G. Suhail vs H. Nataraja

Aravind Kumar, J.—This is a claimant''s appeal questioning the correctness and legality of the judgment and award passed in MVC No. 403/2008 dated 28.01.2009 by the MACT, Davanagere seeking enhancement of compensation.

Though matter is listed for orders by consent of learned Advocates appearing for the parties, it is taken up for final hearing.

I have heard the arguments of learned Advocates appearing for the parties.

Facts in brief leading to filing of this appeal are as under:

"On account of a road traffic accident that occurred on 03.02.2008 claimant contended that he sustained injuries and suffered consequential disability and as such, claiming compensation a claim petition under Section 166 of Motor Vehicles Act, 1988 came to be filed. The insurer on service of notice appeared and filed its statement of objections and averments made in the claim petition came to be denied."

On the basis of the pleadings of the parties, Tribunal has framed issues for its determination and on evaluation of the evidence both oral and documentary tendered, Tribunal has allowed the claim petition in part. Not being satisfied with compensation awarded by Tribunal, claimant has filed this appeal seeking for enhancement.

Having heard the learned advocates appearing for the parties and on perusal of the evidence on record it would clearly indicate that claimant had sustained following injuries:

"(1) Compression fracture of L1 body of Vertebra

(2) Transverse process fracture of L5 vertebra without neurological involvement."

In order to prove the nature of injuries sustained and extent of permanent disability suffered claimant had examined the doctor who treated him as PW-4. He has stated on account of injuries sustained by claimant though he is able to walk and stand he will not be able to bend. Doctor has opined as under:

"Considering the functional factors, clinical examination and radiological features I am of the opinion that the patient having partial disability to the extent of 25% of whole body".

In the cross examination dated 07.01.2009 nothing worthwhile has been elicited to discredit the said witness. Infact in the cross examination Doctor has stated that claimant would not be able to bend easily on account of L-1 and L-5 Vertebra fracture. As such he has assessed whole body disability at 25%. Without there being any contra medical evidence available on record tribunal could not have jumped to a conclusion that fractures are simple in nature. Infact the tribunal has recorded a finding at paragraph 11(3) to the following effect:

"The petitioner has stated xx at Exhibit P-13. But during the course of cross examination PW-4 Dr. S. Satyendra Rao has clearly admitted that the petitioner has sustained only simple fracture injuries in the said accident and he has also admitted that except stiffness of back on bending forward the petitioner has no any difficulty in walking and running".

Cross examination of PW-4 which has been made available does not indicate about any such suggestion made by learned counsel appearing for insurer before tribunal to the doctor and he having admitted that fractures sustained by claimant being simple fractures. Hence, this court is of the considered view that tribunal committed a serious error in substituting its view to expert evidence, namely evidence of doctor. Doctor has categorically stated that injury to vertebra and claimant being engaged in the avocation of stitching beds said avocation not only involves bending quite often but also require heavy physical activity. As such doctor has categorically stated that there is permanent physical disability to the whole body to an extent of 25%. In that view of the matter tribunal committed a serious error in construing the whole body disability at 8%. Hence, compensation requires to be determined under the head loss of future income'' by construing the whole body disability at 25%. Though Sri. Mahesh Uppin, learned counsel appearing for appellant would vehemently contend that income of claimant should be construed at Rs. 4,000/- P.M., I am not inclined to accept the same since accident is of the year 2008 and there is no material whatsoever produced to prove the income of claimant except his self serving testimony. Hence, earning of Rs. 3,000/- considered by the tribunal is just and proper and thus claimant would be entitled for additional compensation towards loss of future income'' which is recomputed as under:

Compensation awarded by tribunal under all other heads is just and reasonable and does not call for interference at the hands of this court.

Hence, the following:

ORDER

"(1) Appeal is hereby allowed in part.

(2) Judgment and award passed by Tribunal in MVC No. 403/2008 dated 28.01.2009 is hereby modified and an additional compensation of Rs. 10,160/- is hereby awarded which shall carry interest @ 6% p.a. from date of petition till date of payment or deposit whichever is earlier.

(3) The apportionment and order for deposit of the enhanced compensation shall be on the same lines as has been ordered by the Tribunal.

(4) Insurance company is directed to deposit the additional compensation amount with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of copy of this order.

(5) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith."