Jayakara Shetty vs Krishna Naik and The Oriental Insurance Co. Ltd.

A.S. Pachhapure

The appellant dissatisfied with the amount of compensation awarded for the injuries sustained by him in a motor vehicle accident has filed this appeal seeking enhancement. It is on 14.12.2006 at about 5.30 p.m. the appellant riding his Motor Cycle bearing registration No. KA-20/E-5452 near. Chigiribettu of Kudi Village, an autorickshaw bearing registration No.KA-20/A-335 came from Hebri side driving in a rash and negligent manner and hit the Motor Cycle. The appellant sustained grievous injuries and was treated in Mahesh Hospital. He claims to have spent Rs. 50,000/- towards medical expenses and suffered disability. In these circumstances, he claimed a compensation of Rs. 3,78,000/-with interest.

The insurer contested the claim of the appellant. During the enquiry, appellant was examined as P.W. 1, the Doctor P.W. 2 and in their evidence Exs. P-1 to P-83 were marked. The respondent did not lead any evidence, but Exs.C-1 and C-2 were marked with consent. The Tribunal on appreciation of the materials on record, held actionable negligence on the part of the driver of the autorickshaw and considering the fact that the appellant has suffered fracture of both bones of right lower limb, granted compensation of Rs. 88,300/- on different ground with interest at 8%. Dissatisfied with the quantum of compensation, the present appeal has been filed.

I have heard the learned counsel for both parties.

The point that arise for my consideration is:

Whether the appellant is entitled to enhanced compensation, if so to what extent?

As could be seen from the material placed on record, the appellant has suffered fracture of tibia and fibula of the right leg. The Tribunal has granted compensation of Rs. 20,000/-for pain, suffering and mental agony. The appellant was inpatient for about 45 days in the hospital. Considering that both the bones of the right leg were fractured and the appellant was in hospital for a long time. I think the compensation of Rs. 20,000/- on this head is on lower side. Considering the circumstances, I am of the opinion that the appellant is entitled to an additional sum of Rs. 15,000/- for pain, suffering and mental agony. The appellant has produced the medical bills and to that extent the compensation awarded by the Tribunal is just and proper. When a person suffered fracture of both bones of his right leg it is rather difficult for him to immediately resume the normal duties after his discharge from the hospital. Therefore. I think it is just and proper to consider the loss of income for a period of three months from the date of the accident, thereby the appellant is entitled to an additional sum of Rs. 7,500/-on this head. The Tribunal has assessed the income of the appellant at Rs. 3,000/-, the accident is of the year 2006. Hence I think it is just and proper to assess the income at Rs. 4,000/-. The appellant has suffered disability at 23% of a particular limb. By applying the general principle, 1/3rd has to be considered for disability of the whole body, thereby the appellant has suffered 7% of permanent disability for whole body and thereby considering the income at Rs. 4,000/- and disability at 8% and adopting multiplier of 7, loss of income would be Rs. 26,880/-. Hence the appellant is entitled to additional sum of Rs. 7,080/-.

Though the appellant has suffered permanent disability, no compensation has been awarded to loss of amenities. Considering the fact that the appellant has been granted future loss of income, I think it is just and proper to grant a sum of Rs. 10,000/- towards loss of amenities. The evidence discloses that there are implants fixed at the time of surgery and they are to be removed. Therefore the appellant is entitled to additional sum of Rs. 10,000/- towards future medical expenses So in all the appellant is entitled to a sum of Rs. 49,580/-. The appellant is entitled to additional sum of Rs. 49,580/- with interest at 6% from the date of petition till its payment.

In that view of the matter, I answer the point for consideration in the affirmative and pass the following:

ORDER

The appeal is allowed in part. In addition to the compensation of Rs. 88,300/- awarded by the Tribunal, the appellant is entitled to additional sum of Rs. 49,580/- with interest at 6% from the date of petition till payment. The enhanced amount shall be paid to the appellant.