Chotey Khan vs Niranjan and Others

G.P. Mittal, J.—The appeal is for enhancement of compensation in respect of injury suffered by Appellant Chotey Khan in a road accident on 27.10.2009. The Appellant suffered compound fracture of left ankle, injuries over right temporal region and pinna of the ear. He remained under treatment in Sushruta Trauma Centre from 27.10.2009 to 16.11.2009. He received further treatment in Swaran Jayanti Samudaik and Asha Hospital, Mathura, Uttar Pradesh. As per the treatment record the last treatment received by the Appellant on 23.07.2010. The Appellant suffered permanent disability of 26% of left lower limb as per disability certificate Ex. PX. The Tribunal assessed the compensation as Rs. 2,98,877/-, which is tabulated hereunder: -

Sl. No.

Head of Compensation

Compensation granted by the Tribunal

1.

Medical expenses

Rs. 21,300/-

2.

Conveyance and special diet

Rs. 27,000/-

3.

Loss of earning for 9 months

Rs. 35,577/-

4.

Pain & suffering

Rs. 75,000/-

5.

Loss of earning capacity

Rs. 1,40,000/-

Total

Rs. 2,98,877/-

The following contentions are raised on behalf of Appellant: -

(i) The Tribunal reduced the earning capacity in respect of whole body to 20% though as per disability certificate it was 26%. Since the Appellant was working as a junk dealer and was to roam on a bicycle, his loss of earning capacity ought to have been taken to be 30% and future prospects ought to have been considered.

(ii) No compensation was awarded towards future treatment.

(iii) No compensation was awarded towards disfigurement and loss of amenities of life.

According to the disability certificate Ex. PX, the Appellant suffered compound fracture of left ankle with skin avulsion with skin grafting on the dorsum of the foot. He suffered 26% permanent disability in respect of his left lower limb. Though, the Appellant deposed that he would not be able to earn his livelihood on account of injuries he suffered, yet no medical evidence was produced that the Appellant would not be able to ride on a bicycle. In the circumstances, the loss of earning capacity was rightly taken by the Tribunal to be 20%. A compensation of Rs. 1,40,000/- under this head seems to be just and reasonable.

On account of permanent disability the Appellant would have difficulty in running and squatting. He was entitled to some compensation for loss of amenities of life, which I assess as Rs. 25,000/-

The Appellant''s testimony that, he was still undergoing treatment was not challenged in cross-examination though no detail of future treatment was placed on record, yet considering the nature of injuries the Appellant is entitled to a compensation of Rs. 10,000/- for future treatment/ physiotherapy. I will tabulate the awarded compensation as under: -

Sl. No.

Head of Compensation

Compensation granted by the Tribunal

Compensation granted by the High Court

1.

Medical expenses

Rs. 21,300/-

Rs. 21,300/-

2.

Conveyance and special diet

Rs. 27,000/-

Rs. 27,000/-

3.

Loss of earning for 9 months

Rs. 35,577/-

Rs. 35,577/-

4.

Pain & suffering

Rs. 75,000/-

Rs. 75,000/-

5.

Loss of earning capacity

Rs. 1,40,000/-

Rs. 1,40,000/-

6.

Loss of amenities of life

Rs. 25,000/-

7.

Future treatment/ Physiotherapy

Rs. 10,000/-

Total

Rs. 2,98,877/-

Rs. 3,33,877/-

The enhanced compensation of Rs. 35,000/- will carry interest @ 7.5% per annum from the date of filing of the petition till the realization of the amount. The Respondent No.3, Reliance Insurance Co. Ltd., insurer of the offending vehicle is directed to deposit the enhanced compensation along with interest within six weeks.

The appeal is allowed in above terms.