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Judgment
Aravind Kumar, J.—Though this matter is listed for admission, by consent of learned Counsel for the parties, the matter is taken up for final disposal and since the matter is of the year 2007 and also that the LCR having been secured.
The appellant not being satisfied with the judgment and award passed in MVC No. 4158/2006 dated 4.4.2007 by MACT, Bangalore, is in appeal seeking enhancement of compensation.
The facts in nut-shell are as follows:
On 7.6.2006 at about 2 p.m., when the claimant was standing on Hoskote-Malur Road, near Devanagundi Cross, a lorry bearing registration No. KA-07-4291 driven in a rash and negligent manner dashed against the claimant due to which he is said to have sustained grievous injuries. On account of the injuries sustained in the said accident a claim petition in MVC No. 4158/2006 u/s 166 of IMV Act, 1988, came to be filed seeking compensation of Rs. 5,00,000/-. On service of notice, nd respondent insurance company appeared and contested the matter by filing written statement denying averments made in the claim petition. The 1st respondent being owner of the offending vehicle had remained ex-parte.
On the basis of the pleadings advanced by the parties, Tribunal framed following issues for its consideration:
Whether the petitioner proves that he sustained injury in the accident arising out of the use of Motor vehicle No. KA-07-4291 lorry on 7.6.2006 at about 2.00 p.m.?
Whether the petitioner is entitled to get the compensation? If yes, how much and from whom?
What order or award?
The claimant in support of his claim got examined himself as P.W. 1 and also examined the doctor who treated him as P.W.2. He got marked 9 documents viz., Exs. P. 1 to P.9. The respondent did not lead any evidence nor got any documents marked. On considering the pleadings and evidence on record, the tribunal allowed the claim petition in part and awarded a total compensation of Rs. 1,42,800/''-with interest at 6% p.a. from the date of claim petition till the date of deposit under the following heads:
Pain and suffering Rs. 45,000-00 2. Loss of future amenities Rs. 15,000-00 3. Medicine & Hospital expenses Rs. 5,000-00 4. Conveyance, nourished food and incidental expenses Rs. 10,000-00 5. Loss of earning during the Period of treatment Rs. 10,000-00 6. Future loss of earning Rs. 57,600-00 ________________ Grand Total Rs. 1,42,600-00 ________________ 6. It is this judgment and award, which is now assailed in present appeal by the claimant seeking for enhancement of compensation.
I have heard Sri. Shripad V. Shastri, learned Counsel appearing for the appellant and Sri. Nagesh, learned Counsel appearing on behalf of M/s. Lex Plexus, for 2nd respondent. Notice to 1st respondent has been dispensed with by this Court by order dated 9.2.2010.
Sri. Shripad V. Shastri, learned Counsel would contend that tribunal has erred in taking disability of the claimant to the whole body at 10% only when the doctor who has been examined as P.W.2 has categorically stated that disability to left lower limb was to the extent of 46% and 23% disability to the whole body. He would contend that income of the claimant is to be taken at 3,500/- p.m. as against the income taken by the Tribunal at Rs. 3,000/- p.m. and accordingly, compensation requires to be recomputed. He also submits that compensation awarded under other headings namely loss of amenities, loss of income during the laid up period and also future medical expenses is on lower side and tribunal has considered the materials placed by claimant and accordingly, seeks for enhancement of compensation on those headings also.
Per contra, Sri. Nagesh, learned Counsel appearing for respondent No. 2 would contend that Tribunal has considered the evidence of the doctor-P.W.2 and in view of the wound certificate produced at Ex. P.3, arrived disability at 10% to the whole body and accordingly supports the order of the Tribunal. He would also submit that award of the Tribunal is just and reasonable under all other headings and same does not call for enhancement. Accordingly, he seeks for dismissal of the appeal.
Having heard learned Counsel for the parties, the following points would arise for my consideration:
Whether the compensation awarded by the Tribunal in MVC No. 4158/2006 is just and reasonable or it requires to be modified/enhanced and if so, to what extent?
What order?
Re. Point No. 1:
The doctor who has treated the claimant has been examined as P.W.2. In his evidence, doctor has stated that he has personally treated and examined the claimant on 7.6.2006, the date on which the claimant was admitted to hospital and found the following injuries:
Degloving injury of left foot with avulsion of sole exposing the underlying fractures with bleeding, auto amputation of distel phalanx of left 2nd toe with avulsion of pulp of left 3rd and 4th toes.
X-ray revealed:
- comminuted and displaced fracture of 2nd M.T. Bone
- Dislocation of 1st Tarso-Meta-Tarsal Joint
- Dislocation of IP joint of 2nd Toe
- Absence of Distal Phalanx of great toe
- Soft tissue swelling with irregularity of distal of left, foot
- Impression crush injury left foot.
The doctor has also stated that claimant was taking follow up treatment and he was examined on 1.3.2007 and found the following:
a) Patient cannot walk on bear foot
b) Deformity of left foot
c) Amputation of Gr. 2nd, 3rd and 4th toes
d) Puckered scars dorsum of left foot and sole
e) Limitation of left ankle movements by 40%
f) Limitation to left knee movements by 30%
g) Muscle power around and over left knee is Gr. IV against Gr. V
h) Muscle power around left ankle is Gr. IV against Gr. V
i) Irregular scar on entire aspect of left thigh.
In conclusion, he has opined that there is old Mal-united fracture shaft of 2nd metatarsal bone with absence of desial phalanx of all the toes and concluded disability to the left lower limb at 46% and 23% to the whole body. The Tribunal while considering this evidence of the doctor has neither accepted nor discarded the same. The reasons are not forthcoming either for accepting or discarding this evidence. In view of the same, the evidence of the doctor is required to be reconsidered and re-appreciated by this Court with reference to the wound certificate namely Ex.P.3 and also his photograph produced at Ex. P.6.
A perusal of photograph-Ex.P.6 would depict that all the toes in left foot are conspicuously absent by virtue of amputation. The doctor has opined that due to the said disability, he cannot do any hard work manually. In view of this evidence, this Court is of the considered view that disability to the whole body, which requires to be taken into consideration, would be 18% as against 10% arrived at by the Tribunal. Accordingly, it is so taken. Though Sri. Nagesh would contend that disability is to be taken at 15%, this Court is not inclined to accept the said submission inasmuch as upper limb disability as assessed by the Doctor is at 46% and 1/3rd of the same would be 15.33%. The nature of avocation of the claimant is coolie and as such, he would be unable to walk without special footwear as rightly opined by the doctor but that does not come in the way of discharging his duties. In view of this disability, and as stated above, disability to the whole body is taken at 18%.
In so far as income of the claimant, the Tribunal has arrived at Rs. 3,000/- p.m. Though the learned Counsel for the appellant contended that income is to be taken at Rs. 3,500/- p.m., this Court, does not find any reason to deviate from what has been arrived at by the tribunal. Accordingly, it is taken at Rs. 3,000/- p.m. and the compensation is being recomputed. When income is taken at Rs. 3,000/- p.m. and disability at 18%, the loss of income per month would be Rs. 540/- i.e., Rs. 6,480/- p.a. The age of the claimant as on the date of accident is 28 years and the appropriate multiplier that is required to be taken is 17 and the total compensation of Rs. 1,10,160/- would be loss of future income to the claimant. The Tribunal has awarded Rs. 57,600/- under said heading. Hence after deducting Rs. 57,600/- from Rs. 1,10,160/-, loss of future income would be Rs. 52,560/- and accordingly, it is so awarded.
On account of the injury sustained, tribunal has awarded Rs. 15,000/- towards loos of amenities in life, which is on the lower side and considering the nature of injury sustained and the loss of amenities that the claimant may loose in life is required to be suitably awarded by awarding just and reasonable compensation. This Court is of the considered opinion that if additional compensation of Rs. 10,000/- is awarded, it would meet the ends of justice. Accordingly, Rs. 10,000/- awarded under the heading loss of amenities in life.
This Court has taken income of the claimant at Rs. 3,000/- p.m. Admittedly, claimant as per his evidence was laid up for a period of 6 months and thus, there is loss of income for the said period. Hence, the compensation of Rs. 18,000/- is awarded under the said heading (Rs. 3,000/- 6 months). As the Tribunal has awarded Rs. 10,000/-, there is a short fall of Rs. 8,000/- which requires to be enhanced by way of awarding additional compensation and it is accordingly awarded.
Thus, total compensation that is required to be payable to the claimant would be Rs. 70,560/- in all. In view of the above, point No. 1 formulated herein above is answered in favour of the claimant and judgment and award passed by the tribunal is accordingly modified.
Re. Point No. 2:
In view of the above discussion, following order is passed:
a) The appeal is allowed in part.
b) Compensation awarded by the Tribunal is enhanced by awarding additional compensation of Rs. 70,560/- which shall carry interest @ 6% p.a. from the date of petition till date of payment/deposit.
c) Out of the said compensation, 50% shall be kept in Fixed Deposit in a nationalised Bank of appellant''s choice for a period of 5 years and appellant shall be entitled to draw periodical interest. The balance 50% together with proportionate interest shall be released in favour of claimant.
d) No order as to costs.