B. R. Vijibovi vs Manager National Insurance Co., Ltd.

,,,

This appeal is preferred by the claimant â€" injured against the judgment and award dated 17.10.2012 passed by the Tribunal in MVC,,,

No.2075/2011 seeking for enhancement of compensation, not being satisfied with the compensation awarded by the Tribunal.",,,

The factual matrix of the appeal is as under:,,,

It is stated in the claim petition that on 21.06.2011 at about 10.30 a.m., when the appellant â€" claimant was proceeding along with his uncle’s son",,,

in his autorickshaw bearing Regn.No.KA-13-A-5111, by the left side of the road, at that time a lorry bearing Regn.No.KA-21-360 driven by its driver",,,

at high speed and in a rash and negligent manner dashed against the said auto of the appellant. As a result, the appellant sustained grievous injuries",,,

including fracture and his left leg below the knee was amputated. Immediately, he was given first aid in Srinivas Hospital and was then shifted to",,,

Abhaya Hospital where he was treated as an in-patient for the injuries and spent huge amount towards medical expenses. He was an agriculturist and,,,

fish seller by profession and was earning Rs.10,000/-prior to the accident and due to the accidental injuries, being not in a position to attend to his work",,,

as earlier and support his family members, he filed a claim petition before the Tribunal seeking compensation.",,,

After service of notice, the owner of the offending vehicle as well as the insurer did appear before the tribunal, filed their written statement and",,,

contested the claim petition. During the enquiry before the tribunal, the claimant has established the occurrence of the accident, actionable negligence",,,

on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the,,,

vehicle or by the insurer.,,,

The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the driver of",,,

the offending vehicle and consequently awarded total compensation of Rs.7,97,000/- with interest at 6% per annum from the date of petition till the",,,

date of realization. It is this judgment which is under challenge in this appeal seeking enhancement of compensation urging various grounds.,,,

Learned counsel for the appellant contends that the Tribunal has failed to take into consideration the fact that the appellant’s left leg below the,,,

knee was crushed and as a result it was amputated. Amputation would have caused untold pain and suffering as a result of which he had suffered,,,

permanent disability. Hence, the learned counsel contends that the compensation granted by the Tribunal towards ‘Pain and suffering’ requires",,,

to be enhanced suitably.,,,

It is the further contention of the learned counsel that even as per the evidence of the Doctor the whole body disability was assessed at 80%. Hence,",,,

the learned counsel contends that when the Doctor had assessed the disability at 80%, the Tribunal erred in not considering the same while computing",,,

compensation towards ‘Loss of future earning’. He further contends that the accident being of the year 2011, as per the Lok Adalath Chart, his",,,

income be taken at Rs.6,000/- and the disability at 80% to award computation towards ‘Loss of future earning’.",,,

In support of his contention, the learned counsel for appellant has placed reliance on the case of PRATAP NARAIN SINGH DEO VS. SRINIVAS",,,

SABATA & ANR. [(1976) 1 SCC 289], wherein it is held as under:",,,

“2. The Commissioner held in his order dated May 6, 1969 that the injury had resulted in amputation of the left arm of the respondent above the",,,

elbow. He held further that the respondent was a carpenter by profession and ‘by loss of his left hand above the elbow he has evidently been,,,

rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only’. He therefore adjudged him to have lost,,,

“100% of his earning capacityâ€. On that basis, he calculated the amount of compensation at Rs.9,800/- and ordered the payment of penalty to the",,,

extent of 50%, together with interest at 6% p.a., making a total of Rs.15,092/-â€​.",,,

Further in para 5 of the said judgment it is held as under:,,,

“5. The expression ‘total disablement’ has been defined in Section 2(1)(l) of the Act as follows:,,,

“total disablement†means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was",,,

capable of performing at the time of the accident resulting in such disablement.,,,

It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for",,,

consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. x,,,

x x x â€​,,,

(emphasis supplied),,,

Relying on the definition of Section 2(1)(l) of the Act, the learned counsel for the appellant strenuously contends that the appellant â€" injured being an",,,

agriculturist and fish seller by profession, due to the traumatic amputation of his left leg below the knee, it has become impossible for him to eke out his",,,

livelihood. Since in the present case on hand, as he is incapacitated to perform the work which he was performing prior to the accident, the whole",,,

body disability of the appellant ought to have been adopted at 80% in order to award his compensation towards ‘Loss of income due to disability.,,,

Since the Tribunal has not considered the same, the learned counsel pleads that the said aspect be taken into consideration by this Court and award",,,

compensation towards ‘Loss of future income due to disability’ by taking his disability at 80%.,,,

It is the further contention of the learned counsel that the Tribunal has awarded meager compensation towards ‘Loss of income during laid up,,,

period’ as well as towards ‘Loss of amenities’, which head requires considerable enhancement by this Court having regard to the fact that",,,

the appellant has lost all his happiness and amenities in life due to the amputation of his left leg below knee and he would always be dependant on,,,

some other person to aid him in his regular activities as well. Thus, the learned counsel strenuously contends that the appeal filed by the appellant be",,,

allowed and the compensation awarded by the Tribunal be enhanced in respect of all the above heads suitably.,,,

Per contra, learned counsel for the first respondent â€" Insurance Company vehemently opposes the contentions put forth by the counsel for the",,,

appellant and contends that the Tribunal has considered the fact of the amputation of the claimant’s left leg below knee and has awarded just and,,,

fair compensation under all the heads and hence, enhancement of compensation under any of the heads would not arise. Hence, the learned counsel",,,

contends that the judgment passed by the Tribunal requires no interference by this Court.,,,

In the backdrop of the contentions taken by the learned counsel for the parties, I find that there is no dispute with regard to the accident that",,,

occurred on 21.6.2011 and with regard to the injuries suffered by the appellant / claimant in the accident. The Wound Certificate at Exhibit P.7 reveals,,,

that the appellant’s left leg below knee was completely crushed and hence the same was amputated.,,,

Particulars,"Compensation awarded by

MACT","Compensation enhanced by this

Court",Total

Pain and agony,"30,000","20,000","50,000

Medical expenses, conveyance, special diet, nourishment and attendant

charges","2,25,000",Nil,"2,25,000

Loss of future income,"4,32,000","3,45,600","7,77,600

Loss of income during laid up period,"25,000","5,000","30,000

Towards artificial limb,"25,000",Nil,"25,000

Loss of marriage prospects,"50,000",Nil,"50,000

Loss of amenities,"10,000","10,000","20,000

Future prospects,Nil,"50,000","50,000

TOTAL,"7,97,000","4,30,600","12,27,600