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Judgment
S.N. Satyanarayana
The claimant in MVC. No. 5178/2005 has come up in this appeal impugning the judgment and award dated 9.10.2007 passed therein.
Brief facts leading to this appeal are:
The appellant, claimant before tribunal met with an accident on 21.5.2005 at about 9.45 pm., while he was travelling in an Autorickshaw bearing No. KA-03/5317 due to rash and negligent driving by its driver. In the said accident, he suffered injuries resulting in amputation of his left forearm and other related injuries In that behalf, he was hospitalised and underwent treatment for a period of 13 days and thereafter, filed the claim petition seeking compensation for the said injuries.
The accident is not in dispute. The ownership of Autorickshaw by 1st respondent and coverage of insurance by the 2nd respondent is also not in dispute. It is further not in dispute that in the said accident claimant has suffered amputation of his left forearm. The tribunal on appreciation of pleadings, oral and documentary evidence available on record proceeded to allow claim petition awarding compensation to claimant in a sum of Rs. 2,76,600/- . While doing so, for the purpose of computation of compensation payable under the head loss of future earning capacity the income of claimant was taken at Rs. 3,000/- pm" and loss of earning capacity was taken at 20% as against the opinion of Doctor which was stated at 25% and awarded compensation at Rs. 1,29,600/- under the head loss of future earning capacity.
The claimant being aggrieved by the same has come up in this appeal seeking enhancement of compensation for loss of future earning capacity urging that though permanent disability to whole body is at 25% the functional disability suffered by claimant is on much higher side due to amputation of left forearm. Therefore, compensation is required to be calculated for loss of future earning taking the percentage higher than the percentage which is stated to whole body because for any manual job both hands are essential. With amputation of left forearm he will be rendered totally immobile to do any work. It is also his case that since accident is of the year 2005, the income of claimant who was aged about 22 years at Rs. 3,000/- pm., is on lower side and the same should have been taken at least at Rs. 4,500/- as against the pleading of Rs. 5,000/- pm., in the claim petition.
Heard the counsel for appellant and as well as contesting respondent. Perused the oral and documentary evidence available on record in the light of the finding of tribunal in judgment impugned. On going through the same, it is seen that though claimant has stated in the claim petition that he was running a STD booth, there is nothing on record to show that he was doing the said job. Assuming that he was running the STD booth, the amputation of left forearm would not definitely hamper managing the same. In any event, if he were to do any other job with amputation of left forearm, he would have faced serious disability, cannot be disputed. It is seen that so far as claim petitions where claimants have suffered injuries in the accidents arising during the period 2005-2006, where occupation and income of injured is not established with acceptable evidence, the Courts have taken the notional income anywhere between Rs. 120 to 130 per day. If that is taken into consideration, the income of claimant in the instant case could be taken safely at Rs. 3,500/- per month. If the income of claimant is taken at Rs. 3,500/- pm., and the evidence of PW.2 stating that claimant has suffered 25% whole body disability is accepted and the same is taken as functional disability, claimant would be entitled to compensation under the head loss of future earning as under:-
3500x12x18x25/100=1,89,000/- as against Rs. 1,29,600/- awarded by the tribunal.
With the revised notional salary the compensation payable towards loss of income during laid up period will also get altered. In this behalf, claimant would be entitled to a sum of Rs. 14,000/- as against Rs. 12,000/- awarded by Tribunal.
In the result, appeal filed is allowed in part. The compensation awarded is revised as above. Accordingly, claimant would be entitled to Rs. 3,38,000/- as against Rs. 2,76,600/ awarded by the tribunal. The claimant would be entitled to receive the revised compensation with interest at 6% from the date of petition till date of realisation of entire amount. The 2nd respondent insurance company is directed to deposit the enhanced compensation within eight weeks from the date of receipt of certified copy in this proceedings. On such deposit, a sum of Rs. 50,000/- is ordered to be deposited in any nationalised bank for a period of three years with a right to claimant to receive interest periodically and the balance amount with interest shall be released in favour of claimant immediately after the deposit of same by the insurance company.