Farook vs Vasanthakumar

T.R. Ramachandran Nair, J.—The claimant before the Motor Accident Claims Tribunal, Punalur, in O.P(MV) No. 1323 of 2000 is the appellant herein. As against the claim of Rs. 4 lakhs, the Tribunal below has awarded a total amount of Rs. 1,50,242/- as compensation with interest @ 7.5% from the date of petition.

The accident occurred on 26.01.2000 while the appellant was working as a Cleaner in Lorry No. KL/1/8080. The case of the appellant is that the Lorry driver stopped it at Aaryankavu for having tea, in the Kollam-Chenkotta National Highway and after taking tea while the appellant was entering into the lorry, the 2nd respondent driver took the lorry abruptly without caring him. As a result of that, the appellant was thrown out of the Lorry and the back wheel of the Lorry ran over to his left foot and he sustained severe injuries.

He was initially taken to the Puliyara Hospital, from where he was taken to the Government Hospital, Punalur and then to Medical College Hospital, Thiruvananthapuram. He was admitted therein for treatment as an inpatient for different spells. The first spell was from 27.01.2000 to 14.02.2000, then from 16.3.2000 to 23.3.2000, then from 28.3.2000 to 07.05.2000 and then from 23.09.2002 to 22.10.2002. In between he was admitted in the hospital on 16.08.02 and discharged on 20.08.02 and again admitted on 22.08.2002 and discharged on 21.09.02. Finally he was admitted on 23.09.2002 and underwent treatment upto 22.10.2002.

According to the claimant, he has sustained very serious injuries and has suffered 30% disability going by Ext. A16 certificate issued by the Medical Board.

We have heard learned counsel for the appellant Sri Anchal C. Vijayan as well as Sri. S. Mammu, the learned Standing Counsel for the 3rd respondent Insurance Company.

The learned counsel for the appellant Sri Vijayan mainly contended that it is a case where the Tribunal has gone wrong in not accepting the monthly income of the petitioner as Rs. 4,500/- even though there was no dispute about the same. It is submitted that even after the award was passed by the Tribunal the treatment of the petitioner has been continuing and on that account he has already spent a huge amount. To show the same, he has produced certain documents marked as Annexures A to N in I.A. No. 2791 of 2014. It is submitted that Annexure-N which is a certificate issued from the Government General Hospital, Thiruvananthapuram, will show that the petitioner is suffering from non healing ulcer and he has underwent skin grafting also. It is therefore submitted that even now the petitioner is continuing the treatment. Therefore this Court may have to reckon the same to assess damages for the continued treatment of the petitioner.

The learned counsel further submitted that though amount was awarded towards loss of earning, pain and suffering and other heads by the Tribunal including permanent disability, the same is very meagre, considering the ground realities. It is submitted that going by the decision of the Supreme Court in Sanjay Kumar Vs. Ashok Kumar and Another, and Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, , the reasonable increase in wages even for a worker in an unorganized sector will have to be reckoned by the court and compensation will have to be fixed accordingly. It is also submitted that a reasonable amount ought to have been granted towards the future medical expenses in a case like this.

The learned counsel for the Insurance Company submitted that the compensation granted is adequate and as far as the monthly income of the petitioner is concerned, there is no documentary evidence and therefore the Tribunal cannot be said to be wrong in fixing an amount of Rs. 2,500/- towards his monthly income. It is also submitted that even though Ext. A16 has been produced, the Doctor who had issued the same has not been examined and therefore reassessment made by the Tribunal as regards the percentage of disability is also correct. It is also submitted that as far as the future medical expenses are concerned, no further details have been produced before this Court.

We find from the documents that the petitioner sustained compound fracture medial malleolus (left), compound fracture lateral malleolus (left), compound fracture lower end of tibia (left), compound fracture calcaneum (left) and severe injury left foot. PW1 is the claimant himself who has stated about the details of the treatment. He was examined before the Tribunal on 20.01.2007. We have gone through the deposition of the applicant. According to him, the treatment to his left leg is being undertaken, even as on that day. It is seen from the judgment that the learned Tribunal had made a note about the non healing ulcer in his left ankle. The learned counsel for the petitioner relied upon Exts. A5, A6, A9 and A16 in support of the treatment undertaken by him in various hospitals as well as the additional documents produced before this Court. We find from Ext. A16 which is the certificate issued by the Medical Board that the appellant has sustained the following injuries in the accident.

Fracture medial mallelous left

Fracture lateral mallelous left

Fracture lower end of tibia left

Fracture Calcaneum left

Degloving injury left foot.

It is stated that "on examination, there is non healing ulcer over the anterior and medial aspect of left ankle. Raw area 6 X 4cm interiorly and 2 X 2cm medially in the left ankle."

The further details provided are the following:

"Left ankle-Movements nil, Subtalar and mid tarsals movements-nil,

Toes-Movements restriction present.

X-Ray taken on 17.04.07 shows malunited fracture medial mallelous and osteo arthritic changes ankle joint, subtalar and mid tarsal joint.

The degree of disability due to the above is assessed as 30%(Thirty)."

It is thus seen that they have assessed the disability as 30%.

The Tribunal has assessed the disability as 21% for non examination of any of the doctors who had issued Ext. A16 certificate. We find from that certificate that it is issued as required by the M.A.C.T. itself. In the light of Exts. A5, A6 and A9 and the treatment details given by the appellant, there is nothing to doubt the veracity of the details reported in Ext. A16. As far as the effect of the injuries on the body of the applicant is concerned, the same has been given with sufficient descriptions in Ext. A16 and we find no reason to discard the same. Therefore, there is no harm in taking the degree of disability as 30% instead of 21% as assessed by the Tribunal.

The appellant was only 28 years at the time of the accident. It is submitted by the learned counsel for the Insurance Company that the correct multiplier would be 17 instead of 18 as taken by the Tribunal and we adopt the same.

We are of the view that that compensation has to be reassessed considering various factors like seriousness of the injuries, treatment, disability sustained etc. It is also clear from his deposition that the treatment was continuing.

As far as the monthly income of the applicant is concerned, it is evident that he was working as a Cleaner at the time of the accident and what is claimed is Rs. 4,500 per mensem namely around Rs. 150/- per day. Of course the accident occurred in the year 2000. Going by the decision reported in Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, , the income of a person who is a worker in an unorganized sector can be reckoned as 4,500/- per month. In this case, the monthly income reckoned is 2,500/-. As the accident occurred in the year 2000, we are of the view that a sum of Rs. 4,500/- can be fixed as his monthly income. Apart from the same, when PW1 was cross examined no questions have been put to him, challenging the income claimed by the applicant and the nature of the avocation also. We find from Ext. A4 charge sheet that the Police have recorded his avocation as Cleaner in Lorry itself. In that view of the matter, we find no reason to reject the claim raised on these counts and we adopt Rs. 4,500/- as his monthly income. We therefore refix the compensation as follows:

We also hold that the claimant will be entitled for interest @ 9% per annum from the date of petition till realisation. The Tribunal below will collect the additional amount towards court fee if any before disbursing the amount deposited by the Insurance Company in tune with the above findings. We also direct the Insurance Company to deposit the amount within three months after deducting the amount already deposited and the appellant is allowed to withdraw the same. No costs.