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2010 DIGILAW 781 (KAR)

N. R. Srinivasa v. Kongaiah

2010-07-02

B.SREENIVASE GOWDA

body2010
JUDGMENT B. Sreenivase Gowda, J.— This appeal is by the claimant for enhancement of compensation awarded by the Tribunal. 2. For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal. 3. The brief facts of the case: On 17th April, 2003 when the claimant was proceeding in an autorickshaw bearing registration No. KA-10-4948 on the extreme left side of the road near Star Function Hall, P & T Colony, Bangalore, a tempo bearing registration No. KA-04-9527 came in a rash and negligent manner and dashed against the autorickshaw. As a result, he sustained injuries. Hence, he filed a claim petition before the MACT, Bangalore seeking compensation of Rs. 7,50,000. The Tribunal awarded him a compensation of Rs. 94,800/- with interest at 6% p.a. 4. As there is no dispute regarding injuries sustained by the claimant in a motor road accident and liability of the Insurance Company, the only point that arises for my consideration in the appeal is: Whether the compensation awarded by the Tribunal is just and reasonable or does it call for enhancement? 5. After hearing the learned Counsel appearing for the parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it is required to be enhanced. 6. The claimant has sustained the following injuries: (a) Tenderness over the right lip (b) Fracture of neck femur right side The injuries sustained by the claimant are evident from the Wound Certificate Ext-P-5, Case Sheet Ex. P-7, X-rays Ex.P-8 and supported by oral evidence of the claimant and doctor, who were examined as P Ws-1 and 2 respectively. Immediately after the accident, the claimant was shifted to Bowring Hospital and took first aid treatment and from there he was shifted to Sanjay Gandhi Hospital, where he was treated as inpatient till 23rd April, 2003 and treated conservatively. Again, he was shifted to Bowring and Lady Carzon Hospital and treated as inpatient from 23rd April, 2003 to 31st May, 2003. He underwent surgery of open reduction and internal fixation to his right leg and was discharged with the advice of follow up treatment. Again, he was shifted to Bowring and Lady Carzon Hospital and treated as inpatient from 23rd April, 2003 to 31st May, 2003. He underwent surgery of open reduction and internal fixation to his right leg and was discharged with the advice of follow up treatment. Again, he was admitted to the same hospital on 10th December, 2003 as there was severe pain and infection at the fractured site and his right leg was re-operated and the nails and screws were removed and rod was implanted and was discharged on 3rd January, 2004. PW-2, Dr. Prakashappa has stated that the claimant has sustained fracture of neck of femur (right) and underwent surgery. He has further stated that the claimant has suffered disability to an extent of 51% to the right lower limb and 7% to the whole body. During the recent examination, the doctor found the following: (a) Pain in the right hip (b) Patient limps while walking and difficulty in squatting (c) Flexion of right hip last 40' (d) International and external rotation of the right hip each reduced by 15'. 7. Considering the nature of injuries particularly fracture of neck of femur, Rs. 30,000/- awarded by the Tribunal towards 'pain and suffering' is on the lower side and it is deserved to be enhanced by another Rs. 10,000/- and award Rs. 40,000/- under this head. 8. As Rs. 5,000/- awarded by the Tribunal towards 'medical expenses' is based on the medical bills of Rs. 4,736 produced by the claimant, there is no scope for enhancement under this head. 9. Considering the nature of injuries and duration of treatment, Rs. 5,000/- awarded by the Tribunal towards 'conveyance, nourishment and attendant charges' is on the lower side and it is deserved to be enhanced by another Rs. 10,000/- and I award Rs. 15,000/- under this head. 10. The claimant in support of his contention that he was earning a sum of Rs. 6,000/- per month by working as an auto driver, except producing the driving licence, has not produced any other documents. In the absence of proof of income, the Tribunal has rightly assessed his income at Rs. 3,000/- per month. The nature of injuries suggest that he must have been under rest and treatment for a period of 5 months and therefore a sum of Rs. In the absence of proof of income, the Tribunal has rightly assessed his income at Rs. 3,000/- per month. The nature of injuries suggest that he must have been under rest and treatment for a period of 5 months and therefore a sum of Rs. 15,000/- is awarded towards ' loss of income during laid up period' as against Rs. 7,000/- awarded by the Tribunal. 11. When, PW-2, the doctor has stated that the claimant has suffered disability to an extent of 51% to the limb and 17% to the whole body, the Tribunal is not justified in assessing the disability caused to the whole body at 7%. The claimant claims to be a driver and after sustaining fracture of neck of femur, it cannot be said that he can do his job as an auto driver and earn the same amount which he was earning prior to the accident. The claimant is aged about 36 years and the multiplier applicable to his age group is 15. Therefore, the loss of future income' works out to Rs. 81,000/- (3,000x15/100x12x15) and it is awarded as against Rs. 37,800/ - awarded by the Tribunal. 12. Despite awarding 'future loss of income' the claimant has to bear with disability stated by the doctor and certain amount of discomfort and unhappiness throughout his life. Therefore, Rs. 10,000/- awarded by the Tribunal towards' loss of amenities' is on the lower side and it is deserved to be enhanced by another Rs. 10,000/- and I award Rs. 20,000/- under this head. 13. The claimant was operated by inserting rod and it is required to be removed and he has to undergo one more surgery. Therefore, it is just and proper to award a sum of Rs. 5,000 'future medical expenses' and it is awarded. 14. Thus, the claimant is entitled for the following compensation: (a) Pain and suffering Rs. 40,000/- (b) Medical expenses Rs. 5,000/- (c) Conveyance, nourishment and attendant charges Rs. 15,000/- (d) Loss of income during laid up period Rs. 15,000/- (e) Loss of future income Rs. 81,000/- (f) Loss of amenities Rs. 20,000/- (g) Future medical expenses Rs. 5,000/- Total Rs. 1,81,000/- 15. Thus, the claimant is entitled for a total compensation of Rs. 1,81,000/- as against Rs. 94,800 awarded by the Tribunal with interest at 6% p.a. on the enhanced compensation of Rs. 15,000/- (e) Loss of future income Rs. 81,000/- (f) Loss of amenities Rs. 20,000/- (g) Future medical expenses Rs. 5,000/- Total Rs. 1,81,000/- 15. Thus, the claimant is entitled for a total compensation of Rs. 1,81,000/- as against Rs. 94,800 awarded by the Tribunal with interest at 6% p.a. on the enhanced compensation of Rs. 86,200/- from the date of claim petition till the date of realisation. 16. The Insurance Company is directed to deposit the enhanced compensation amount with interest within two months from the date of receipt of a copy of this order. 17. Out of the enhanced compensation, 50% of the amount with proportionate interest is ordered to be invested in fixed deposit in any Nationalised Bank/Scheduled Bank/Post Office in the name of claimant for a period of 7 years. Remaining 50% with proportionate interest is ordered to be released in favour of the claimant immediately after the deposit. 18. Accordingly, the appeal is allowed in part. The judgment and award passed by the Tribunal is modified to the extent stated hereinabove. 19. No order as to costs.