Basavaraju vs Rayegowda and Others

B. Sreenivas Gowda, J.—This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal.

With the consent of the learned counsel appearing for the parties the appeal is heard and disposed of finally.

For the sake of convenience, the parties are referred to as they are referred to in the claim petition before the Tribunal.

As there is no dispute regarding certain injuries sustained by the claimant in a road traffic accident that occurred on 9.10.2011 due to rash and negligent driving of a lorry bearing registration No. KA-13-A-6028 by its driver and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:

"Whether compensation of Rs. 4,94,000/- with interest at 6% p.a. awarded by the Tribunal is just and reasonable or does it call for enhancement?" 5. After hearing the learned counsel appearing for parties and perusing the judgment and award of the Tribunal, I am of the view that the quantum of compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and hence it requires to be enhanced.

As per wound certificate Ex. P-5 the claimant has sustained the following injuries :

"1. lacerated open wound over the right thigh with exposed internal aspect,

lacerated wound over the left degloving injury at right thigh and mid tarsal dislocation left with avulsion of head injury."

The injuries sustained and treatment taken by the claimant are evident from Ex. P-6 and 7 discharge summary, Exs. P-12 and P-13 case sheets, Ex. P-15 photographs and corroborated by oral evidence of the claimant and doctor who were examined as PWs. 1 and 2 respectively. PW-2 Dr. Smitha in her evidence has stated that claimant has suffered 40% disability to the lower limb and 19% disability to the whole body.

Considering the nature of injuries sustained by the claimant, Rs. 1,00,000/- is awarded towards ''pain and suffering'' as against Rs. 75,000/- awarded by the Tribunal.

As Rs. 45,000/- awarded by the Tribunal towards ''medical expenses'' is as per the medical bills and prescriptions produced by the claimant, the same is just and proper and there is no scope for enhancement under this head.

The claimant was treated as inpatient for 52 days in Victoria Hospital, Bangalore. Considering the duration of treatment, Rs. 25,000/- is awarded towards ''incidental expenses'' such as conveyance, nourishment and attendant charges.

Considering the age of the claimant i.e., 35 years as on the date of accident, year of accident as 2011 and avocation as a cook, his income assessed by the Tribunal at Rs. 6,000/- per month is just and proper. The nature of injuries suggest that he must have been under rest and treatment for a period of more than eight months. Therefore, a sum of Rs. 48,000/- is awarded towards ''loss of income during laid up period'' as against Rs. 36,000/- awarded by the Tribunal.

Considering the disability stated by the doctor and an amount of discomfort and unhappiness he has to undergo in the future life, Rs. 75,000/- is awarded towards loss of amenities'' as against Rs. 50,000/- awarded by the Tribunal.

Regarding awarding of compensation towards loss of future income, learned counsel for the claimant submits that after sustaining injuries, claimant is not in a position to do any work. Therefore, he prayed for awarding compensation towards loss of future income considering the functional disability at 100%. Whereas, learned counsel for the insurer submits the Tribunal has already taken the disability caused to whole body at 25% as against 19% disability stated by the doctor and awarded compensation towards loss of future income and there is no scope for further enhancement of compensation under this head.

A perusal of the photographs produced at Ex. P-15, would show that there is degloving injury on the left leg from thigh up to ankle and wound debridement and skin grafting were done. There is restriction in the movement of ankle joint and left foot. Considering the same, the Tribunal is justified in taking the functional disability at 25% as against 19% as stated by the doctor. Having regard to the age of the claimant, the multiplier applicable is 16. Taking these factors into consideration, the Tribunal has rightly awarded compensation of Rs. 2,88,000/-towards loss of future earning and the same does not call for interference. Claimant is also awarded a sum of Rs. 25,000/-towards future medical expenses.

Thus, the claimant is entitled for the following compensation:--

Accordingly, the appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs. 1,12,000/- with interest at 6% p.a. from the date of claim petition till the date of realisation.

The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, 70% with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Post Office for a period of 5 years with a right of option for him to withdraw interest periodically. Remaining amount with proportionate interest is ordered to be released in favour of the claimant.

The Tribunal while releasing the amount is directed to issue FD slip to the claimant, so that he can withdraw the FD amount on its maturity and the Bank/Post Office in which the amount will be kept in FD is also directed to release the FD amount on maturity without insisting further orders from the Tribunal.

No order as to costs.