ORDER 1. This order shall also govern the disposal of connected appeal No.1638 of 2008 filed by the Insurance Company against the same award. Facts are common for disposal of these appeals. Both appeals challenge quantum of compensation awarded by the Xth MACT Indore in MV Case No.88/ 2006. 2. Necessary facts in brief, as found by the Tribunal and which are no longer in dispute, are that on 21.12.2005, appellant met with an accident. A Scorpio, bearing registration No. MP 09-B 5212 hit the appellant's scooter causing grievous injuries including compound comminuted fracture of Right tibia fibula and fracture of left medial malleolus. At the relevant time, respondent No.1 was driving the offending vehicle (Scorpio), which belonged to his father respondent No.2, and it was insured with respondent No.3. Tribunal found that respondent No. 1 was responsible for the said accident on account of his rash and negligent driving, therefore, directed respondents jointly and severally to pay Rs.1,90,000/- as the amount of compensation. 3. At the time of hearing of appeals, we requested Shri Anil Goyal Advocate to act as amicus-curiae. True to the noble and high traditions of the Bar, Shri Goyal, discharged his duties as an amicus-curiae and we record our sincere thanks to Shri Goyal for the assistance rendered by him in order to decide this appeal. Shri Goyal filed an application under Order 41 Rule 27 to bring on record subsequent X-ray reports and the disability certificate issued by the MYM Medical Board. In absence of any objection by the learned counsel for the insurance company and owner and driver of the offending vehicle, additional evidence was allowed in the interest of justice and with the consent of learned counsel for the parties, we proceed to decide the appeal on merit. Now, in the light of the evidence available on record, the question is, does the amount awarded by Tribunal represent just amount of compensation? 4. No doubt it is true that tragic loss of life or limb cannot be scaled in the golden balance. It is extremely difficult to assess monetary loss on account of permanent disability, more so when the affected person has to live with it throughout his/her life. Some element of arbitrariness or guesswork, some hypothetical sympathy linked with the nature of disability caused is inevitable involved in arriving at the quantum.
It is extremely difficult to assess monetary loss on account of permanent disability, more so when the affected person has to live with it throughout his/her life. Some element of arbitrariness or guesswork, some hypothetical sympathy linked with the nature of disability caused is inevitable involved in arriving at the quantum. However, all such elements are required to be viewed with objective standard with pragmatic approach. 5. Evidence on record shows that appellant had sustained Grade III compound comminuted fracture right tibia and fibula and fracture of left medial malleolus. Initially he remained in Suyash Hospital as indoor patient from 21.12.2005 to 2.01.2006. On 21.12.2005 Dr. PathakAW3 performed surgical operation as part of treatment of fracture of left medial malleolus. It clearly stands out from the evidence of Dr. Pathak, AW3, that during operation, Ischemic changes in ECG were noticed, and therefore no operation could be performed on the right leg. In paragraph 10 of his cross examination, Dr. Pathak denied the suggestion put to him that angulation at the fracture site was due to lack of treatment. He stated he could not perform the remaining operation due to heart attact. As per Ex. Pl0 certificate dated 9.4.2007, issued by Dr. Pathak, appellant was under his continuous treatment and-might require further reconstructive surgery on his right lower limb and the expenditure would be between Rs.75,000 to Rs,1,00,000/-. As per Ex. P/116 Certificate dated 20.12.2007, Ex. P. 116, Dr. Pathak found persistent local tenderness and mild limitation right ankle range of motion and shortening right lower limb by one inch. According to Dr. Pathak, appellant sustained permanent disability of20% of right lower limb; whereas Certificate of M.Y.M. Medical Board has assessed permanent disability to the extent of 25%. There is no rebuttal evidence adduced by the respondents. Appellant also stated in his evidence prior to accident, he was working as Sales Manager with Khandwal Agencies Pvt. Ltd. His gross monthly income was Rs. 9,250/-. After accident, appellant is rendered jobless and at the being of hearing it was stated that now appellant and wife-are wholly dependent upon the son and living with him at Bangalore. 6. It is in this factual backdrop, learned claims Tribunal awarded a total sum of Rs. 1,90,000/- break up whereof is as under:- A. Disability Rs 50,000/- B. Phy.
After accident, appellant is rendered jobless and at the being of hearing it was stated that now appellant and wife-are wholly dependent upon the son and living with him at Bangalore. 6. It is in this factual backdrop, learned claims Tribunal awarded a total sum of Rs. 1,90,000/- break up whereof is as under:- A. Disability Rs 50,000/- B. Phy. & Mental Pain Rs 25,000/- C. Medical and other heads Rs 1,00,000/- D. Loss of two month's income Rs 15,000/- Total Rs.1,90,000/- 7. After having heard the rival submissions, and going through records of the Tribunal, it is clear to us that there is no merit and substance in the cross appeal of the Insurance Company, the amount awarded by the learned MACT is on the lower side and the amount deserves to be enhanced to make it just and proper amount of compensation. Learned Counsel for the insurance company laid emphasis on this aspect of the case that because of Ischemic changes, the line of treatment was shifted towards the treatment of Ischemic problem and most of the expenditure on medicine was incurred to over come that medical complication. We do not see force in this submission. The Appellant met with a serious accident. He was brought to Hospital in an unconscious or semi-unconscious stage. One can very well imagine general traumatic effect on the appellant because of the accident. If in such a state of affair, Ischemic changes were noticed in ECG during operation it may not be unusual. No evidence worth its salt has come on record nor was any suggestion put to Dr. Pathak that as a direct result of operation, the patient suffered a mild heart attack. If during the orthopedic surgery a patient develops some heart problem, then he cannot be left to lurch. Treating Doctor is duty bound to provide all possible help to save such patient, as was done in the case in hand. From evidence on record, it is clear that both aspects are so intermingled that they cannot be separated apart and cannot be looked with putting on blinker. 8. In the facts and circumstances of the case in hand, it could not be held that appellant did not suffer any permanent disability, he lost his job and now is totally dependent on his son. To mitigate son's expenses, appellant has shifted to Bangalore to live with son.
8. In the facts and circumstances of the case in hand, it could not be held that appellant did not suffer any permanent disability, he lost his job and now is totally dependent on his son. To mitigate son's expenses, appellant has shifted to Bangalore to live with son. In view of the permanent disability, movement in the affected limb is impaired. Tribunal has not awarded any sum towards future medical expenditure. Considering overall facts and circumstances, including the medical papers, we deem it fit to award a further sum of Rs. 25,000/- on this head. Tribunal has awarded Rs.5,000/- towards the loss of income for two months only. From material available on record it is clear that appellant has lost his job. Tribunal assessed the monthly income of the appellant at Rs.7,500/-.As per schedule, appellant is entitled to recover 90,000/- as loss of income for twelve months instead of Rs.15,000/- as award by the Tribunal. Tribunal has not considered that because of the fracture in both legs, appellant underwent prolonged treatment and required the help of an attendant for performing his daily requirements and needs. On this head, we feel that the appellant is intitled to get Rs.10,000/-.From the medical papers it is now clear that the appellant was required to visit the hospital for X-Rays. Obviously, he must have spent amount on conveyance, therefore, on this head we would allow him Rs.10,000/-.We feel that Rs.5,000/- should be awarded towards special diet. Compensation awarded by the Tribunal on other heads does not call for any interference. Thus, the appellant is entitled to recover jointly and severally from respondents a total sum of Rs.3,15,000/-instead of Rs.1,90,000/- as awarded by the Tribunal. 9. In view of the foregoing discussion, the appeal preferred by the insurance company is dismissed and the appeal preferred by the claimant is partly allowed to the extent indicated hereinabove. The enhanced amount shall carry simple interest @ of six percent per annum from the date of this order till it is actually paid to the appellant. There shall be no orders as to costs. Ordered accordingly. Let a copy of this order be retained in the file of M.A.No.1638/2008.