Mohammad Gouse vs Fattu A. Mulla and Others

Anand Byrareddy, J.—Heard the learned Counsel for the Appellants and the learned Counsel for the Respondent No. 2.

The Appellant-Claimant before the Motor Accident Claims Tribunal [hereinafter referred to as ''Tribunal'' for brevity] is seeking compensation in respect of injuries suffered in a motor vehicle accident.

It was his case that on 13.05.2011 at about 6.45 pm., when he was proceeding on the road as a pedestrian, and when he was near Ajis Auto Gas Pump Station, a crane, bearing Chassis No. 61117013, had suddenly come and dashed against the Claimant, resulting in the appellant suffering grievous injuries on his head, both legs and all over his body. He was rushed to the District Hospital, Belgaum for treatment. But, he never recovered from those injuries and had suffered permanent disability. The left leg of the appellant was amputated above the knee and the fracture of right left toe second and third metatarsal bone. The appellant therefore claimed he was permanently disabled and that he was an inpatient from 17.05.2011 to 18.06.2011 and after discharge from the Hospital, he was under further treatment at Yash Hospital, Belgaum. Thereafter, he had filed a claim petition seeking compensation of Rs. 25 lakh.

The respondent-Insurance Company had contested the claim petition and on adjudication, the Tribunal has awarded a sum of Rs. 3,68,000/- under several heads.

It is that which is questioned by the Appellant seeking enhancement of compensation.

It is firstly pointed out that the appellant had suffered a crush injury of left leg which resulted in the amputation of his left leg above the knee and also other injuries which have resulted in disability, which has been assessed by the Medical Practitioner at 80%. Though the percentage of disability, as opined by the Medical Practitioner, is with reference to particular limbs, the whole body disability has not been expressed by the Medical Practitioner. The Tribunal, therefore, having proceeded on an assumption that there was a whole body disability of 30%, has led to the Tribunal awarding a paltry amount of compensation towards ''loss of future income''.

Secondly, it is pointed out that income of the appellant has been taken on sheer guess work. He was a ''Mason'' and aged about 34 and was therefore sufficiently skilled and experienced. The Tribunal having attributed a monthly income of Rs. 3,000/-, is very low and when evidence was tendered through P.W. 3 who has stated that the appellant was being paid anywhere between Rs. 7,300/- to Rs. 12,000/- per month, depending on the work and hence the Tribunal having attributed only Rs. 3,000/- per month, was without reference to any basis and this has again resulted in loss of future income being assessed at a very low sum.

It is further pointed out that pain and suffering which the appellant underwent and continues to suffer on account of his disability is not taken into account by the Tribunal and a sum of Rs. 50,000/- awarded under that head would hardly compensate the appellant and seeks enhancement of the same.

Similarly, loss of amenities is substantial and the Tribunal having thought it fit to award a sum of Rs. 50,000/- is again on the lower side and in this fashion, learned Counsel would seek just and fair enhancement on the basis of the true income and permanent disability of which he suffers.

The learned Counsel for Respondent No. 2, on the other hand, would point out that in so far as the income of the appellant is concerned, there was no evidence which could be accepted. The evidence that was tendered was indifferent, in that P.W. 3 who was examined to prove the income earned by the appellant did not indicate the amount that he may have been earning which varied from Rs. 1,200/- to Rs. 7,800/- paid on various days would not be indicative of any steady income and it would not reflect the exact income that the appellant was earning and therefore the Tribunal having attributed Rs. 3,000/- per month cannot be said to be unfair and unjust and in the absence of better evidence, the Tribunal has awarded just and reasonable compensation, though it is not possible for the appellant to have earned every day and apparently he was not earning everyday at that rate as per the evidence tendered. Therefore, even if it is on the lower side, it offsets the denial of any such compensation.

In so far as the percentage of disability is concerned, the learned Counsel would submit that there are established rules as to arrive at the disability even if disability is expressed in respect of a particular limb, for the purposes of Workmen''s Compensation Act, 1923 and therefore would submit that if the guidelines under Workmen''s Compensation Act, 1923 and the Schedule to that Act is applied, the appellant would suffer loss of dependency of 70% which may be safely adopted. Further, in so far as other heads of compensation are concerned, it is pointed out that the Tribunal has awarded Rs. 50,000/- towards an inexplicable head of claim, namely, towards ''amputation'' and therefore the said amount is not under challenge by this respondent. If the same is taken into account, it would sufficiently benefit the claimant even if the compensation under the head of ''pain and suffering'' and ''loss of amenities'' is on the lower side and would submit that there is no warrant for interference.

In the above view of the matter and on a close examination of the material on record, the income of the appellant has been taken at Rs. 3,000/- when he was aged about 34 and a mason by profession. Having regard to the fact that he was working in a city like Belgaum and given that there was some evidence of the appellant earning at least Rs. 7,800/- per month, if he had potential to earn such amount, it would be appropriate to attribute at least Rs. 8,000/- as being the income he would have graduated to over a period of time and if that is accepted as a fair amount, the appellant would be entitled to a substantial enhancement of compensation. If 70% disability is to be applied, the appellant would be entitled to Rs. 10,08,000/- instead of Rs. 1,62,000/- towards ''loss of future income''.

In so far as the ''pain and suffering'' is concerned, the appellant has suffered amputation of his lower limb above the knee and this would leave him crippled for the rest of his life. Though pain may have passed by, the suffering continues. Therefore, it would be just and reasonable to enhance the same by another Rs. 25,000/- towards ''pain and suffering''.

Loss of amenities similarly are an abstract concept. It would result in loss of amenities for the rest of his life. This again would have to be addressed with reference to the avocation in life of the claimant, circumstances in which he lived and amenities that he would stand to lose. Therefore, it would be, in our opinion, just and fair if it is enhanced by Rs. 25,000/- under this head.

In so far as compensation towards further treatment by provision of an artificial limb, if the appellant should opt for one, no provision is made by the Tribunal. Since we are not provided with any material as to the cost of such a limb, an amount of Rs. 40,000/- is attributed towards the purchase of an artificial limb.

Accordingly, the Appellant is held entitled to a total enhanced compensation of Rs. 9,36,000/- over and above the compensation of Rs. 3,68,000/- awarded by the Tribunal. The additional compensation shall carry interest at 6% per annum from the date of the claim petition till the date of payment. The amount shall be deposited for the benefit of the claimant within a period of eight weeks, from the date of receipt of a copy of this judgment, failing which, interest shall be payable at 12% per annum instead of 6% from the date of default, till payment.