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Judgment
S. Sujatha, J.—This appeal is directed against the judgment and award dated 8.9.2010 passed by the Motor Accident Claims Tribunal, (for short the '' Tribunal'') Bangalore, in MVC No.3418/2009.
The facts in brief are that, the claimant approached the Tribunal seeking compensation for the injuries sustained by him in the road traffic accident, which occurred on 7.4.2009 while he was riding his motorcycle bearing registration No. KA.04.EQ.8916, owing to the actionable negligence of the driver of the Auto bearing No. KA.52.3686 owned by respondent No.1 herein and insured with respondent No.2 herein.
On service of summons, the Insurer entered appearance and contested the claim. On evaluation of the evidence on record, the Tribunal awarded total compensation of Rs.3,11,400/- with interest at the rate of 6% per annum from the date of petition till the date of realization. Aggrieved by the same, the appellant/claimant is in this appeal as the compensation awarded by the Tribunal being inadequate.
Heard Sri. B. C. Venkatesh, learned counsel for Sri S. G. Pandit, learned counsel for the appellant and Sri M. R. Balakrishna, learned counsel for respondent No.1 and Sri H. C. Lingaraj, learned counsel for respondent No.2.
The factum of the accident occurred and the injuries sustained by the claimant are not in dispute. The claimant had sustained grievous injuries, underwent four surgeries and there was amputation of 1st, 2nd and 3rd toe with partial amputation with loss of tissue of right foot. Implants were fixed and skin grafting was done.
The doctor who was examined as P.W.3 had assessed the permanent disability at 66% to the particular limb and 22% to the whole body. However, the Tribunal rejected the said assessment made by the doctor and determined the permanent disability to the whole body at 10% which appears to be unsustainable. No evidence was let in by the respondents to discard the evidence of the doctor-P.W.3 nor any positive material was enunciated in the cross-examination of P.W.3. In such facts situation, the Tribunal determining the permanent disability at 10% to the whole body much against the evidence on record cannot be counternanced and the same is not fit to be sustained. This Court is of the considered opinion that 22% disability to the whole body would be appropriate based on the medical evidence.
As regards the monthly income, it is very well established that the claimant was working as a Bar Bender. Though, the claimant contended that he was working as a Bar Bender and earning Rs.250/- per day, the Tribunal determined the income of the claimant notionally at Rs.4,000/- per month, which appears to be on the lower side. Considering the date of the accident, 7-4-2009 and the age of the victim, this Court is of the considered opinion that it would be just and reasonable to re-determine the monthly income at Rs.5,000/-. Applying the same with the multiplier of 18 and the permanent physical disability at 22%, the loss of future income works out to Rs.2,37,600/- (Rs.5,000/- x 12 x 18 x 22%).
In view of re-determination of the monthly income of the claimant at Rs.5,000/-, the claimant shall be entitled to a compensation of Rs.15,000/- towards loss of income during treatment period as against Rs.12,000/- awarded by the Tribunal.
A sum of Rs.20,000/- would be a reasonable compensation towards incidental charges as against Rs.18,000/- awarded by the Tribunal. In view of the implants being fixed to the metatarsal portion, which requires future surgery to remove the same, this Court is of the view that it would be appropriate to award a sum of Rs.15,000/- towards future medical expenses.
Thus, the compensation awarded by the Tribunal is modified as under:
Sl. No.
Particulars
Amount [in Rs.]
1.
Pain and suffering
40,000/-
2.
Loss of happiness and future amenities
40,000/-
3.
Loss of income during the treatment period
15,000/-
4.
Incidental charges
20,000/-
5.
Medical expenses
1,15,000/-
6.
Loss of future income
2,37,600/-
7.
Future medical expenses
15,000/-
Total
4,82,600/-
The compensation awarded by the Tribunal is modified to Rs.4,82,600/- as against Rs.3,11,400/- awarded by the Tribunal. The appellant/claimant shall be entitled to a total compensation of Rs.4,82,600/- with interest at 6% per annum from the date of petition till the date of realization.
The appeal stands allowed to the extent indicated above.