V. Satish vs Bajaj Alliaz General Insurance Company Limited and Others

R.S. Chauhan, J.—1. Mr. V. Satish, the appellant, has challenged the legality of the award dated 4.12.2009, passed by the Motor Accident Claims Tribunak, Bangalore City, MACT-16, in MVC. No. 230/2008.

Briefly the facts of the case are that on 27.11.2007, at about 11.45 a.m., Mr. Satish and Mr. Nagaraj were going on a motorbike, bearing registration No. KA-02-HA-2309. When they approached near the Kala Bhyraveswara Petrol Bunk, NH-48 Road, Bellur Cross, Nagamangala Taluk, Mandya District, a lorry, bearing registration No. KA-12-6719, loaded with wooden logs, came from the Mangalore side, in a rash and negligent manner, and dashed against the motorcycle. Due to the accident, Mr. Nagaraj was dragged to a distance of 50 to 60 feet, and since wheels of the lorry ran over his stomach, Mr. Nagaraj expired on the spot. Also due to the accident, the appellant- Mr. Satish, suffered five injuries, out of these five injuries, he suffered Type-1 compound fracture on the right tibia, comminuted fracture on the right femur, transverse fracture of right acetobylum, fracture of superior and inferior remi left pubic bone and head injury. Due to these injuries, he was hospitalized from 28.11.2007 to 27.12.2007 and again from 30.1.2008 to 18.3.2008. Since the appellant suffered these injuries and was hospitalized, he filed a claim petition before the learned Tribunal. In order to substantiate his case, the appellant examined three witnesses, and submitted seventeen documents. However, the Insurance Company neither examined a witness, nor submitted any document. After going through the oral and documentary evidence, the learned Tribunal granted compensation of Rs. 2,96,900/- along with interest at 6% p.a. from the date of petition till the date of release to the appellant. Hence, this appeal for enhancement of the compensation.

Smt. Y.N. Leelavathi, the learned counsel for the appellant, has raised three pleas before this Court: firstly, the learned Tribunal has misread the entire evidence on record with regard to the injuries suffered by the appellant. Although the learned Tribunal has noticed the fact the claimant had suffered five injuries, out of which, two were grievous, three were simple, but has totally ignored the fact that the appellant had suffered four fractures.

Secondly, despite testimony of Mr. Satish (P.W.2) and testimony of Dr. Shivaprasad M.S., (PW-3), the learned Tribunal has ignored the fact that even in future, the appellant would be required to incur medical expenses as the implants placed in his body would need to be removed. Moreover, according to Mr. Satish, (PW-2), the appellant will have to undergo knee and hip replacement surgeries on the right side in future.

Thirdly, considering the fact that the appellant had suffered multiple fractures on the body, the compensation of Rs. 30,000/- for the category of ''pain and suffering'' is on the lower side. Therefore, the compensation in the category of ''pain and suffering'', and loss of amenities in life'' need to be enhanced, and also the compensation needs to be paid for ''future medical expenses''.

On the other hand, Mr. O. Mahesh, the learned counsel for respondent No. 1, Insurance Company, has placed the following contentions:-

"Firstly, the compensation awarded is not meant to be a bonanza. According to the learned counsel, for the injuries suffered by the appellant, sufficient compensation has been paid in the category of ''pain and suffering'' and in the category of loss of amenities in life''.

Secondly, there is no evidence on record to show that the appellant has undergone either the removal of implants, or any hip replacement during the pendency of this appeal before this Court. Therefore, this Court would not be justified in granting any compensation for future medical expenses likely to be incurred by the appellant. Therefore, the learned counsel for the Insurance Company has supported the impugned award."

Heard the learned counsel for the parties, and perused the impugned award.

A bare perusal of paras-17, 18 and 19 of the award clearly reveals that the learned Tribunal did notice the fact that the appellant had suffered four fractures across his body. Yet in para-19, the learned Tribunal has merely looked at the nature of the injuries, whether they are simple or grievous, and has merely granted a compensation of Rs. 30,000/- for the ''pain and suffering''. The learned Tribunal has ignored the fact that due to the fractures suffered by the appellant in different parts of the body, he will continue to suffer pain for the rest of his life. At the time of the accident, the appellant was a young man of 30 years. He certainly has many more years to live, and yet the compensation in the category of ''pain and suffering'' is merely Rs. 30,000/-. Therefore, this Court enhances the compensation in the category of ''pain and suffering'' from Rs. 30,000/- to Rs. 80,000/-.

Even the compensation paid for the loss of amenities in life'', which is merely Rs. 10,000/-, seems to be on the lower side. Considering the fact that according to PW-2, the appellant had suffered disability on the right lower limb, considering the fact that he had suffered fracture of the right femur and the right tibia, obviously his ability to walk, climb and to squat are adversely affected. Yet a mere compensation of Rs. 10,000/- has been granted by the learned Tribunal. Hence, this Court is of the opinion that the said compensation should be increased by another sum of Rs. 50,000/-. Thus, the compensation is enhanced for loss of amenities in life'' from Rs. 10,000/- to Rs. 60,000/-.

Although the learned counsel for the Insurance Company is justified in claiming that there is no evidence produced by the appellant to show that he has to undergo knee or hip replacement, but nonetheless, the fact does remain that there is sufficient evidence to show that implants were put in his body in order to ensure that the fracture is healed. According to PW-2, there is a possibility the appellant would have to undergo knee and hip replacement in future, although the future time limit is undefined. But, a grave possibility does exist that the appellant has to have the implants removed. This possibility cannot be ignored. Thus, the learned Tribunal should have granted a compensation for ''future medical expenses'' as the appellant would incur the same. However, the learned Tribunal has failed to grant any compensation for ''future medical expenses''. Therefore, keeping in mind the expensive medical treatment prevailing in this country, this Court grants a compensation of Rs. 1 lakh to the appellant for his "future medical needs". In respect of all other heads, the compensation granted by the learned Tribunal is just and proper. Thus, the claimant-appellant is entitled for total compensation of Rs. 4,96,900/-, which is as under:

Accordingly, the appeal is partly allowed. The judgment and award passed by the learned Tribunal is modified; the claimant-appellant is granted an enhanced compensation of Rs. 2,00,000/- along with interest at the rate of 6% p.a. from the date of petition till the date of realisation. Since there is delay of sixty-seven days in filing the appeal, the claimant-appellant is not entitled to the interest for the said period. The respondent-Insurance Company is directed to deposit the enhanced amount through a demand draft in the name of the claimant-appellant, before the learned Tribunal, excluding the interest for the delayed period. The learned Tribunal is directed to release the amount in favour of the claimant-appellant forthwith.