J. Ramachandran vs The Oriental Insurance Company Ltd.

S.N. Satyanarayana

This appeal is filed by the claimant in MVC No. 4945/2005 seeking enhancement of compensation awarded to him in the said proceedings.

Though this appeal is coming up for admission, since LCR is already received, at the request of counsel appearing for both the parties, it is taken up for final disposal.

Brief facts leading to this appeal are that the claimant -J. Ramachandran, appellant herein met with an accident on 09.04.2005 at about 3.30 p.m., while he was travelling as pillion rider on Scooter bearing registration No.KA-02/Y-2921. It is his case that he was hit by car bearing registration No.KA-01/Z-695 resulting in fracture of both bones of his left leg. The accident is not in dispute. The fact that claimant suffering fracture of both bones of his left leg in the said accident is also not in dispute. It is further not in dispute that the ownership of car which caused the accident and its coverage for insurance by the respondent - Insurance Company. It is seen that in the said proceedings, the Tribunal on appreciating the oral and documentary evidence available on record, proceeded to award compensation to claimants in the following manner:

i) Pain and agony -

Rs. 40,000/-

ii) Medical expenses -

Rs. 15,000/-

iii) Loss of earning during laid up period. -

Rs. 12,000/-

iv) Loss of amenities & future unhappiness -

Rs. 15,000/-

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Rs. 82,000/-

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Claimant being aggrieved by the quantum of compensation, has come up in this appeal contending that the accident having taken place in the year 2005, the notional income of the claimant which taken at Rs. 3,000/- per month for calculating the loss of income during laid up period is on lower side. That there is error on the part of the Tribunal in not considering the evidence available on record, regarding permanent disability suffered by the claimant resulting in loss of earning of capacity. It is his case that the doctor who treated him in Victoria Hospital has given evidence as P.W. 2, wherein he has stated that the claimant has undergone treatment as inpatient for a period of sixteen days in Victoria Hospital. During the said period, he has undergone surgery for setting right the multiple fracture suffered to his left leg and also the progress that is made in recovery is not taken into consideration while awarding the compensation. It is also his case that though implants were put no compensation is awarded for future medical treatment for removal of the same,

Heard the counsel for appellant and respondent No. 1. Perused the judgment impugned. On going through the same, it is seen that though the claimant stated that the Tribunal has not appreciated the pleadings and evidence available on record it is seen that P.W. 2 has stated in his evidence that the claimant has suffered shortening of leg by 1.5 = 6, mobility loss of 25% - 8, stability loss of 20% = 7% and pain and deformity - 5%. Though P.W. 2 has stated this in his evidence in examination in chief, in his cross examination he has not withstood the same. He has stated that there is considerable improvement in the injury and disability suffered by the claimant due to post accidental treatment due to physiotherapy. That being the case, the Tribunal has rightly not accepted the evidence of P.W. 2 in totality. However, on going through the evidence it is seen that rejection of the evidence in totality is also incorrect for the reason that even if there is improvement in the injured limb, since the injury is multiple fracture to the left leg and the claimant is said to be coolie, it would have telling effect in doing his work, as he was doing earlier which would result in the functional disability to certain extent. What is the extent of functional disability will have to be appreciated based on the evidence on record.

In the absence of acceptable evidence, considering the fact that the claimant has not fully recovered from the injury and that the implant is in place, this Court would take functional disability to whole body at 18% and award compensation accordingly. Further the compensation which is required to be paid to the claimant taking his notional income at Rs. 3.000/- per month, which would work out as under:

3.000 x 12 x 18 = Rs. 6,48,000 x 8 = Rs. 51,840-00

In addition, claimant is also entitled to additional sum of Rs. 15.000/- towards future medical expenses. In the result, claimant is entitled to enhanced compensation in a sum of Rs. 66,840/- payable with interest at 6% from the date of petition till the date of deposit.

Accordingly the appeal filed by claimant is allowed in part. Out of the enhanced compensation and the interest accrued thereon, a sum of Rs. 50,000/- is ordered to be deposited in fixed deposit in any nationalised bank for a period of five years and the balance amount shall be released in favour of the claimant.