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Judgment
N.K. Patil, J.—This appeal by the claimant is directed against the common judgment and award dated 31st December 2010, passed in MVC No. 953/2009, by the Fast Track Court and Additional Motor Accident Claims Tribunal-II, Bhadravathi, (for short, ''Tribunal'') for enhancement of compensation on the ground that, the compensation of Rs. 3,89,000/- with interest @ 6% p.a. awarded in favour of the claimant as against his claim for Rs. 21,50,000/-, is inadequate. The appellant claims to be aged about 40 years and working as a Mason, earning a sum of Rs. 7,500/- per month and was hale and healthy prior to the date of accident. That the occurrence of accident at about 07:30 P.M., on 27-04-2009, when the appellant was riding the motor cycle bearing Registration No. KA-18/L-1285, on account of rash and negligent driving by the driver of Luggage carrying Trax bearing Registration No. KA-15/4496 is not in dispute. It is also not in dispute that the appellant has sustained grievous injuries and was shifted to Mc. Gann Hospital, Shivamogga and then to Wen-lock Hospital, Mangalore.
It is his further case that, on account of the accident, he sustained injuries stated above and for the treatment of the said injuries, he has spent reasonable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he 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. 21,50,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 31st December, 2010. 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. 3,89,000/- under different heads, with interest at 6% per annum on Rs. 3,69,000/- 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 also the Insurer.
Learned counsel appearing for appellant vehemently submitted at the outset that, the Tribunal grossly erred in not awarding reasonable compensation towards all the heads and further also erred in not assessing the reasonable income of the appellant, for the reason that the appellant was aged about 40 years and an experienced Mason and was hale and healthy prior to the accident. Therefore, he submitted that the compensation awarded by Tribunal is on the lower side and is liable to be enhanced reasonably. Further, he submitted that the multiplier adopted by Tribunal is ''14'', when in fact, it ought to have adopted the multiplier of ''15'' considering the age of the appellant as 40 years, as per the decision of the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . Therefore, the impugned judgment and award passed by Tribunal is liable to be modified accordingly.
As against this, learned counsel appearing for Insurer sought to justify the impugned judgment and award, stating that the same is passed after critical evaluation of the oral and documentary evidence available on file and hence, interference is not called for. However, after going through the entire material available on file, he fairly submitted that reasonable enhancement may be made towards injury, pain and sufferings, loss of amenities, discomfort and unhappiness and loss of income during treatment period and the impugned judgment and award may be modified accordingly.
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. 55,000/- towards medical expenses including conveyance, nourishing food and attendant charges. 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 massive lacerated wound on the front of the right thigh, knee and right leg, soft tissues exposed, bone fragment at thigh exposed, dorsalis pedis not felt, lacerated wound over forehead, abrasion on left thing and fracture of femur, tibia and fibula and there is amputation of right leg above knee. It is not in dispute that the appellant was in-patient for a period of four months from 28-04-2009 to 26-08-2009. Further, the Doctor has assessed the whole body disability at 50%, in view of amputation of leg above knee, which in my opinion, is just and proper and the Tribunal has rightly accepted the same, having regard to the age, avocation, nature of injuries sustained, disability and the facts and circumstances of the case. The appellant, being aged about only 45 years, has to endure this disability for the rest of his life. However, the monthly income of Rs. 3,000/- assessed by Tribunal is on the lower side and liable to re-assed. Having regard to the age, avocation and also the year of accident, I re-assess the monthly income of the appellant at Rs. 5,000/-, to meet the ends of justice. Further the Tribunal erred in assessing the age of the appellant as 46 years and adopting multiplier of ''14'' instead of assessing the age of the appellant as 40 years and adopting the multiplier of ''15''. It is observed by Tribunal at internal page 8 of its judgment that in voters'' Card, the age of appellant is shown as 37 years and the accident of the year 2009. Therefore, I hold that the appellant must be aged about 40 years as on the date of accident and adopt the multiplier of ''15'', as per the decision of the Hon''ble Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, as against ''14'' adopted by Tribunal. Admittedly, due to the injuries sustained in the accident, the appellant was inpatient in the Hospital for more than four months. During the period of treatment, the appellant must have undergone lot of unsaid pain and agony. He has also undergone amputation of leg above knee. Having regard to the nature of injuries sustained, I presume that he should have taken bed rest and follow-up treatment at least for a period of six months. Further, during the period of treatment, he 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 and the nature and duration of treatment, I award a sum of Rs. 1,00,000/- towards loss of amenities, discomfort and unhappiness on account of disability; Rs. 1,50,000/- towards pain and sufferings as against Rs. 50,000/-; Rs. 30,000/- towards loss of income during treatment period, at the rate of Rs. 5,000/- per month for a period of six months as against Rs. 12,000/-; Rs. 4,50,000/- towards loss of future income (i.e. Rs. 5,000/-x 12 x ''15'' x50/100) as against Rs. 2,52,000/- and Rs. 50,000/- towards future medical expenses as against Rs. 20,000/- awarded by Tribunal. Thus, the appellant in all, would be entitled to a total compensation of Rs. 8,35,000/-, with interest at 6% per annum as against Rs. 3,89,000/- 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 31st December 2010, passed in MVC No. 953/2009, by the Fast Track Court and Additional Motor Accident Claims Tribunal-II, Bhadravathi, is hereby modified, awarding compensation of a sum of Rs. 8,35,000/-, with interest at 6% per annum, as against Rs. 3,89,000/-, awarded by Tribunal. There would be an enhancement of compensation of Rs. 4,46,000/- with 6% interest per annum. The third 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.
On such deposit by the Insurer, a sum of Rs. 3,00,000/- 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. 1,46,000/- with proportionate interest shall be released in favour of the appellant, immediately.
Office to draw award, accordingly.