest at 6% per annum, as against Rs. 1,81,440/-, awarded by Tribunal, excluding interest for the delayed period of 146 days in filing the appeal. There would be an enhancement of compensation of Rs. 63,960/- with 6% interest per annum.
The second respondent-Insurer is directed to deposit the enhanced compensation, with interest thereon at 6% per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment, excluding interest for the delayed period of 146 days in filing the appeal.
On such deposit by the Insurer, a sum of Rs. 30,000/- with proportionate interest shall be deposited in the name of the appellant in Fixed Deposit, in any nationalized or scheduled Bank, for a period of ten years, renewable for five years, with liberty reserved to the appellant to withdraw the periodical interest.
Remaining sum of Rs. 33,960/- with proportionate interest shall be released in favour of the appellant, immediately.
Office to draw award, accordingly.