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2011 DIGILAW 1136 (PNJ)

AMANDEEP KAUR v. DHARAMENDER SHARMA

2011-04-28

K.KANNAN

body2011
JUDGMENT K. KANNAN, J. (ORAL) 1. The appeal is for enhancement of claim of compensation for injuries suffered in the accident. The Tribunal assessed the compensation at Rs.11,66,721/-that included Rs.1,20,000/-for disability caused and Rs.10,14,729/-for the medical expenses incurred, Rs.4000/-for special diet, Rs.4000/-for attendant charges, Rs.20,000/-for pain & suffering and Rs.4000/-for transport. 2. At the time of trial, PW2 Dr. Bimla Gouri, had deposed that she alongwith two other Doctors working in the Civil Hospital treated the petitioner for the fracture of the shaft of femur with fracture of both bones with degloving injury and the total disability was assessed to an extent of 60%. PW4 Dr. Salil Saha had treated her immediately after the accident and he referred to the fact that immediately after the injuries she was treated at ICU and once she was stable, her case was taken up for multiple surgeries. Her thigh bone was fixed with external fixator and her leg was also fixed with a fixator. Several skin grafting surgeries were done on account of the avulsion of the skin to cover up the exposed limb. Later on her thigh bone was also fixed with interlocking nail and discharged from the hospital on 10.5.2007. The evidence reveals that she had suffered surgeries that require admission and discharge over a period of time and prolonged treatment as brought out in the judgment of the Tribunal in paragraph 13(c). The expenses incurred had been fairly prodigious and the Tribunal had awarded the entire amount of medical expenses incurred. 3. At the said appeal since it was claimed that there had been a further deterioration in condition of the petitioner examined through Board constituted by the PGI and the Doctors have examined her again and the a statement has been produced before the Court that testifies to her present condition. Counsel for the appellant produces also a photograph of the present state of leg. The photograph is received in evidence and is exhibited as PW1/A. The report of the Doctor which is received and exhibited as Ex.PW1/B reads as under:- “Ms Amandeep Kaur, a case of Road Side accident on 26-11-2006, presented to the undersigned for the Medical examination. She underwent a detailed orthopedic evaluation by Dr. Kanojia, including fresh imaging studies. Based on that, it was found that, Ms. Amandeep Kaur had suffered a compound fracture of Left femur, and left both bones of leg. She underwent a detailed orthopedic evaluation by Dr. Kanojia, including fresh imaging studies. Based on that, it was found that, Ms. Amandeep Kaur had suffered a compound fracture of Left femur, and left both bones of leg. At present her disability assessed is 64% (sixty four percent) in her left lower limb, which is permanent in nature. As the patient is unable to squat, her day to day activities will be affected.” 4. Learned counsel contends that her marriage prospects have been completely ruined. She was a brilliant student, but she has not been able to undertake any strenuous activity skills as well. It is stated that she is working as a Teacher, and she had Diploma in Computer Education and she was also trained in stitching and weaving. Learned counsel states that her injury has squarely affected her earning skills as well. Learned counsel appearing on behalf of the respondent-insurance company would state that the Tribunal has assessed the compensation appropriately and there is no scope for an enhancement. He would contend that the disability assessed is only qua the limb and the whole body disability could not have been as more than 10%. Even such a disability has not resulted in any loss of earning skills and the assessment made at Rs.1,20,000/-for disability adequately compensates her and the other conventional heads of claim have been properly dealt with. 5. The method of assessing the compensates for injuries has been recently dealt with by the Hon'ble Supreme Court in Raj Kumar vs. Ajay Kumar, reported as 2010 (12) SCALE 265. It could be difficult to standardize the quantum of compensation in all cases and each case may require to be considered on its own peculiar facts. The Hon'ble Supreme Court has underscored the difference between the percentage of loss of earning capacity and the percentage of permanent disability and it shall be left to a Tribunal to determine the percentage of loss of earning capacity from the evidence led with reference to the injury and how the injury could impact the earning skills. In this case the Tribunal has awarded a compensation for disability at Rs.1,20,000/-which I would understand as going towards the assessment of loss of amenities. For a woman the degloving injury of leg is just not merely a loss of cosmetic value, but with the prospect of loss of marriage as well. In this case the Tribunal has awarded a compensation for disability at Rs.1,20,000/-which I would understand as going towards the assessment of loss of amenities. For a woman the degloving injury of leg is just not merely a loss of cosmetic value, but with the prospect of loss of marriage as well. The person has to be dependent on herself and has to earn. Looking at the photograph produced, it is possible to infer that the injury has been truly grievous and even her mobility could be seriously hampered. There has been gross wasting of muscles and the skin grafting done for avulsion caused to the surface of the skin has left a very ugly appearance. The leg looks bent and the claimant has a severaly affected gait. A functional disability to a leg which is assessed at 64% by the Medical Board, I would understand as constitute at least 25% of the earning skills and if I take an average income which she would have earned for a period of life at a modest sum of Rs.5000/-, the loss would be Rs.1250/-per month and I would adopt a multiplier of 18 and hold the loss of earning capacity at Rs.2,70,000/-. The loss of amenities has a distinct value, it could be noticed that the Tribunal has awarded Rs.1,20,000/-, I will increase the said head to Rs.2,50,000/-from Rs.1,20,000/-. The appellant has also given the evidence about the fact that she is not married and I have ascertained that she still remains unmarried and I would factor a compensation for loss of prospect of marriage at a lac of rupees. The Tribunal has awarded Rs.4000/-for special diet, Rs.4000/-for attendant charges. She has been hospitalized for nearly 7 months, therefore, I will increase the component of pain & suffering to a lac of rupees and increase also the compensation for attendant charges at a further sum of Rs.17,500/-@ Rs.2500/-per month for attendant charges and further a sum of Rs.15,000/-which is against Rs.4000/- awarded for extra diet. The additional amount of compensation will be Rs.5,74,500/-. This additional amount of compensation shall attract interest @ 6% from the date of petition till the date of payment. The liability shall be in the same manner as determined by the Tribunal. 6. The award stands modified and the appeal is allowed to the above extent. Appeal Allowed.