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Judgment
The Hon''ble Mr. Justice Ashok B. Hirchigeri
This appeal is directed against the judgment and award, dated 24.09.2010 passed by the Motor Accident Claims Tribunal, Dakshina Kannada, Mangalore, in MVC No. 1113/2007.
On account of the injuries suffered by the Appellant/claimant in the road traffic accident on 04.04.2007, the Tribunal granted compensation of 2,22,875/-, the break-up of which is as follows:
(i)
Towards pain and sufferings:
Rs. 30,000/-
(ii)
Towards medical expenses:
Rs. 1,27,275/-
(iii)
Towards loss of future earnings:
Rs. 30,600/-
(iv)
Towards loss of earnings during laid up period:
Rs. 10,000/-
(v)
Towards food, special diet, conveyance, etc.,:
Rs. 15,000/ -
(vi)
Towards loss of amenities:
Rs. 10,000/-
Total:
Rs. 2,22,875/-
Sri Sarat Chandra Bijai, the Learned Counsel for the claimant/Appellant submits that the Tribunal has erred by taking the income of the Appellant as 3,000/- a month. He submits that the Appellant has produced a letter (Ex. P14) issued by the Local Body to the effect that it was leased to the Appellant. He further submits that the letter further states that it was leased for the purpose of tailoring work and that the shop was closed from April, 2007.
The next submission of Sri Sarat Chandra Bijai is that the Tribunal has erred by taking the whole body disability as 5%. According to him, as per the doctor''s assessment, the Appellant is incapable of resuming his tailoring work and that therefore his occupational disability ought to have been taken at atleast 15%, if not 100%. He also takes exception to the Tribunal not awarding any amounts towards the attendant charges. He also had a grievance over the Tribunal deducting a sum of 7,500/- from the amounts towards the medical expenses, even when the doctor''s bill is produced. The Tribunal has effected the deduction in question only because the doctor, to whom a sum of 7,500/- is paid, is not examined.
The learned Counsel also complains of inadequacy of the amounts awarded under the other heads.
The wound certificate at Ex. P4 discloses that the Appellant has sustained as many as 4 grievous injuries. The medical certificate at Ex. P10 enumerates the injuries as follows:
Type II Compound "B.B. (Rt.) Leg U/3-M/3 Junction
+ "Base of 1st MC (Lt) Hand
+ "Posterior Acetabular column (Rt.) with head injury.
Patient presented to the causality fall an alleged RTA on the DOA
C/O Pain/Bleeding wound over (Rt.) leg, pain/swelling (It.) hand with associated altered. sensorial
O/E: Young adult male, moderately built and nourished
GPE: NAD Vitals: Stable
GCS: E2 VI M4, pupils: ERL
Mild (Rt.) hemiparesis
(Rt.) leg: open wound of 3 cms, bone exposed interiorly gross abnormal mobility (+)
No DNVD
(Lt.) hand: Tenderness over base of I digit.
Considering these injuries, the awarding of Rs. 30,000/- towards the head pain and suffering is grossly insufficient. For suffering 3-4 grievous injuries apart from a number of simple injuries, the Appellant is entitled to a sum of 60,000/- under this head.
The medical bills produced show that the Appellant has incurred an expenditure of 1,34,775.30. When the bills themselves are produced, a sum of 7,500/- paid to a doctor cannot be disallowed on the ground that the doctor has not been examined. Based on the medical bills, the Appellant is entitled to a sum of 34,775.30.
It has also come on record that the illiazarov fixator was removed from the Appellant''s right tibia after two years of the accident. Not ruling out the requirement of the future medical expenses. I award a sum of 10,000/- towards the said head.
It is not in dispute that the Appellant was an inpatient for 91 days. It is safe to presume that he had engaged the services of an attender to take care of him when he was in the hospital. At the rate of 100/- per day, I award a sum of 9,100/- towards the attendant charges.
Based on Ex. P14, nothing can be made out as to what was the income that the Appellant used to generate by doing his tailoring work. In the absence of any proof, the Tribunal has taken the Appellant''s income to be 3,000/- a month which in my considered view is just. However, the Tribunal has taken the whole body disability at 5% based on the assessment of the P.W. 2 (doctor) of the limb disability of 15%. The doctor (P.W. 2) has also deposed that the Appellant is not able to use the force through his right limb to operate the tailoring machine. This opinion of the expert shows that the Appellant is not in a position to resume his earlier avocation. Considering this aspect of the occupational disability, in the context of the injury caused to the right leg of the Appellant and the nature of his erstwhile work (tailoring), the ends of justice require that the normal practice of taking the whole body disability percentage as one-third of the limb disability be relaxed and that the whole body disability to be taken as 15%. The amounts payable towards the loss of future earnings would be reworked as follows:
Rs. 3,000 x 12 x 17 x 15/100 = 91,800/-.
The amounts of 10,000/- and 15,000/- awarded by the Tribunal towards loss of earnings during the laid up period and towards the special diet, conveyance, etc., are retained as they are found satisfactory.
The Tribunal has awarded a sum of 10,000/- towards the loss of amenities. In view of the multiple injuries of grievous nature, the doctor (P.W. 2) has stated that the Appellant is not able to walk fast, run, climb on upstairs, bend his right leg, etc., The doctor has advised him to walk with the help of clutches. As the Appellant has to put up with so many inconveniences and tribulations for the rest of his life. I deem it necessary to increase the amounts awarded towards loss of amenities from 10,000 to 15,000/-. Now the modified award stands as follows:
(i)
Towards pain and sufferings:
Rs. 60,000/-
(ii)
Towards medical expenses:
Rs. 1,34,775.30
(iii)
Towards Attendant charges:
Rs. 9,100/-
(iv)
Towards future medical expenses:
Rs. 10,000/ -
(v)
Towards loss of future earnings:
Rs. 91,800/-
(iv)
Towards loss of earnings during laid up period:
Rs. 10,000/-
(v)
Towards food, special diet, conveyance, etc.,:
Rs. 15,000/-
(vi)
Towards loss of amenities:
Rs. 15,000 / -
Total:
Rs. 3,45,675.30
The amounts are rounded off to 3.46,000/-.
It is made clear that the amounts enhanced herein shall carry interest at the rate of 6% p.a. from the date of institution of the claim petition till the date of payment.
The appeal is accordingly allowed in part. No order as to costs.
The office is directed to draw up the modified award in terms of this judgment.