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2015 DIGILAW 49 (KAR)

M. Ajay v. Venkateshwara Hatcharies Pvt. Ltd.

2015-01-08

G.NARENDAR, N.K.PATIL

body2015
JUDGMENT This appeal by the claimant is directed against the impugned judgment and award dated 28th October 2010, passed in M.V.C.No.1224/2009, by the Presiding Officer, Fast Track Court-III, Mysore, (for short, ‘Tribunal’) for enhancement of compensation on the ground that, the compensation of Rs.6,15,000/-, awarded by Tribunal in his favour as against his claim for Rs.75,00,000/-, is inadequate. 2. The appellant claims to be aged about 19 years and prosecuting his studies in II Semester Engineering at VTU. He was hale and healthy prior to the date of accident. That at about 9:30 A.M., on 26-02-2007, when the appellant was moving on his motor cycle bearing Registration No.KA-09/EC-4356 towards Nanjangud, near Kadakota, K.E.B. Cross turning, he met with an accident on account of rash and negligent driving by the driver of a Goods Tempo bearing Registration No.KA-9/A-7303, which was coming from the opposite direction, at a high speed, in a rash and negligent manner. Due to the impact, the appellant fell down along with the vehicle and sustained head injury and became unconscious. Immediately, he was shifted to J.S.S. Hospital, Mysore and thereafter to B.G.S. Apollo Hospital for better treatment. 3. It is the case of the appellant, still he has not recovered from the grievous head injury and other injuries sustained in the road traffic accident and that his parents have spent considerable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated adequately. 4. On account of the grievous injuries sustained in the accident, the appellant, being in semi conscious condition, represented by his natural guardian, mother, Smt. M. Nagamani, had filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs.75.00 lakhs against the respondents. The said claim petition had come up for consideration before the Tribunal on 28th October, 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.6,15,000/- with interest at 6% per annum from the date of petition till the date of deposit. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 5. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 5. We have heard learned counsel for appellant and learned counsel for second respondent/Insurance Company, for considerable length of time. 6. The principal submission canvassed by learned counsel appearing for appellant, Shri. R.D. Renukaradhya is that, the Tribunal has committed a grave error much less material irregularity, resulting in serious miscarriage of justice, in not awarding reasonable compensation on account of the grievous injuries sustained by the appellant in the road traffic accident. He submitted that the compensation awarded by Tribunal towards loss of amenities discomfort and unhappiness, loss of future earnings and conveyance nourishing food and attendant charges is on the lower side and liable to be enhanced substantially. He further submitted that the Tribunal has failed to award any compensation towards loss of one academic year, loss of marriage prospects and future attendant charges, for the reason that on account of the grievous injuries sustained, he lost one academic year and because of the permanent disability, his marriage prospects are grim and he has to take the help of an Assistant in his entire future life for his day-to-day activities. He also submitted that due to the grievous head injury and other injuries sustained, the appellant took treatment as inpatient for more than five months and also underwent two major surgeries and the Doctor, PW2, has after medical clinical examination has assessed the permanent physical disability of the appellant at 100%. All these aspects of the matter have not been properly look into by the Tribunal, while computing compensation under various heads. Therefore, he vehemently submitted that the impugned judgment and award passed by Tribunal is liable to modified by awarding just and reasonable compensation for the grievous injuries sustained by the appellant in the road traffic accident. 7. As against this, learned counsel appearing for second respondent/Insurer sought to justify the impugned judgment award passed by Tribunal, stating that the same is passed after critical evaluation of the oral and documentary evidence available on file and hence, interference in the same is unwarranted. 7. As against this, learned counsel appearing for second respondent/Insurer sought to justify the impugned judgment award passed by Tribunal, stating that the same is passed after critical evaluation of the oral and documentary evidence available on file and hence, interference in the same is unwarranted. However, after careful perusal of the original records available on file and also considering the percentage of permanent disability and also the age of the appellant, he fairly submitted that reasonable enhancement of compensation be made by modifying the impugned judgment and award passed by Tribunal. 8. After hearing learned counsel for the appellant, learned counsel appearing for second respondent/Insurer and after perusal of the judgment and award passed by Tribunal including the original records placed before us, the only point that arise for our consideration in this appeal is, “Whether the quantum of compensation awarded by Tribunal is just and reasonable?” 9. After microscopic evaluation of the entire material available on file, including the original records, it reveals that, occurrence of accident and the resultant heady injury and grievous injuries sustained by appellant are not in dispute. It is also not in dispute that he was aged about 19 years at the time of accident and prosecuting his studies in II semester Bachelor of Engineering course. It is further not disputed that the vehicle in question was duly insured with the Insurer and the policy was valid as on the date of accident. 10. Admittedly, in view of the road traffic accident, the appellant has sustained severe head injury with compound depressed fracture, left frontal bone region and multiple haemorhagic contusion with brain stem injury and he is totally bed ridden with no useful speech, no power in both the upper and lower limbs. For treatment of the said injuries, he was in ICU for more than three months and was inpatient in BGS Apollo Hospital, for a period of 140 days. It is further stated that the appellant has not recovered from the accidental shock and injuries and underwent Trichastomy operation and is suffering from Dypolopia (double vision problem). During the period of treatment, the appellant underwent several surgeries and investigations. PW2, Doctor, looking at the grievous injuries sustained has opined that the appellant has no power in both upper and lower limbs and assessed the whole body permanent physical disability at 100%. During the period of treatment, the appellant underwent several surgeries and investigations. PW2, Doctor, looking at the grievous injuries sustained has opined that the appellant has no power in both upper and lower limbs and assessed the whole body permanent physical disability at 100%. Further, he opined that when he recently examined the appellant on 03/10/2010, the appellant was bed ridden and no useful speech, no useful power in both the upper and lower limbs and these are unlikely to recover in view of the severity of head injury. In support of the said injuries and disability, the appellant has produced inpatient record, outpatient record, X-rays, C.T. Scan at Exs.P15 to P19. It is further stated that the appellant is still in semiconscious state since the date of accident. The Tribunal, relying upon the oral evidence of PW1, the mother of appellant coupled with the evidence of PW2, Doctor and the supportive documentary evidence at Exs.P15 to P19, has accepted the whole body disability at 100% as assessed by the Doctor. The said assessed of permanent disability by the Tribunal is just and proper in our view and we uphold the same, having regard to the grievous injuries sustained by appellant and also the fact that the appellant is in vegetable condition. The appellant being aged about only 19 years at the time of accident, has to pull on the life with this disability for the rest of his life. Since he has not recovered from the accidental injuries, he has to depend upon the help of an Assistant for doing his day-to-day activities for the remaining part of his life. Because of the injuries sustained and permanent disability, his marriage prospects are seriously affected. 11. Further, it can be seen that the Tribunal has committed a grave error in assessing the notional income of the appellant at Rs.15,000/- per annum, which cannot be sustained for the reason that the appellant was a major, aged about 19 years and prosecuting his studies in II Semester B.E. and the accident has occurred in the year 2007. A person who has completed II year Pre-University course is, in fact, eligible for being appointed as a Second Division Assistant in the State or Central Government Department. Therefore, the Tribunal ought to have taken all these aspects into consideration while assessing the income of the appellant. A person who has completed II year Pre-University course is, in fact, eligible for being appointed as a Second Division Assistant in the State or Central Government Department. Therefore, the Tribunal ought to have taken all these aspects into consideration while assessing the income of the appellant. Further, it can be seen that, the appellant has produced the I Semester B.E. marks card issued by the Vishweshwariah Technological University, at Ex.P13. It is further stated that the appellant was a very bright and rank student in the College and was the only son to his parents. Therefore, considering the age, qualification and also the year of accident and all other relevant aspects, we are inclined to re-assess the monthly income of the appellant at Rs.7,000/- and accordingly, re-assess his monthly income at Rs.7,000/-, to meet the ends of justice. Further, it is stated that the appellant took treatment as inpatient for nearly 140 days on account of the grievous injuries sustained in the road traffic accident. During this period, he should have undergone lot of unsaid pain and agony and must have also spent substantial sum towards conveyance, nourishing food and attendant charges apart from incidental expenses. Further, due to the accidental injuries, the marriage prospects of the appellant is definitely going to be affected and considering the fact that he is not in a position to do his daily chores as a normal person and requires help of an attendant to do the daily chores, we feel that separate compensation is to be awarded towards future attendant charges and also loss of marriage prospects. Since the appellant was aged about 19 years at the time of accident, the proper multiplier applicable is ‘18’ as per the decision of the Hon’ble Apex Court in Sarla Verma’s case ( 2009 ACJ 1298 ). Therefore, having regard to the age, qualification, nature of injuries, nature and duration of treatment undergone, 100% physical permanent disability and also the facts and circumstances of the case on hand, we award a sum of Rs.75,000/- towards conveyance, nourishing food and attendant charges as against Rs.55,000/-; Rs.1,00,000/- towards loss of amenities, discomfort and unhappiness as against Rs.50,000/- ; and Rs.15,12,000/- (i.e. Rs.7,000/- x 12 x ‘18’ x 100%) towards loss of future income as against Rs.2,70,000/- awarded by Tribunal. 12. 12. Further, the Tribunal has failed to award any compensation towards loss of education, loss of marriage prospects and future attendant charges. Therefore, after re-appreciation of the oral and documentary evidence available on file and also considering the age of the appellant, qualification and also his pathetic condition, we deem it fit and proper to award Rs.50,000/- towards loss of education, Rs.1,00,000/- towards loss of marriage prospects and Rs.1,50,000/- towards future attendant charges. 13. However, the Tribunal, after assessing the oral and documentary evidence available on file, has rightly awarded compensation of a sum of Rs.1,75,000/- towards injury, pain and sufferings and Rs.65,000/- towards medical expenses, as per the medical bills and prescriptions. Hence, interference in the same is uncalled for. 14. 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 judgment and award dated 28th October 2010, passed in MVC No.1224/2009, by the Presiding Officer, Fast Track Court-III, Mysore, is hereby modified, awarding a sum of Rs.22,27,000/- as against Rs.6,15,000/- awarded by Tribunal, with interest at 6% per annum on the enhanced sum, from the date of petition till the date of realization. The breakup is as follows : Towards Pain and sufferings Rs. 1,75,000/- Towards Loss of amenities & enjoyment in life on account of disability Rs.1,00,000/- Towards Medical Expenses Rs.65,000/- Towards conveyance, nourishing food and attendant charges Rs.75,000/- Towards Loss of marriage prospects Rs.1,00,000/- Towards loss of education Rs.50,000/- Towards loss of future earnings Rs.15,12,000/- Towards future attendant charges Rs.1,50,000/- Total Rs.22,27,000/- There would be enhancement of compensation by Rs.16,12,000/- with 6% interest per annum. The second respondent/Insurance Company is directed to deposit the enhanced compensation of Rs.16,12,000/-, with interest thereon at 6% per annum, within three weeks from the date of receipt of copy of the judgment. On such deposit by the Insurance Company, a sum of Rs.14,00,000/- with proportionate interest shall be invested in the name of the appellant, in Fixed Deposit, in any scheduled/Nationalized Bank, for a period of ten years, renewable by five years, with liberty reserved to the mother and natural guardian, Smt. M. Nagamani, to withdraw the periodical interest on his behalf. Remaining sum of Rs.2,12,000/- with proportionate interest shall be released in favour of the appellant, through his natural guardian, mother, Smt. M. Nagamani, immediately. Office to draw award, accordingly.