Mr. Musharaf @ Musrath vs H.T. Manjegowda and M/s. New India Assurance Co. Ltd.

B. Sreenivase Gowda, J.—This appeal is by the claimant seeking enhancement of compensation awarded by the Tribunal. Though the matter is listed in the orders list, with the consent of learned Counsel appearing for the parties, it is taken up for final disposal.

For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.

As there is no dispute regarding injuries sustained by the claimant in a motor traffic accident occurred on 03.03.2007 due to rash and negligent driving of lorry bearing registration No. KA-13-A-1424 by its driver and liability of the insurer of the said vehicle to pay compensation, the only point arises for consideration is:

Whether compensation awarded by the Tribunal is just and proper or does it call for enhancement?

As per Ex. P.4 wound certificate claimant has sustained the following injuries:

1) Comminuted displaced fracture neck femur (right)

2) Fracture left lower end of radius;

3) Ulnar nerve unneopraxis;

4) Changes of a vascular nicteosis explained to patient. If the total hip replacement.

Injuries sustained and treatment taken by him are also evident from Ex. P5 discharge summary, Ex. P15 outpatient card, Ex. P15 x-ray films and supported by oral evidence of the claimant and doctor examined as PWs 1 and 4 respectively. PW 4 Dr. S. Ramachandra has stated that the claimant has suffered 60% disability to right lower limb, 15% to left upper limb and 35% to whole body.

Considering two major fractures and other injuries sustained by the claimant Rs. 50,000/- is awarded towards pain and suffering as against Rs. 30,000/- awarded by the Tribunal under this head.

Claimant has produced medical bills for Rs. 48,691/-. It was not disputed by the other side. Therefore the Tribunal is not justified in awarding Rs. 35,000/- towards medical expenses. Therefore I award Rs. 48,691/- towards medical expenses as against Rs. 35,000/- awarded by the Tribunal under this head.

He was inpatient for 31 days in Highland Hospital. Considering the same, a sum of Rs. 15,000/- awarded by the Tribunal towards incidental expenses such as conveyance, nourishment and attendant charges as against Rs. 10,000/- awarded by the Tribunal under this head.

Learned Counsel for the claimant submits claimant is driver earning Rs. 10,000/- p.m. and he was driving the vehicle at the time of the accident.

Learned Counsel for the insurer submits that claimant was proceeding in a Maruthi car along with his family members by driving the car himself and the accident was occurred due to the rash and negligent driving of offending lorry and therefore he cannot be considered as a driver by profession.

That on basis of the fact that the claimant was driving private car at the time of accident it cannot be said he is a driver by profession. In the absence of proof of income considering his age as 34 years, year of accident as 2007 and his profession as a coolie his income could easily be assessed at Rs. 4,000/- p.m. Nature of injuries suggest that he must have been under treatment and rest at least for four months. Therefore a sum Rs. 16,000/- is awarded towards loss of income during laid up period.

Considering nature of injuries, disability stated by the doctor and an amount of discomfort and unhappiness which the claimant has to undergo for the rest of his life, a sum of Rs. 25,000/- is awarded towards loss of amenities as against Rs. 10,000/- awarded by the Tribunal.

The doctor has stated claimant has suffered the claimant has suffered 60% to right lower limb so as to whole body it comes to 20% and disability of 15% to left upper limb and to whole body it comes to 4%. So, total whole body disability comes to 24% as against 10% assessed by the Tribunal. The multiplier applicable to the age group of the claimant is 16. Accordingly, loss of future income works out to Rs. 1,84,320/- (Rs. 4,000/- x 24% x 12 x 16) and it is awarded as against Rs. 54,000/- awarded by the Tribunal.

Considering the evidence of the doctor Rs. 10,000/- awarded by the Tribunal towards future medical expenses is just and proper and it does not call for interference.

Thus the claimant is entitled for the following compensation:

Accordingly the appeal is allowed in part and the Judgment and award of the Tribunal is modified to the extent stated herein above. The claimant is entitled for additional compensation of Rs. 1,75,320/- with interest at 6% p.a. from the date of claim petition till the date of realization. The Insurance Company is directed to deposit the additional compensation amount with interest, within two months from the date of receipt of a copy of this judgment, from which 75% with proportionate interest is ordered to be deposited in FD in the name of the claimant in any nationalized/scheduled Bank or post office for a period of six years, with a right of option to withdraw interest periodically and the remaining amount is ordered to be released in his favour. The Tribunal while releasing 25% of the compensation is also directed to issue F.D. slip to the claimant to enable him to withdraw the amount on its maturity without approaching the Tribunal once again. The concerned bank is also directed to release the F.D. amount on its maturity without insisting any order from the Tribunal.

No order as to costs.