The New Delhi Assurance Co. Ltd., Bangalore vs Chandrakumar Thimmaiah

Mrs. S. Sujatha, J. - This appeal is by the insurer challenging the Judgment and award passed by the Motor Accident Claims Tribunal, Tumkur (''Tribunal'' for short) in MVC No. 1253/2006.

Briefly stated the facts are, the claimant/injured instituted petition before the Tribunal seeking compensation for the injuries sustained by him in the road traffic accident on 16-10-2005 alleging actionable negligence on the part of the driver of the vehicle bearing No. KA-06/A-6503 duly insured with the appellant-insurer. The insurer resisted the claim. The Tribunal after evaluating the evidence, awarded total compensation of Rs. 4,84,000/- with interest at 6% p.a. Being aggrieved, the appellant is before this Court challenging the quantum of compensation as being excessive.

Learned counsel Sri K. Suryanagarayana Rao, appearing for the appellant assailing the impugned judgment and award would contend that the Tribunal having held that the injured has produced receipts and Exs. P7-P20 to establish that he had incurred medical expenses to the extent of Rs. 682/- grossly erred in awarding a sum of Rs. 1,00,000/- towards medical expenses and incidental expenses. Nextly, learned counsel submits that the compensation amount of Rs. 1,00,000/- awarded towards pain and agony is on higher side compared to the nature of injuries sustained by the injured i.e. crush injuries with open fracture of both bones of left leg and closed fracture of shaft of right humerus and swelling over fractured site. Thus, learned counsel seeks for reduction of the quantum of compensation awarded by the Tribunal.

Per contra, Sri Patel D. Karegowda, learned counsel appearing for the claimants justifying the impugned judgment and award would contend that the claimant was hospitalized for a period of 575 days and had undergone seven surgeries. Considering these aspects, the Tribunal has awarded a sum of Rs. 1,00,000/- towards medical expenses and incidental charges, which cannot be found fault with. Further, learned counsel submits that considering the nature and gravity of injuries sustained by the claimant being grievous and hospitalization period of 575 days, the Tribunal awarded a sum of Rs. 1,00,000/- towards pain and agony which is just and reasonable. It is further submitted that the compensation awarded towards loss of future earning capacity due to permanent disability is on lower side. Even assuming the claimant had not proved the income of Rs. 6,000/- p.m. as contended by him as a photographer, the claimant shall be entitled to a minimum monthly income of Rs. 3,500/- which is normally adopted by this Court in identical circumstances, which is fair and equitable. Thus no interference is called by the Hon''ble Court.

Heard the learned counsel for the parties and perused the material on record.

The factum of accident and nature of injuries sustained by the claimant is not in dispute. The percentage of disability assessed by the Tribunal at 35% for the whole body of the injured is also not in dispute. The main grievance of the appellant-insurer is with regard to the compensation awarded towards pain and agony and medical expenses and incidental charges at Rs. 1,00,000/- each. It is an admitted fact that claimant was hospitalized and taken treatment as an in-patient for nearly 575 days i.e. 350 days at M.S. Ramaih hospital, Bangalore and 225 days at ESI Hospital, Bangalore. A sum of Rs. 90,000/- would be just and reasonable compensation towards food, nourishment, attendant charges and conveyance charges for 575 days. A sum of Rs. 10,000/- would be appropriate compensation towards medical expenses in the absence of cogent evidence placed on record to establish the actual medical expenses incurred by the claimant, considering the nature of injuries sustained and the hospitalization period. It is an admitted fact that the claimant has sustained crush injuries with open fracture of both bones of leg besides fracture of shaft of right humerus and swelling over fractured site and undergone surgeries taking treatment as an inpatient for 575 days. Considering the same, this Court is of the opinion that a sum of Rs. 50,000/- would be reasonable compensation towards pain and agony. In view of normal determination of monthly income made by this Court in identical circumstances at Rs. 3,500/- for the victim of road traffic accident of the year 2005, this Court is of the considered opinion that the monthly income of the claimant can be safely redetermined at Rs. 3,500/-. Applying the same with multiplier 14, considering the age of the appellant as 42 years as per Ex. P22 with disability to the whole body at 35%, loss of income during treatment period, works out to Rs. 2,05,800/-. In view of the redetermination of monthly income made by this Court at Rs. 3,500/-, the claimant shall be entitled to loss of income during treatment period is Rs. 84,000/- (Rs. 3500 x 24).

With these modifications, the total compensation if calculated, the compensation awarded by the Tribunal at Rs. 4,84,800/- is more or less the same what would have been awarded. Considering the totality of the circumstances of the case, the total compensation of Rs. 4,84,000/- awarded by the Tribunal cannot be considered as exorbitant or excessive.

In the result, the appeal stands dismissed.

The amount in deposit shall be transferred to the jurisdictional Tribunal for disbursement.