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1995 DIGILAW 528 (KAR)

KUMAR IQBAL v. REHMAN KHAN H.

1995-10-31

S.VENKATARAMAN

body1995
KUMAR IQBAL, J. ( 1 ) THOUGH this matter has come up for admission as both sides are represented and as the lower court records have also been received, by consent the matter is heard on merits. ( 2 ) THE appellant who sustained injuries in an accident which took place on March 4, 1989 has sought for enhancement of compensation awarded by the Tribunal. ( 3 ) THE appellant sustained fracture of left ulna, fracture of left pubic symphysis and an injury to ulna nerve apart from multiple lacerated injuries on the forearm and left arm with extensive loss of skin. Skin-grafting was done. The doctor who examined him on January 25, 1991,. e. , nearly two years after the accident has deposed that there are residual effects of fractures and a gross scar on the left arm with clawing of the left hand fingers. He has further stated that the injuries to ulna nerve had continued. He has opined that the appellant suffered 30 per cent permanent disability of the left arm and 12 per cent permanent disability of the whole body. He has further stated that the appellant cannot now use left hand for any purpose including holding of objects, grasping or carrying any objects, etc. ( 4 ) THE Tribunal has awarded compensation as hereunder : (1) Injuries, pain and suffering Rs. 15,000/-, (2) Expenses Rs. 1500/-, (3) Loss of income for three months Rs. 900/-, (4) Loss of future income and loss of amenities of life Rs. 20,000/-, Total Rs. 37,400/ -. ( 5 ) THE main contention of the learned counsel for the appellant is that as the appellant has now lost the use of his left hand and as he was working as a cleaner which job he cannot now carry on, the disability must be taken at 100 per cent and the award of Rs. 20,000/- not only towards loss of earning capacity but also loss of amenities is grossly inadequate. He also contended that as the appellant was not earning anything the Tribunal ought to have awarded loss of full earnings up to the date of judgment. ( 6 ) THE medical evidence no doubt shows that on account of the injuries sustained the appellant has now practically lost the use of his left hand. He also contended that as the appellant was not earning anything the Tribunal ought to have awarded loss of full earnings up to the date of judgment. ( 6 ) THE medical evidence no doubt shows that on account of the injuries sustained the appellant has now practically lost the use of his left hand. But the contention that the appellant must be held to have suffered 100 per cent loss of earning capacity cannot be accepted. The appellant still can carry on the work with his right hand and though there would necessarily be reduction in his earning capacity as he has to work only with right hand, the loss of earning capacity cannot be taken at 100 per cent. The evidence of the doctor does not show that the appellant was not in a position to carry on any work even when he was examined by him on January 25, 1991. Even according to the appellant he took treatment for 3 to 4 months after he was discharged. He was an in-patient in the hospital for one month and 8 days. As such at best he could have lost his earnings totally for a period of about 6 to 7 months. The Tribunal has awarded loss of earnings at rs. 300/- per month for only 3, months. The appellant was working as a cleaner and his evidence shows that apart from Rs. 300/-he was also getting batta of Rs. 10/- per day. The batta earned should also have been taken into consideration for the purpose of determining the income. Even if we take that he would have earned batta for about 20 days in a month the income of the appellant should have been taken at Rs. 500/- per month. The loss of earnings for 6 months comes to Rs. 3,000/- and the Tribunal should have awarded this amount towards loss of earnings. ( 7 ) ON account of the injury caused to the left hand the loss of future earnings could be taken at about Rs. 150/- per month or Rs. 1,800/- per annum. The age of the appellant at the time of the accident was 20 years. Considering his age and also considering the circumstances that he has lost the prospects of becoming a driver, which was his ambition, I think it would be just and reasonable to award a sum of Rs. 150/- per month or Rs. 1,800/- per annum. The age of the appellant at the time of the accident was 20 years. Considering his age and also considering the circumstances that he has lost the prospects of becoming a driver, which was his ambition, I think it would be just and reasonable to award a sum of Rs. 30,000/- towards loss of earning capacity. Apart from this, the appellant is also entitled to compensation under the heading loss of amenities of life. As he has now lost the use of his left hand, a sum of Rs. 10,000/- is awarded towards loss of amenities of life. The total compensation payable comes tors. 59,500/ -. ( 8 ) FOR the above reasons this appeal is allowed in part and the judgment and award of the tribunal are modified by fixing the compensation at Rs. 59,500/- together with costs and interest at the rate awarded by the Tribunal. As the insurer has collected the extra premium to cover the cleaner, insurer is liable to pay the enhanced compensation also. Advocate's fee Rs. 1,000/ -.