Narayan P. Salyan vs M/s. Navayuga Engineering Co. Ltd., Vishakhapattanam, A.P.

Mohan M. Shantanagoudar, J.—The judgment and award dated 12-9-2012 passed by the Fast Track Court and Motor Accidents Claims Tribunal, Udupi in MVC No. 909/2011 is called in question in this appeal by the claimant, who has prayed for enhancement of compensation.

The records reveal that in the accident that occurred on 8-3-2011, the appellant herein sustained injuries on the left side of his face, left ear, forehead, upper and lower eye lids, nose including entire left side of the face and other parts of the body. He was ''ah inpatient in A.J. Hospital, Mangalore from 8-3-2011 to 18-3-2011. Thereafter, he has taken treatment in Sankara Eye Hospital, Shivamogga, for the purpose of treatment to his left eye.

The Tribunal has awarded the total compensation of Rs. 2,76,800/- in to with interest at the rate of 7% p.a. thereon under various heads.

We have perused the records and heard the learned Advocates in detail.

PW.1 is the claimant and PW.2 is the doctor, who treated the claimant in A.J. Hospital, Mangalore. PW.2 - Dr. Ullas Shetty, Assistant Professor and Medico-legal Consultant, A. J. Institute of Medical Sciences, Mangalore, has deposed that the claimant was admitted to A. J. Hospital, Mangalore, with a history of road traffic accident. On examination, he found the following injuries :

"Crushed laceration 15 c.m. x 12 c.m. bone deep, over left side of the face with avulsion of the tissue involving the forehead, temple, upper and lower eye lids, nose and cheek along with underline fracture of right nasal bone, nasal septum, left orbit, left zygomatic bone, Bilateral maxilla, bilateral pterygold plates and basi temporal bone, involving the external auditory canal and contusion 6 c.m. x 6 c.m. over dorsum of left foot."

The doctor has opined that injury No. 1 including 9 facial bones fractures are grievous in nature. He further deposed that the claimant�s fractured facial bones were treated with open surgery and fixation of implants under genera] anaesthesia was done and for avulsion injuries wound debridement, suturing, tarsorrhaphy also was done under general anaesthesia. The claimant was inpatient in the hospital from 8-3-2011 to 18-3-2011. At the time of discharge, the claimant�s left side face was put under plaster and he was advised for regular dressing and follow-up treatment. Again the claimant was admitted to the very hospital on 31-3-2011, wherein he was subjected to wound debridement and left eye lids tarsorrhaphy under general anaesthesia and he was discharged from the hospital on 6-4-2011 with advise of follow up treatment. Once again, he was admitted on 16-5-2011 in the very hospital and during the said period, his left side upper and lower eye lids ectropion release and wolf graft were done on the left eye lids under general anaesthesia and was discharged on 20-5-2011. In spite of prolonged treatment, the claimant did not recover from his left eye problem; the left side upper and lower eye lids were not opening. It is also deposed by PW.2 - doctor that the left eye was removed by surgery (Evisceration was done on 31-1-2012) at Sankara Eye Hospital, Shivamogga during the period of admission in the said hospital from 2-1-2012 to 4-1 -2012. The patient has taken follow up treatment in A. J. Hospital, Mangalore for more than 20 times in O.P.D. On 12-6-2012, once again PW.2 along with Dr. Ajay Kudwa, Professor and Opthalmologist and Dr. Sanath Bhandari, Plastic Surgeon examined the claimant in Out Patient Department and he was clinically examined and radiographs were taken. On examination, they found that there were ugly puckered marks on the left side of his face and the left eye lids were closed and left eye was removed and implants were in situ. According to the doctor, the claimant had 40% permanent visual disablement to the whole body due to removal of his left eye. The claimant has also suffered scalp disfiguration 2.5%, eye lids deformity and full thickness loss 10%, skin covered disfigurement 2.5%, middle and lower 3rd face aesthetic loss due to soft tissue skeletal damage 5%.

Based on these materials and due to facial bones fractures, the doctor has assessed 20% disability to the face of the claimant. The said evidence of the doctor-PW.2 has remained unchallenged before the Tribunal below. Except making the suggestion in the cross-examination that the claimant had taken treatment in Sankara Eye Hospital, Shivamogga for the eye treatment, no other suggestion is made. Consequently, it is clear that the respondents have virtually admitted the version of PW.2.

From the afore-mentioned medical records and the evidence of PW.2, it is clear that the claimant has not only suffered the removal of left eye ball but also other facial injuries which have disfigured his face. The claimant was aged about 61 years, at the time of accident. He was stated to be running small canteen on road side preparing omelets etc.

The Tribunal has awarded Rs. 20,000/- under the head of pain and suffering, which appears to be too less under the facts and circumstances of the case. Since the claimant has repeatedly undergone operations and the implants were used and as he has lost his left eye, he should be awarded Rs. 60,000/- under the head of pain and suffering and Rs. 60,000/- under the head of discomfort and loss of amenities, instead of Rs. 20,000/- as awarded by the Tribunal under these heads.

The Tribunal has produced medical bills worth about Rs. 1,89,243/-. The Tribunal strangely has awarded Rs. 1,50,000/- under the head of medical expenses without assigning valid reasons. Having regard to the material on record, the claimant shall be awarded Rs. 2,00,000/- under the head of medical expenses and Rs. 20,000/- under the head of future medical expenses, inasmuch as he has to undergo one more operation for removal of implants.

However, we find that the Tribunal is justified in awarding Rs. 9,000/- under head loss of earning during laid up period and Rs. 8,000/- under the head of conveyance and attendant charges.

The Tribunal has taken income of the claimant at Rs. 3,000/- p. m. as the basis for calculating future loss of income on account of disability. Though, we agree with the conclusion reached by the Tribunal that the claimant has suffered with the disability to the extent of 20% to the whole body, we disagree with the finding of the Tribunal with regard to the income of the claimant. In the absence of any concrete material to show exact income of the claimant, generally this Court takes Rs. 5,500/- to Rs. 6,500/- as income in respect of the accident that occurred in between 2010 to 2011. Thus, we prefer to take Rs. 6,000/- p.m. as the basis for loss of future income. If Rs. 6,000/- p.m. is the income taken as a basis, the claimant would be entitled to Rs. 1,29,600/- ( Rs. 6,000/- x 9 x 12/20) under the head of loss of future income on account of disability. While arriving at this figure, we have applied the multiplier as �9� as applied by the Tribunal below.

From the afore-mentioned facts and figures, the appellant is entitled to the total compensation of Rs. 4,86,600/- (Rupees Four Lakhs Eighty Six Thousand Six Hundred Only).

In view of the above, the appellant is entitled to the enhanced compensation of Rs. 2,09,800/- (Rupees Two Lakhs Nine Thousand Eight Hundred Only). The enhanced compensation of Rs. 2,09,800/- (Rupees Two Lakhs Nine Thousand Eight Hundred Only) shall carry interest at the rate of 7% per annum as awarded by the Tribunal from the date of petition till the date of realisation.

Appeal is allowed in part accordingly. The award of the Tribunal below is modified to the said extent.