A.V. Savad vs K.P. Surendran and Others

P.V. Asha, J.—The appellant is the claimant in O.P. (MV) No. 1104/2005, who sustained injuries in a motor vehicle accident which took place on 24.04.2005. This appeal is filed seeking enhancement in compensation.

While the appellant was riding a motor cycle, a bus hit against him and he sustained serious injuries. He was immediately taken to the hospital. On account of the injuries, he sustained disability to the extent of 11%, as certified in Ext.X1 Disability Certificate.

The learned counsel appearing for the appellant submits that the Tribunal reckoned the monthly income at a lower rate and the compensation awarded under various heads are inadequate.

Sri. Abdul Nazir, the learned counsel for the 3rd respondent - Insurance Company vehemently opposed the claim for enhancement, pointing out that the amount awarded under each of the heads is just and reasonable.

The Tribunal has noted the injuries sustained by the appellant as recorded in Exts. A8 to A11 as follows:

"1. Fracture right tibia and fibula comminuted.

Lacerated 10 x 6 cm on the lower 1/3rd of right leg

Lacerated wound of 2 x 1 cm over frontal area of skull.

Tenderness over the right shoulder."

It is seen that the appellant was admitted in Tejasvini Hospital, Mangalore on 24.04.2005 and was discharged on 16.06.2005. Thereafter, he was again admitted on 10.08.2005 on account of non-union of fracture tibia and was discharged on 28.08.2005. Again he was admitted on 8.10.2005 for treatment of comminuted Grade 11 open comminuted fracture. He was discharged on 20.10.2005. During this period he was treated for removal of bone cement, debridemant and illiac bone grafting. Thereafter, he was admitted on 21.11.2006 and was discharged on 25.11.2006. Thus, he underwent treatment as in-patient at Tejasvini Hospital, Mangalore for a period of 91 days on different spells during April 2005-November 2006. He incurred a sum of Rs. 1,60,000/- towards expenses for treatment, which the Tribunal awarded under the head ''Medical and miscellaneous expenses''.

The appellant''s disability was assessed from the Hospital as per Ext.A12 certificate, in which it was certified that he was having restriction 30% of right ankle, dersiflexion and restriction of 20% Right Ankle plantar flexion. It was certified that these are permanent disabilities. Disability was assessed as 20% in that certificate. In Ext.X1 certificate of the Medical Board of Medical College Hospital, Calicut, his disability was assessed as 11% permanent disability.

The appellant claimed that he was working as a salesman earning a monthly income of Rs. 3,500/-, with the support of Ext.A22 salary certificate. The Tribunal reckoned his monthly income at Rs. 3,000/- and awarded a sum of Rs. 67,320 under the head of permanent disability, reckoning the disability at 11% on the basis of Ext.X1 certificate. The Tribunal awarded a sum of Rs. 12,000/- towards ''loss of earnings'' for a period of four months.

The learned counsel for the appellant submitted that the period reckoned for loss of earning by the Tribunal is unjust since he was undergoing treatment as in Patient at Tejaswini Hospital for the period from 24.04.2005 to 25.11.2006.

We find that the appellant was undergoing treatment in the Hospital from the date of accident, i.e. from 24.04.2005 to 20.10.05 almost continuously as in-patient itself, on account of fractures sustained on his legs. Therefore, at least for a period of six months he was unable to undertake any work. The Tribunal has reckoned the notional income at Rs. 3,000/-. As per Ext.A22 certificate, he was getting a monthly income of Rs. 3,500/-. In the absence of any evidence to the contrary and as the amount claimed is only reasonable, we take the notional income of the appellant as Rs. 3,500/- and the period for partial loss of earnings as six months. Therefore, under the head ''Loss of earning'' we award a sum of Rs. 21,000/-.

The Tribunal has awarded a sum of Rs. 9,100/- towards Bystander expenses, at Rs. 100/- per day. We enhance the amount to Rs. 18,200/-, taking Rs. 200/- per day. Under the head of pain and suffering, an amount of Rs. 16,500/- was awarded. We find that the appellant had sustained very serious injures on his legs, skull and all over the body. He underwent various procedures of treatment for a period of more than two years, undertaking several visits in the hospital. Even thereafter, he had to continue on treatment. The ordeal of treatment he had to undergo, the shock, agony, discomforts and inconveniences he had to suffer at the age of 29 years, can be visualised. In these circumstances we enhance the award under this head to Rs. 75,000/-.

Towards transportation allowance an amount of Rs. 7,000/- was awarded. The appellant had to undertake several visits to Tejasvini Hospital at Mangalore, with his fractured legs, for which special transportation would be required, as he was unable to move about. Therefore, we enhance the amount to Rs. 10,000/-, since the amount claimed was only Rs. 10,000/-.

Towards permanent disability the Tribunal awarded Rs. 67350/-, (3000 x 12 x 17 x 11/100). As we have re-fixed his monthly income as Rs. 3500/-, we enhance it as Rs. 78,540/- (3500 x 12 x 17 x 11/100). The appellant had sustained very serious injuries on various parts of his body and he had to undergo treatment for more than 2 years in intermittent spells, on account of the grievous nature of the injuries sustained in the accident. He has incurred disabilities also, on his lower limb, on account of which he had to experience and will have to experience the discomforts and inconveniences a lot. He is not in a position to enjoy the normal amenities of life after the accident, which occurred at the age of 29 years. Therefore we award a sum of Rs. 35,000/- towards loss of amenities and enjoyment of life. The appellant was a bachelor aged 29 years. He incurred disfiguration of both his legs, which has definitely diminished his marriage prospects. Towards disfiguration, the Tribunal awarded Rs. 10,000/-. We enhance it as Rs. 20,000/-. Towards Loss of prospects of marriage, we award an amount of Rs. 35,000/-.

Accordingly, the award of the Tribunal is modified as follows:

(Rupees Four lakhs Fifty seven thousand Two hundred and Forty only)

The enhanced amount will carry interest at the rate of 9% per annum from the date of petition. The Insurance Company is directed to deposit the amount of compensation less the amount already deposited before the Tribunal, within a period of three months.

The appeal is allowed as above. The parties will bear their respective costs.