Bhimasi vs Assistant Director Animal Husbandary and Veterinary Services and Others

A.S. Bopanna, J.—The appellant is before this Court seeking enhancement of the compensation as against the sum awarded in MVC No. 290/2009.

The appellant had suffered injuries in the accident which occurred on 25.11.2008. The Tribunal, on all heads has awarded the total compensation of Rs. 2,06,300/-. In so far as the nature of injuries suffered by the appellant there cannot be serious dispute inasmuch as the appellant in addition to examining himself before the Tribunal has also examined Dr. Vijay as PW.2 and Dr. Milind Kulkarni as PW.3. The case sheet is marked as Ex. P11 and the X-rays as Ex. P12. From the said records, it is seen that the appellant had suffered fracture of shaft right lower end femur and fracture 2nd, 3rd, 4th and 5th proximal phalanges of right foot. The Doctors have also stated with regard to the malunion of the bone and in that regard the Disability Certificate issued by the Doctor is produced and marked as Ex. P13. PW.2 who had treated the appellant has stated that keeping in view the nature of injuries suffered by the appellant he has suffered 46% disability to the whole body. The Tribunal has however reckoned only 10% as disability while determining the compensation. Having perused the records received from the Tribunal and having taken note of the evidence tendered by the Doctors as PW.2 and PW.3, it is seen that the Doctor more particularly PW.2 has in categorical terms stated that the appellant has suffered fractures and due to the malunion and keeping in view his avocation the disability would be at 46%. Though the Doctor has been cross-examined on this aspect there is nothing to indicate that the evidence as tendered by the Doctor has been discredited in any manner. Even if that be so, keeping in view the margin for error and further taking note of the avocation of the appellant inasmuch as he was doing manual work and presently he is almost restricted to the wheel chair as we had the misfortune of seeing him in the Court, we are of the opinion that the disability in any event cannot be less than 40%. Accordingly, we have reckoned the disability at 40%.

Further with regard to the income, the appellant claims that he was working as a mason. The avocation as stated by the appellant is not seriously disputed. It is no doubt true that there is no definite material to indicate the actual income of the appellant. However, while stating so we cannot lose sight of the fact that when such manual work is being undertaken more particularly in an unorganised sector, we cannot expect documentary evidence to establish the daily wage that is being earned by such person. Therefore, taking note of overall circumstance and that the accident had occurred in the year 2008, the appropriate income to be reckoned would be in a sum of Rs. 4,000/- per month. The multiplier as adopted by the Tribunal is appropriate one. Hence, if the said parameters are taken into consideration and the compensation is worked out towards the head, loss of future income, the amount would be in a sum of Rs. 3,26,400/-. The Tribunal has awarded a sum of Rs. 61,200/- under the said head. Hence, the appellant is entitled to a sum of Rs. 2,65,200/- as enhancement under the said head.

Further, having already taken note of the injuries suffered and the disability thereto, certainly the amount awarded under the head pain and sufferings is on the lower side. Hence, a further sum of Rs. 30,000/- is awarded under the said head. Further, it is noticed that the Tribunal has not separately awarded any amount towards loss of amenities and it has been clubbed along with the amount that has been awarded towards attendant charges and nutrition. Hence, we propose to retain the amount awarded by the Tribunal towards diet nutrition and attendant charges keeping in view that the appellant was hospitalised for 76 days. In that view, a sum of Rs. 40,000/- is awarded under the head loss of amenities. Since we have presently reckoned the income at Rs. 4,000/- per month, keeping in view the nature of injuries the laid up period would atleast be for 5 months and as such a sum of Rs. 20,000/- is awarded under the said head.

Hence, the appellant in all is entitled to the enhancement of Rs. 3,55,200/- with interest at the same rate as awarded by the Tribunal. The enhanced portion of the amount with interest shall be deposited by the respondents within six weeks from the date of receipt of copy of this judgment. On deposit, the entire amount shall be disbursed to the appellant.

In terms of the above, the appeal stands allowed-in-part.