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Judgment
K.N. Keshavanarayana, J.—These appeals, one by the insurer, and the other by the claimant in MVC No. 100/2012 on the file of the Senior Civil Judge and Member MACT-IX at Basavana Bagewadi are directed against the judgment and award dated 18.01.2013. The claimant is dissatisfied with the quantum of compensation awarded by the Tribunal while the insurer is seeking reduction of compensation awarded. I have heard the learned counsel on both sides. Perused the judgment under appeal.
There is no dispute that in the unfortunate accident that occurred at about 7.00 p.m. on 14.04.2012, the claimant sustained grievous injuries to his left leg which resulted in the amputation of his left leg above knee at the level of mid thigh. The claimant sought compensation of Rs. 26,94,000/- under various heads.
The Tribunal on assessment of oral and documentary evidence placed on record by the parties, held that having regard to the amputation of left leg suffered by the claimant, he has incurred functional disability of 70%. Though the claimant contended that he is Tailor by profession, the Tribunal having regard to the fact that the claimant has not produced any documentary evidence to substantiate the said contention, reckoned monthly income of the claimant at Rs. 4,000/- and on that basis by applying the multiplier 18 since the claimant is aged 28 years, quantified the loss of future income due to disability at Rs. 6,04,800/-, and to this Tribunal added Rs. 30,000/- towards loss of amenities in life, happiness and frustration; Rs. 20,000/- towards conveyance, attendant charges, food and nourishment; Rs. 1,00,000/- towards pain and suffering; Rs. 30,000/- towards artificial limb and Rs. 77,100/- towards medical expenses. Thus, in all, the Tribunal awarded a sum of Rs. 8,61,900/-.
Learned counsel for the claimant vehemently-contended that even if the claimant has not placed any evidence to show that he was a Tailor by profession, monthly income reckoned by the Tribunal at Rs. 4,000/-is highly on the lower side regard being had to the cost of living and the inflationary trends during the year 2012. Learned counsel placing reliance on the decision of the Division Bench of this Court in The Divisional Manager, National Insurance Company Limited v. Bayamma in MFA No. 32402/2013 disposed of on 25.11.2013 contended that the monthly income of the claimant ought to have been reckoned at Rs. 7,500/- per month. He also contended that the Tribunal ought to have taken the functional disability suffered by the claimant at 100% having regard to his avocation. It is also his contention that the compensation awarded under the other heads also is inadequate and calls for enhancement.
On the other hand, learned counsel for the insurer contended that the Tribunal has committed an error in assessing the functional disability at 70% and reckoning monthly income at Rs. 4,000/- in the absence of any legal and acceptable evidence as to the income of the claimant.
Having heard the learned counsel on both sides and on perusal of the judgment under appeal, I find considerable force in the contention of the learned counsel for the claimant.
As noticed supra, the claimant has suffered amputation of left leg above knee. According to Schedule-I attached to Employees'' Compensation Act, the percentage of loss of earning capacity in respect of amputation below hip with stump exceeding (12.70 cms) in length measured from tip of great trochanter but not beyond middle thigh is 70% while amputation below middle thigh to below knee is 60%. Having regard to the fact that the claimant has suffered amputation of left leg above the knee at the level of mid thigh, in my considered opinion, the Tribunal is justified in assessing the functional disability suffered by the claimant at 70%.
As noticed supra, the claimant has not placed any evidence to show that he is Tailor by profession. Though the claimant has suffered amputation of left leg above knee, it cannot be a ground to hold that he has suffered 100% functional disability. It is not as if that the claimant is not in a position to do any work by sitting. In fact, the Tribunal has awarded a sum of Rs. 30,000/- towards artificial limb. In other words, he could do some work by wearing an artificial limb. Therefore, in my considered opinion, the Tribunal has not committed any error in assessing the functional disability at 70%. Absolutely there is no justifiable ground to assess the functional disability at 100%.
No doubt, the claimant has not produced any evidence to show that he is a Tailor by profession. Nevertheless, having regard to the fact that accident occurred in the month of April 2012 and regard being had to the cost of living and the inflationary trends, in my considered opinion, monthly income reckoned by the Tribunal at Rs. 4,000/- is on the lower side. The claimant is an young boy, aged about 28 years. No doubt this Court in the unreported decision mentioned supra while considering the appeal arising out of the award passed by the Tribunal, in which the Tribunal had reckoned daily income of the deceased therein, a Mason at Rs. 400/-, has reckoned daily income of the deceased at Rs. 250/-. The accident in that case occurred on 12.06.2012. In the said decision, the Division Bench of this Court has observed that it is appropriate to reckon Rs. 250/- as the daily income of the deceased, aged 40 years on the date of the accident and death, having regard to the inflationary trends in the cost of living during the year 2012, whence it is common knowledge that an ordinary coolie in the State of Karnataka would earn in the least Rs. 250/- per day. It is also to be borne in mind that in that case there were 7 dependents to the deceased and the deceased was required to feed 7 souls apart from himself. Therefore, in the facts of that case, the Division Bench has reckoned daily income at Rs. 250/-. However, in the case on hand, the claimant is an unmarried person aged about 28 years. Having regard to the facts and circumstances of the case and the nature of vocation pursued by the claimant, in my opinion, interest of justice would be served by reckoning the income of the claimant at Rs. 200/- per day and the monthly income at Rs. 6,000/-. On that basis, future loss of earning on account of functional disability by applying multiplier of 18, works out to Rs. 9.07,200/- (6000 x 12 x 12 x 70/100) as against Rs. 6,04,800/- awarded by the Tribunal.
As noticed supra, the Tribunal has awarded Rs. 30,000/- towards loss of amenities in life, happiness and frustration. Having regard to the fact that the claimant has suffered amputation of left leg above knee, he has to spend rest of his life without left leg thereby he has lost utility of left leg and this has greatly affected his future enjoyment of life. This has certainly diminished his prospects of marriage. This would attach a social stigma, which has to endure during the rest of his life. Therefore, in my considered opinion, award of Rs. 30,000/- towards loss of amenities in life, happiness and frustration is grossly inadequate. Having regard to the facts and circumstances of the case, the appropriate award under the head, loss of amenities in life, happiness, loss of marriage prospects and frustration would be atleast Rs. 1,00,000/-. Therefore, claimant is entitled for Rs. 1,00,000/- under this head as against Rs. 30,000/- awarded by the Tribunal.
The Tribunal has awarded Rs. 30,000/- towards artificial limb. It is needless to point out that the claimant is required to keep changing the artificial limb from time to time on account of natural wear and tear. Therefore, in my considered opinion, claimant is entitled for another Rs. 20,000/- under this head. The award under the other heads are being just and proper does not call for interference.
Thus claimant is entitled for enhanced compensation of Rs. 3,92,400/- over and above the compensation awarded by the Tribunal.
In view of the above, the appeal filed by the insurer has no merit while the appeal filed by the claimant is required to be allowed in part.
Accordingly, MFA No. 30668/2013 is allowed in part and compensation awarded by the Tribunal is enhanced by Rs. 3,92,400/-. The enhanced compensation shall carry interest at 6% per annum from the date of petition till the date of payment. The respondent-insurer is directed to deposit the enhanced compensation with interest within six weeks from today. Out of the enhanced compensation, 80% of the enhanced compensation with proportionate interest is ordered to be kept in fixed deposit in any Nationalized Bank in the name of the claimant with liberty to draw periodical interest and the balance is ordered to be disbursed to him. MFA No. 30637/2013 filed by the insurer is dismissed.
Office to draw the award accordingly.
The statutory amount in deposit before this Court is ordered to be transmitted to the Tribunal.
Consequently, I.A. No. 1/2013 in MFA No. 30637/2013 for stay does not survive for consideration and accordingly, it is dismissed.