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2011 DIGILAW 2239 (RAJ)

Bansilal v. Radhakishan

2011-10-18

MOHAMMAD RAFIQ

body2011
JUDGMENT 1. - This appeal has been preferred by the claimant-appellant dissatisfied with the quantum of compensation awarded by the Tribunal for the injuries sustained by him in the accident. 2. Contention of Shri Deelip Kawadia, learned counsel for the appellant is that Tribunal has not at all discussed the documents Exits.P-ll and 12 according to which, appellant was not even able to fully open his mouth till after five months of the accident and the accident resulted in his facial disfigurement. There were stitches over his forehead, chin anti nose. He suffered fracture of mandible region and there was cut on the upper lips and three teeth were also broken down. He had to undergo medical procedure for as many as nine months and for that he had to visit Dr. S.K. Deewan M.D.S. and Oral and Facio-Maxillary Surgeon at Ahmedabad. Although the Tribunal has awarded Rs. 25,000/- towards suffering of physical and mental agony and another Rs. 25,000/- for inconvenience that was caused to the appellant due to the injuries by him but nothing has been awarded by the Tribunal for loss of income of nine months and loss of capacity earning for future. In this respect, learned counsel referred to the income-tax returns filed by the appellant for the immediate proceeding two assessment years i.e. 1998-99 when his gross income was Rs. 1,52,282/- and Rs. 1,09,823/- in preceding assessment year i.e. 1997-98. In the assessment year 1999-2000, his income was Rs. 1,49,972/-. The appellant had to visit Ahmedabad on several occasions, which fact is fortified even from the award of the Tribunal, where it has granted amount towards transportation charges for travel by air and train; thus it was obvious that appellant had to remain away from the practice for quite some time and he was not able to fully open his mouth and there was partial restriction in opening of the mouth. Under this head, Tribunal ought to have awarded some reasonable amount of compensation, notwithstanding the fact that no permanent disablement was proved. 3. Per contra, Shri Anil Bachawat, learned counsel for the respondent-Insurance Company has argued that just and reasonable amount of Rs. 88,749/- has been awarded as compensation. Tribunal has awarded Rs. 25,000/- towards suffering of physical and mental agony and Rs. 25,000/- towards the inconvenience caused to the appellant due to the injuries sustained by him. 3. Per contra, Shri Anil Bachawat, learned counsel for the respondent-Insurance Company has argued that just and reasonable amount of Rs. 88,749/- has been awarded as compensation. Tribunal has awarded Rs. 25,000/- towards suffering of physical and mental agony and Rs. 25,000/- towards the inconvenience caused to the appellant due to the injuries sustained by him. So far as loss of income is concerned, learned counsel argued that even though the income-tax returns of three years have been filed but to say that there would have been 50% increase in the future income every year has not been substantiated. Income-tax returns of earlier years have not been filed. No evidence has been brought on record to show that for those nine months, appellant was not involved in practice or that there was any loss of earning capacity in future. Dr. S.K. Deewan M.D.S. and Oral and Facio-Maxillary Surgeon, who gave two certificates has not been called to appear in the witness box to prove those certificates and, therefore, Tribunal was not required to make any discussion thereabout. 4. Having heard learned counsel for the parties and perused the award, I find that though the aforesaid doctor has not appeared as witness to prove those documents forming part of the record but Tribunal has not even rejected those documents and has not even discussed those documents. Documents proved that appellant had to undergo the procedure of medical treatment for nine months and his mouth opening was partially restricted and even after five months of the accident, mouth opening remained partially restricted. Though the procedure of treatment was for nine months but the appellant had to in between remain away from the practice, which is evident from the fact that he had to visit Ahmedabad for time and again for his treatment to Dr. S.K. Deewan M.D.S. and Oral and Facio-Maxillary Surgeon at Ahmedabad. The Tribunal, therefore, committed error while awarding nothing under this head. The award of the Tribunal though call for no interference on other aspects of the award. However keeping them intact, I am persuaded to enhance the amount of compensation for the period nine months during which appellant remained under medical treatment. 5. In the result, the appeal is partly allowed. Amount of Rs. 3,000/- per month is assessed for loss of income for the period of nine months. Thus, Rs. However keeping them intact, I am persuaded to enhance the amount of compensation for the period nine months during which appellant remained under medical treatment. 5. In the result, the appeal is partly allowed. Amount of Rs. 3,000/- per month is assessed for loss of income for the period of nine months. Thus, Rs. 27,000/- is awarded/enhanced to the appellant, which is payable to him together with interest @ 7.5% from the date of filing of the claim petition i.e. 10.1.2000 till its realisation to the appellant by the Insurance Company i.e. respondent No. 3. Record be sent back to the Tribunal forthwith.Appeal Partly Allowed. *******