Ravindran Pillai vs Sreejith and United India Insurance Company Ltd.

Thomas P. Joseph, J.—Second respondent appears through counsel. Notice to the first respondent is dispensed with in view of the decision I proposed to be taken in the appeal. This appeal arises from the award passed by the Motor Accidents Claims Tribunal, Ernakulam (for short ''the Tribunal'') in O.P. (MV) No. 3071 of 2006 awarding a lump sum of Rs. 35,000/- as compensation to the appellant for the injuries he suffered in a motor accident on 24.05.2006. The motor cycle which the first respondent owned and was riding hit the appellant. The Tribunal found that the accident occurred due to the negligence of the first respondent.

Learned counsel for the appellant contends that the compensation awarded by the Tribunal is low. Learned counsel has produced three photographs of the left foot of the appellant to show the nature of injury he suffered and the present condition of the left foot. The said documents are received in evidence and marked as Exts. A8 series.

The appellant who was aged 72 years at the relevant time was running a cement shop. His monthly income is stated to be Rs. 5,000/-. There is no evidence to show that on account of the injury the appellant suffered the shop was closed and he lost business. But the appellant could have personally managed the shop during the relevant time and in his absence somebody else had to manage it. Bearing that in mind loss to the appellant is fixed as Rs. 2500/- per month.

It is seen that the learned Tribunal simply referred to the medical bill and awarded a lump sum Rs. 35,000/- as compensation which is not appreciated. Having regard to the evidence on record I do not propose to remand the case since the appellant is aged about 72 years and he may have to wait for another few years to get an award and realise its fruits. Paragraph 7 of the award refers to the injuries of the appellant suffered. It involves comminuted fracture of phalanx of the left big toe. He underwent inpatient treatment in a private hospital for 19 days. Ext. A7 series are the medical bills for treatment to the tune of Rs. 16,611/- and deducting Rs. 1,221/- since that bill was issued by a private druggist unsupported by medical prescription the Tribunal found that the treatment expenses is Rs. 15,390/-.

It is seen from Ext. A8 series that distal phalanx of the left toe of the appellant was amputated. Learned counsel for the appellant submits that in Ext. A5 discharge card also, the same is mentioned. But, the learned Tribunal has not adverted to that.

In view of the said injury and the fact that the appellant had to undergo inpatient treatment for 19 days followed by outpatient treatment it is likely that he was not able to work for a period of four months. He suffered loss of earning to the tune of Rs. 10,000/- which is allowed.

To attend the hospital, he had to incur transportation charges. Rs. 1,000/- is awarded on that count. Rs. 500/- is awarded for damage to clothing. Since the appellant was inpatient for 19 days, Rs. 2,000/- is awarded towards by-stander''s expenses.

Ext. A7 series are the medical bills. It is possible that the appellant was not able to produce all the medical bills. Hence, a further sum of Rs. 3,000/- is allowed on that count. It appears that skin of the left foot is affected which will affect sweating. The appellant may have to apply ointment to keep the left foot moistures. Considering these aspects, Rs. 3,000/- is allowed for future treatment.

I have referred to the nature of the injuries the appellant suffered and amputation of the distal phalanx. Appellant must have undergone severe pain and suffering. Hence Rs. 15,000/- is awarded on that count.

There is no certificate proving disability of the appellant. As per the Schedule to the Workmen Compensation Act, disability due to amputation of distal phalanx of the toe is 3%. But, that cannot as such to be applied to the facts of this case since the appellant is not a ''workman'' and is aged 72 years. Though not occupationally disability would affect the appellant functionally. Having regard to the above circumstances, percentage of disability is fixed as 2%. The multiplier to be adopted is 5 since the appellant is aged 72 years. Compensation payable for disability comes to Rs. 3,000/-(2500x12x5x2/100), that is allowed.

Compensation for loss of earning power is payable. Having regard to the age of the appellant and the nature of injuries and the extend of disability, compensation payable is Rs. 7,000/-.

The injury has affected the appellant''s enjoyment of the amenities of life. Though he is aged 72 years, nature of injuries as revealed by the evidence on record has to be considered. Hence, Rs. 10,000/- is awarded as compensation for loss of enjoyment and amenities of life. It is seen from Ext. A8 series that the left foot of the appellant has a repulsive appearance. Compensation is payable for disfiguration which is fixed as Rs. 7,000/-. Thus compensation payable to the appellant comes to Rs. 61,500/-. Less Rs. 35,000/- already awarded, additional compensation payable to the appellant comes to Rs. 26,500/-. That amount will carry interest at the rate of 7.5% per annum as awarded by the Tribunal.

Resultantly, this appeal is allowed in part as under:

(i) In modification of the award dated 02.11.2009 in O.P. (M.V.). No. 3071 of 2006 of the Motor Accident Claims Tribunal, Ernakulam the appellant is allowed to recover a further sum of Rs. .26,500/- (Rupees twenty six thousand five hundred only) with interest @7.5% per annum from the date of application till payment from the respondents.

(ii) The second respondent is directed to deposit the said amount in the Tribunal within two (2) months from this day.

(iii) Parties shall suffer their respective cost in this appeal.

All pending interlocutory applications will stand dismissed.