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2010 DIGILAW 281 (KAR)

S. Srinivas v. Palagani Gangadhara Rao

2010-03-03

D.V.SHYLENDRA KUMAR, K.N.KESHAVANARAYANA

body2010
Judgment :- Being dissatisfied with the quantum of compensation awarded in MVC No. 5233 of 2002, on the file of Judge, Court of Small Causes and Motor Accident Claims Tribunal, Bangalore, in terms of the judgment and award dated 3-2-2005 passed in the said case, the claimant has presented this appeal. 2. According to the case of the claimant-appellant he sustained type-III Compound fracture of right humerus with neuro vascular injury, in a motor accident that occurred on 15-7-2002 near New Noor Hotel, Chandragiri Cross, at Tirupathi, Andhrapradesh, involving the bus in which he was traveling and a lorry bearing Regn No AP-27 V-1139, which ultimately led to amputation of the right upper arm above elbow at shoulder joint level. He was treated in different hospital for 65 days, and he underwent surgery at St Johns Hospital, Bangalore and that he was a carpenter by profession and on account of the amputation he could not continue his avocation. 3. The insurer of the lorry involved in the accident contested the claim petition. 4. The tribunal on assessment of oral as well as documentary evidence, by the judgment under appeal, after answering the issue regarding actionable negligence in the affirmative, quantified the compensation payable to the claimant at Rs 2,94,800/-under different heads. It is for enhancement of compensation, the present appeal is filed by the claimant-appellant. 5. Upon service of notice of this appeal, the respondent-insurance company has entered appearance through its learned counsel. 6. We have heard Sri B S Shivakumar, learned counsel for the appellant and Sri Ravish Benni, learned counsel for the respondent-insurance company and perused the records. 7. According to the learned counsel for the claimant-appellant, the tribunal has committed error in assessing the functional disability on account of permanent disability incurred by the claimant-appellant at 30%, though the medical evidence on record establishes that the functional disability was to the extent of 90%. It is also the submission of learned counsel for the appellant that the income as assessed by the tribunal at Rs 3,000/- per month is also on the lower side, having regard to the skilled avocation which the claimant-appellant was pursuing. It is also the submission of the learned counsel that the compensation awarded under other heads is also grossly inadequate and deserves to be enhanced. 8. It is also the submission of the learned counsel that the compensation awarded under other heads is also grossly inadequate and deserves to be enhanced. 8. On the other hand, learned counsel for the respondent-insurance company sought to justify the award and contended that the monthly income of Rs. 3,000/- as assessed by the tribunal is just and proper, having regard to the evidence on record and does not call for any enhancement in this appeal. It is also submitted that having regard to the evidence on record, the functional disability could be taken at 50%. According to the learned counsel for the respondent-insurance company, the compensation awarded under the other heads are just and proper and does not call for interference. 9. We have perused the voluminous records produced by the claimant-appellant. As notice above, consequent to the injury sustained in the accident, the claimant-appellant has lost his right hand. Though initial injury was noticed as type-III compound fracture of the right humerus, ultimately it led to amputation on account of development of gangrene. On account of amputation, the claimant-appellant certainly could not continue his avocation as carpenter. The doctor, who is examined as a witness before the Tribunal, has categorically stated that on account of amputation of right hand of the claimant-appellant, the appellant has suffered functional disability to the extent of 90%. In spite of such clear evidence, the tribunal has assessed the functional disability only at 30%, without any rhyme or reason. When a professional medical practitioner, who is also an expert in the field and who has treated the claimant-appellant, has spoken before the court on oath that the claimant-appellant, has spoken before the court on oath that the claimant-appellant has suffered functional disability to the extent of 90%, in the absence of any other evidence, there are no reasons for doubting his testimony with regard to percentage of functional disability of the claimant at 90%. We find that the opinion furnished by the doctor is worthy of acceptance and could not have been rejected, having regard to the fact that the claimant-appellant being a carpenter could not pursue his avocation without his right hand. Therefore, the tribunal ought to have computed the loss of future earning by assessing the functional disability at 90%. 10. We find that the opinion furnished by the doctor is worthy of acceptance and could not have been rejected, having regard to the fact that the claimant-appellant being a carpenter could not pursue his avocation without his right hand. Therefore, the tribunal ought to have computed the loss of future earning by assessing the functional disability at 90%. 10. The claimant contended that he was earning a sum of Rs 200 to 250 daily as a carpenter and to support the said contention, he produced two certificates said to have been issued by an architect and the owner of a house as per ExP9 and 10. However, the authors of ExP9 and 10 have not been examined before the court. Even as per ExP9, he claimant was getting a sum of Rs 225/-on daily wage basis. ExP9 does not indicate that the claimant-appellant was a permanent employee under M/s Vijay Associates, which said to have issued ExP9. While it may be true that the claimant-appellant could have earned this amount whenever he worked with the said architect, the same cannot be a yardstick to assess the monthly earning of the claimant-appellant. 11. Having regard to the facts and circumstances, in our opinion, the tribunal is justified in assessing the monthly income of the claimant-appellant at Rs. 3,000/- per month. We also take notice of the fact that though the claimant-appellant is unable to pursue his avocation as a carpenter, he could do some other work, which does not involve use of his right hand and earn some amount, if not the same amount he war earning as a carpenter. Therefore, the monthly income as assessed by the tribunal at Rs 3,000/-is just and proper. The tribunal has correctly adopted multiplier of 16, as the claimant was aged about 31 years as on the date of accident. On the basis, the loss of future earning works to Rs 5,18,400/- (3000 x 12 x 16 x 90/100). 12. Having regard to the nature of injury sustained by the claimant nature and duration of treatment, we find that the compensation of Rs 60,000/-towards pain and suffering, as awarded by the tribunal, is on the lower side. On the basis, the loss of future earning works to Rs 5,18,400/- (3000 x 12 x 16 x 90/100). 12. Having regard to the nature of injury sustained by the claimant nature and duration of treatment, we find that the compensation of Rs 60,000/-towards pain and suffering, as awarded by the tribunal, is on the lower side. Therefore we deem it fit to enhance the same to Rs 1,00,000/-, in addition to this we are of the view that the compensation of Rs 15,000/- awarded by the tribunal towards loss of amenities is also on the lower side and requires enhancement as the claimant has permanently lost his right hand. Therefore, we award a further sum of Rs 60,000/-under this head making total compensation under this head at Rs 75,000/-, against the Rs 15,000/- award by the tribunal. 13. We do not find any ground to enhance the compensation awarded by the tribunal under other heads and therefore we retain the same. Thus, the claimant-appellant is entitled to a total compensation of Rs 7,40,000/- as against Rs 2,94,800/- awarded by the tribunal. 14. Accordingly, this appeal is allowed in part, enhancing the compensation to Rs 7,40,000/- as against 2,94,800/- awarded by the tribunal. The enhanced compensation of Rs 4,45,600/- shall carry interest at the rate of 6% p.a. from the date of claim petition till realization. The second respondent insurance company is directed to deposit the enhanced compensation with interest within four weeks from the date of receipt of a copy of this judgment. Out of the enhanced compensation, a sum of Rs 3,50,000/-with proportionate interest shall be kept in fixed deposit in any nationalized or scheduled bank for 10 years renewable for further period with liberty to the appellant to withdraw periodical interest quarterly. Balance amount with proportionate interest shall be paid to the appellant. Award be drawn accordingly.