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Judgment
B.S. Indrakala, J.—Though the appeal is listed for admission with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal. The above appeal is preferred against the judgment and award dated 03-01-2007 passed in MVC No. 5524/2005 on the file of the XVI Additional Judge, Court of Small Causes and MACT, Bangalore.
It is the case of the claimant that on 18-11-2000 at about 10.00 a.m. while he was crossing the road slowly and cautiously by observing all traffic norms, the motor bike bearing registration No. CBZ-KA-02-EB/9915 which was driven by its rider in a rash manner came and dashed against him and caused the accident; as a result of which, he sustained grievous injuries like fracture of both bones of left leg and abrasion over left leg; immediately, he was shifted to nearby Gayathri Hospital, Vijayanagar, where doctors found that both bones of left leg were fractured. Further it is contended that he was discharged from the said hospital was admitted to K.C. General Hospital on 26-11-2000, where he was an in-patient till 13-12-2000 and underwent surgery; during that period, interlocking nailing and insertion of rods were carried out etc., Further it is contended that during the period when claimant met with accident he was working as a taxi driver and was aged about 35 years and earning Rs. 5,000/- per month and on account of the injuries sustained, he is having disability which is permanent and unable to carry out the avocation as he was doing earlier.
The respondent-insurer in the statement of objections filed while denying the cause of accident, the age, the avocation and the income of the claimant. It is specifically pleaded that there is also contributory negligence on the part of the claimant besides liability if any the same is subject to the terms and conditions of the policy.
The petitioner to prove his case apart from getting himself examined as PW 1, has also chosen to examine the medical officer who treated and assessed his disability as PW 2 and got marked Exs. P1 to P10. On behalf of the respondents, one of the officials of the Insurance Company is examined as RW-1 and Exs. R1 & R2 are marked. The Tribunal by considering the evidence so placed on record deemed it fit to award a sum of Rs. 63,600/- in all with interest at the rate of 6% p.a. from the date of petition till the date of realization.
Being aggrieved by the said judgment and award, the claimant is in appeal inter alia contending amongst other grounds that the amount of compensation awarded is inadequate and seeks enhancement of the same.
The learned counsel appearing for the appellant submitted that though PW-2 has deposed that the appellant suffered disability of 45% to the left lower limb and 30% to the whole body, the Tribunal by observing that the said Medical Officer - PW-2 was not an Orthopedic surgeon failed to consider the said evidence and further he submitted that as the whereabouts of the surgeon who conducted the surgery was not known, he was not available and also retired from the service, the appellant chose to examine another Medical Officer who was along with the said Orthopedic Surgeon. Thus, he submitted that merely because PW-2 was not an Orthopedic Surgeon his evidence in entity would not have been ignored. Further he submitted that the amount awarded under other heads like towards ''loss of income during the period of treatment'', towards conveyance and nourishment etc., are all on the lower side and seeks enhancement of the compensation.
Per contra, the learned counsel appearing for the respondent - Insurer contended that in the facts and circumstances of the case, the amount awarded is just and proper and the same does not call for any enhancement.
Admittedly the occurrence of the accident and the appellant having sustained grievous injuries in the said accident are not in dispute.
From the evidence on record, it is seen that the appellant sustained fracture of both bones of left leg. Further it is seen in his evidence that he was an inpatient at K.C. General Hospital for 18 days and was treated conservatively. In the circumstances, the amount of Rs. 25,000/- awarded by the Tribunal under the head ''pain and suffering'' , Rs. 8,600/- awarded towards medical expenditure by considering the medical bills produced by the claimant and another sum of Rs. 5,000/- towards ''conveyance & nourishment expenses'' are all just and proper and the same does not call for any enhancement. However, with regard to the ''loss of income during laid up period'', the Tribunal by taking Rs. 5,000/- as the income of the claimant awarded the said sum only for a period of one month which is not proper. Considering the nature of injuries in relation to the nature of avocation i.e., as a driver, it is reasonable to award towards ''loss of income during laid up period'' for a period 3 months as against period of one month and thus the appellant is compensated for a sum of Rs. 15,000/- towards ''loss of income during laid up period''.
On perusal of the judgment it is seen that the PW-2 has deposed that the claimant got difficulty and having pain in squatting movements, difficulty in cross-legged sitting, cannot stand for long time and in the circumstances he opined that there is a permanent disability of 45% to the left lower limb and 30% to the whole body. Further he has also deposed that even in the disability certificate issued by Orthopedic surgeon of K.C. General Hospital it is stated that the injured has disability of 45% to the left lower limb and 30% to the whole body. The said evidence of PW-2 cannot be discarded in toto. Thus, considering the disability assessed by the doctor - PW-2 at 45% in relation to left lower limb, in relation to whole body, the same can be assessed at 15%. Thus, by considering the age of the claimant as 30 years, by applying multiplier ''17'' and taking notional income at Rs. 5,000/- per month, the claimant is entitled to be compensated under the head ''loss of income on account of disability'' at Rs. 5,000/- x 15/100 = 750 x 12 x 17 comes to Rs. 1,53,000/-. Thus, the appellant is entitled to be compensated as hereunder:
ORDER
The above appeal is partly allowed by awarding compensation of Rs. 2,11,000/- with interest at the rate of 6% from the date of petition till the date of realization as against Rs. 63,600/- awarded by the Tribunal.
The respondent - Insurance Company shall deposit the said enhanced amount within eight weeks from the date of receipt of a copy of this order and on such deposit a sum of Rs. 1,00,000/- with proportionate interest be invested in any of Nationalized Bank of the choice of the appellant in his name for a period of 5 years with liberty to the appellant to withdraw 50% of the interest periodically and the balance of 50% of interest so accrued is payable on maturity of the deposit.
The balance amount of Rs. 1,47,400/-with proportionate interest shall be released in favour of the appellant for his immediate necessities.
While passing the order, the direction issued by the Tribunal to the respondent -Insurer to pay the said amount and recover the same from the owner of the vehicle remains un-altered.
Further the appellant is not entitled for interest on the enhanced amount for the delayed period of 755 days as per the order dated 28-10-2013.
Office to draw the award accordingly.