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2020 DIGILAW 1743 (KAR)

Iravva Sanganbasappa Kaladagi,bagalkot-taluk v. Divisional Controller N W K R T C Chikkodi, Belgaum District

2020-09-07

SURAJ GOVINDARAJ

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JUDGMENT Suraj Govindaraj, J. - The appellant has approached this Court for enhancement of compensation ordered by the Member MACT No.III, Bagalkot (for short "the Tribunal") vide its judgment and award dated 26th September 2011 passed in MVC No.373/2009. 2. The tribunal by way of above judgment has awarded a sum of Rs.44,985/- with interest @ 6% p.a. in favour of the appellant for injuries sustained by him in the accident that occurred on 25.11.2008. 3. Heard. Admit. 4. With the consent of both the sides, the above appeal is taken up for final disposal at the stage of admission itself. 5. The occurrence of the accident and the involvement of the offending vehicle, which is insured by the respondent, is not in dispute; what is in dispute is only the quantum, which has been awarded. Hence, the details regarding the accident are not being adverted to herein. 6. The appellant-injured at the time of accident was aged about 53 years and has suffered following injuries: (i) compression fracture T12 vertebra; (ii) fracture of scopoid of right wrist; and (iii) abrasion over back. 7. The treating Doctor after examination has stated as under: (i) Tenderness over lumbar spine and right wrist; (ii) 25% restriction of lumbar spine movement; (iii) 20% restriction of right wrist movement; (iv) 25% loss of power of lumber spine muscles; (v) 20% loss of power of right wrist muscles. and has opined that the permanent and physical disability of the appellant was 30% to the right lower limb and 20% to the left lower limb. The Tribunal, however, took into consideration the whole body disability at 5%, which, according to the learned counsel for the appellant is on the lower side. According to him, when the left limb disability is 20%, and the right limb disability is 30%, the Tribunal could have never considered overall disability at 5%. The appellant being a coolie by profession, the same results in larger functional disability, since he would not be in a position to discharge his duties and earn his livelihood. 8. The tribunal awarded aforesaid amount on the following heads: Sl. No Heads of account Compensation awarded by the Tribunal 1 Loss of earning capacity 19,800/- 2 Medical expenses 6,885/- 3 Attendant Charges 800/- 4 Loss of amenities 2,500/- 5 Pain and suffering 15,000/- Total 44,985/- 9. 8. The tribunal awarded aforesaid amount on the following heads: Sl. No Heads of account Compensation awarded by the Tribunal 1 Loss of earning capacity 19,800/- 2 Medical expenses 6,885/- 3 Attendant Charges 800/- 4 Loss of amenities 2,500/- 5 Pain and suffering 15,000/- Total 44,985/- 9. Disability: Considering the certification of disability by the treating Doctor, though it would have been proper for the treating Doctor to give an opinion as regards whole body disability, he has not done so, leaving it to the Tribunal to arrive at a conclusion thereto. 5% disability as attributed by the Tribunal in my considered opinion is on the lower side and at least the disability of one of the limb ought to have been taken into consideration for the purpose of determination of compensation and as such I would take into consideration 20% disability being lower disability of both limb to be the disability of the whole body. 10. Income: The Tribunal has taken into consideration a sum of Rs.150/- to be the earning of the appellant per day. However, taking into consideration that the accident occurred on 25.11.2008, the notional income fixed as per the chart prepared for the purposes of the Lok Adalth for the year 2008 is Rs.4,250/- and that for the year 2009 is Rs.5,000/- Considering that the accident occurred in the last part of November 2008, I am of the considered opinion that the notional income for the year 2009 could be taken into consideration, which amounts to Rs.5,000/- per month. 11. Multiplier: The multiplier applicable to the appellant in terms of the decision of the Hon'ble Apex Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation & Another, (2009) 6 SCC 121 , would be 11. However, the Tribunal has taken the multiplier of 11, which is correct. 12. Hence, the loss of earning capacity would have to be calculated as under: Rs.5,000/- x 12 x 11 x 20% = 1,32,000/- 13. Attendant charges: The appellant was treated as an inpatient for ten days, which is also not in dispute, towards which the Tribunal has awarded a sum of Rs.800/- for attendant charges, the same is enhanced to Rs.1,500/-. 14. Medical expenses: There is no dispute as regards the amount awarded towards medical expenses being Rs.6,885/-. 15. Attendant charges: The appellant was treated as an inpatient for ten days, which is also not in dispute, towards which the Tribunal has awarded a sum of Rs.800/- for attendant charges, the same is enhanced to Rs.1,500/-. 14. Medical expenses: There is no dispute as regards the amount awarded towards medical expenses being Rs.6,885/-. 15. Pain and suffering : There is no dispute as regards the amount awarded towards pain and suffering being Rs.15,000/-. 16. Loss of amenities: The Tribunal has awarded a sum of Rs.2,500/- towards loss of amenities. Considering that the appellant is aged about 53 years and was laid up for a period of three months having a physical disability in both limbs, I am of the opinion that a sum of Rs.5,000/- ought to be awarded on this head. 17. Loss of income during laid up period: The Tribunal has not awarded any amount towards loss of income during laid up period. As aforestated considering that the appellant would have been laid up for a period of three months on account of the said injuries and the notional income being Rs.5,000/- per month. Hence, I am of the considered view that a sum of Rs.15,000/- (Rs.5,000/- x 3) ought to be awarded on this head. 18. Thus, in view of the above, the comparative table of compensation awarded by the Tribunal and by this Court is as under: Sl. No Heads of account Compensation awarded by the Tribunal Compensation awarded by this Court Enhanced compensation 1 Loss of earning capacity 19,800/- 1,32,000/- 1,12,200/- 2 Medical expenses 6,885/- 6,885/- - 3 Attendant Charges 800/- 1,500/- 700/ 4 Loss of amenities 2,500/- 5,000/- 2,500/- 5. Pain and suffering 15,000/- 15,000/- - 5 loss of income during laid up period - 15,000/- 15,000/- Total 44,985/- 1,75,385/- 1,30,400/- 19. Accordingly, I pass the following: ORDER (i) The appeal is partly allowed. (ii) The judgment passed by the Member MACT No.III, Bagalkot in MVC No.373/2009 dated 26th September 2011 is hereby modified. The appellants are entitled to enhanced compensation of Rs.1,30,400/- with interest @ 6% p.a. from the date of claim petition till the date of realization.