Narasimha Murthy vs The Oriental Insurance Co. Ltd. and Others

B. Sreenivas Gowda, J.—This appeal is by the claimant seeking for enhancement of compensation awarded by the Tribunal.

Heard. The appeal is admitted and 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 certain injuries sustained by the claimant in a road traffic accident occurred on 20.03.2007 due to rash and negligent driving of Ford Ikon Car bearing Regn. No. KA-02/MC-441 by its driver and liability of the insurer of the said vehicle, the only point that remains for my consideration in the appeal is:

"Whether the quantum of compensation of Rs. 8,60,000/- awarded by the Tribunal with interest at 6% p.a. is just and proper or does it call for enhancement?"

After hearing the learned Counsel for the parties and perusing the judgment and award of the Tribunal, I am of the view that the compensation awarded by the Tribunal is not just and reasonable, it is on the lower side and therefore it is required to be enhanced.

As per Ex. P6 - wound certificate, the claimant had sustained multiple fracture to left leg and his left leg below knee came to be amputed. The injuries sustained and treatment taken by the claimant are also evident from Ex. P7, P8, P20 (three discharge summaries), Ex. P10 and P23 (Four X-rays), Ex. P21, P22 (two inpatient reports) and corroborated by oral evidence of claimants and two Doctors who are examined as PWs 1, 2 and 3 respectively.

PW-2 - Dr. Murthunjaya T.B. of Harsha Hospital has produced the Medical records relating to the treatment provided to the claimant. PW-3 who is an Orthopedic Surgeon from CITI Hospital has stated that the claimant has suffered disability of 70% to the particular limb and 23% to the whole body.

Considering the amputation of left leg below the knee and other injuries sustained by the claimant, a sum of Rs. 1,25,000/- is awarded towards pain and suffering as against Rs. 50,000/- awarded by the Tribunal.

Learned Counsel for the claimant submits that the claimant has spent a sum of Rs. 9,74,837/- towards medical and hospital expenses and has produced medical bills to that effect. As seen from para 15 of the judgment and award, the bill showing Rs. 1,63,400/- is with regard to Proforma Invoice and it is not a medical bills. The Tribunal after carefully scrutinizing the medical bills has found that the claimant has spent Rs. 6,87,130/- towards medical and hospital expenses and has awarded a sum of Rs. 7,00,000/- towards medical expenses. Therefore, there is no scope for enhancement by this Court under the said head.

The claimant was treated as inpatient for a period of 50 days. Considering the duration of treatment as inpatient, a sum of Rs. 30,000/- is awarded by the Tribunal towards incidental expenses such as conveyance, nourishment is just and proper and there is no scope for enhancement by this Court under this head.

The claimant claims to have been earning a sum of Rs. 10,000/- per month by doing agriculture and brick business. In support of his earning, he examined himself as PW-1 and has produced Record of Rights at Ex. P9, R.C. at Ex. P14, Loan Statement at Ex. P15, Pass Book at Ex. P16, Insurance Policy at Ex. P17. The record of rights produced at Ex. P9 would show that 10 acres of land standing in the name of his father. R.C. produced at Ex. P14 would shows that canter vehicle is standing in his name, loan statement and pass book produced at Ex. P15 and P16 respectively would show that he has availed loan for the purpose of purchasing canter and has been making repayment. The Insurance Policy would show that he has got the canter insured. The Tribunal based on the answer given by the claimant in his cross-examination that even after sustaining injuries sustained in the accident he has been repaying the loan availed for purchasing the canter has come to a conclusion that there is no loss of future income, which approach of the Tribunal is not sound and proper. The claimant after sustaining amputation of left leg below knee cannot be said that he can continue to do his agricultural work and brick business with the same capacity which he was doing prior to the accident and earning the same amount. Of course, the claimant has not produced the Income Tax returns for the period prior to the accident and subsequent to the accident. Therefore, considering the age of the claimant as 32 years, year of accident as 2007 and avocation as agriculturist and brick business, loss of future income per month could be taken at Rs. 4,500/- per month. The Doctor though has stated that the claimant has suffered disability of 70% to limb and has stated the disability to whole body as 23% which is lesser than the disability mentioned in Part-II of Schedule I of Employees'' Compensation Act, wherein for amputation of lower limb below knee is mentioned as 50%. The multiplier applicable to his age is 16. If it is so, loss of future income would work out to Rs. 4,500 x 50/100 x 12 x 16 = Rs. 4,32,000/- and it is awarded.

The nature of injuries suggest that he must have been under treatment and rest for a period of six months. Therefore, a sum of Rs. 27,000/- is awarded towards loss of income during the laid up period since the Tribunal has already awarded Rs. 30,000/- under this head, there is no scope for enhancement.

Considering an amount of discomfort, unhappiness that the claimant has to undergo in future life on account of amputation of his left leg below knee a sum of Rs. 1,00,000/- is awarded towards loss of amenities.

A sum of Rs. 50,000/- is awarded towards cost of artificial limb and its replacement from time to time.

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 an additional compensation of Rs. 6,07,000/- with interest at 6% p.a. on the enhanced compensation from the date of claim petition till the date of realization excluding the interest for the delayed period of 236 days.

The Insurance Company is directed to deposit the enhanced compensation amount with interest within two months from the date of receipt of a copy of this judgment excluding the interest for the delayed period.

From the additional compensation, 75% with proportionate interest is ordered to be invested in F.D. in any nationalized/scheduled Bank/Grameena Bank in the name of the claimant for a period of 10 years and the with a right of option to withdraw the interest periodically. The remaining 25% of the additional compensation amount is ordered to be released in his favour.

The Tribunal while releasing 25% of the amount is also directed to issue FD slip to the claimant so that he can withdraw FD amount without approaching the Tribunal once again and the Bank in which FD will be kept is also directed to release FD amount on its maturity without insisting further order from the Tribunal.

No order as to costs.