Basheer Abdul Basheer vs Sriram General Insurance Co. Ltd. and Shivanna

Aravind Kumar, J.—This is a claimant''s appeal for enhancement of compensation not being satisfied with the compensation awarded by the Tribunal by MACT, Bangalore, in MVC No. 7968/2011 dated 16.10.2012. I have heard the arguments of Sri Rajanna, learned counsel appearing for appellant/claimant and Sri H.N. Keshava Prashanth, learned counsel appearing for respondent No. 1. Respondent No. 2 is served and unrepresented. Perused the judgment and award in question, as also records secured from the Tribunal.

In a road traffic accident that occurred on 09.06.2011 claimant sustained injuries and was initially treated at Government Hospital, Sira and later shifted to Government Hospital, Tumkur and thereafter for higher and better treatment he was shifted to Victoria Hospital, Bangalore and he was treated as an inpatient thereat. As per Ex. P-5, wound certificate claimant had sustained grievous and simple injuries. He was an inpatient at Victoria Hospital from 10.06.2011 to 08.07.2011. On account of crush injury sustained there is amputation below elbow of left upper limb. Said amputation was done on 16.05.2011 and also claimant has undergone debridement and split skin graft for left lower limb and right leg on 26.06.2011.

For the assessment of disability suffered by claimant he was examined on 11.06.2012 by the Senior Resident Doctor, Department of Plastic Surgery, Victoria Hospital, as P.W. 2. He has opined that whole body disability of claimant is at 25%. He has also deposed that claimant needs an artificial limb for left upper limb and surgical procedures for the right lower limb. Considering the medical evidence available on record, Tribunal has awarded a total compensation of Rs. 4,22,200/- under the following heads:

It is the contention of Sri Rajanna, learned counsel appearing for appellant that Tribunal erred in construing the income of claimant at Rs. 5,000/- per month, though he had produced a certificate letter dated 26.05.2012 issued by Swapna Beedi Works certifying that claimant was being paid Rs. 200/- per day and as such, Tribunal ought to have taken the income of the claimant at Rs. 6,000/- per month. He would also contend that compensation awarded under other heads is abysmally on the lower side and seeks for enhancement of compensation.

Sri. H.N. Keshava Prashanth, learned counsel appearing for respondent No. 1 would support the judgment and award in question and contends that compensation awarded by the Tribunal itself is on the higher side and it does not call for any enhancement.

Having heard the learned Advocates appearing for the parties and on perusal of judgment award in question, as also records secured from the Tribunal it would indicate that claimant had contended in the claim petition that he was working as a supervisor in Swapna Beedi Works. However, in the certificate issued by the said Swapna Beedi Works, which is dated 26.05.2012 and which came to be marked as Ex. P-7 it would indicate that he was working on daily wage basis. It does not indicate that he was working as a supervisor. A perusal of the same would also indicate that he is not working after the date of accident Undisputedly, the Author of the said document has not been examined. Even in his evidence namely, in the affidavit filed in lieu of examination-in-chief he has stated that he was working as a supervisor at Swapna Beedi Works, Gadag. Tribunal on account of these discrepancies has not accepted the contention of claimant regarding his avocation and rightly so it has adopted guess work and construed the income of claimant at Rs. 5,000/- per month. Taking into consideration that the accident in question had occurred in the year 2011 and income of claimant has been contended at Rs. 5,000/- per month. I am of the view that finding of the Tribunal neither suffers from any infirmity nor same being contrary to evidence available on record, same cannot be disturbed. Hence, finding of the Tribunal awarding compensation towards loss of future income'' cannot be found fault with and it is hereby affirmed.

It is not in dispute that on account of injuries sustained by claimant he was treated as an inpatient at Victoria Hospital from 10.06.2011 to 08.07.2011 as evidenced from discharge card Ex. P-8. On 16.06.2011 he has undergone surgery for amputation below elbow of left upper limb and has undergone one more surgery on 26.06.2011 for debridement and split skin graft for left lower limb and right leg. P.W. 2 doctor who has treated the claimant has entered the witness box and has stated that he has assessed the disability of claimant and has opined the whole body disability is at 24%. He had also stated that claimant would need artificial limb for upper limb and he has to undergo one more surgery procedure for the right lower limb. Considering this evidence available on record, I am of the considered view that compensation awarded by the Tribunal towards loss of amenities'' and ''future medical expenses'' is on the lower side and it requires to be enhanced. Since there is amputation at the elbow level to the right upper limb, claimant is bound to suffer certain discomforts in life and as such, compensation of Rs. 1,00,000/- is required to be awarded towards loss of amenities'' and accordingly, it is awarded in substitution to what has been awarded by the Tribunal. Since Tribunal has awarded a sum of Rs. 25,000/- it requires to be deducted and as such, an additional compensation of Rs. 75,000/- is awarded towards loss of amenities''.

Doctor P.W. 2 has stated in his examination in chief dated 19.07.2012 that claimant would have to spend amount towards purchase of prosthetics (artificial limb) ranging from Rs. 8,000 to Rs. 8,00,000/- for left upper limb. Undisputedly, claimant has not produced any material to show that the proposed artificial limb, which he intended to be fixed on him and in the absence of any positive evidence in this regard, contention of Sri Rajanna that compensation as opined by the doctor requires to be awarded, cannot be considered. Taking into consideration the nature of avocation of claimant being that of a supervisor in a Beedi factory and the evidence available on record namely that of the doctor, that claimant will have to expend amount towards artificial limb and also for surgery to right lower limb, I am of the considered view that additional compensation of Rs. 50,000/- if awarded, it would meet the ends of justice and accordingly, same is awarded towards ''future medical expenses''. Thus, in all claimant would be entitled to an additional compensation of Rs. 1,25,000/- and compensation awarded by the Tribunal under all other heads is hereby affirmed. Hence, for the reasons aforestated, following order is passed:

ORDER

i. Appeal is hereby allowed in part.

ii. Judgment and award passed by the Tribunal in MVC No. 7968/2011 dated 16.10.2012 is hereby modified and an additional compensation of Rs. 1,25,000/- is hereby awarded and interest @ 6% p.a. is awarded only towards compensation of ''loss of amenities'' from the date of petition till date of payment or deposit whichever is earlier. It is made clear that claimant would not be entitled for interest on the compensation awarded by this Court towards ''future medical expenses'' of Rs. 50,000/-.

iii. Respondent No. 1 - Insurer is directed to deposit the compensation with interest before the jurisdictional Tribunal within an outer limit of 6 weeks from the date of receipt of certified copy of this order.

iv. Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.