Praveen vs A. Chinnasamy and Others

T.R. Ramachandran Nair, J.—This appeal is filed by the claimant - injured mainly aggrieved by the quantum of compensation granted by the Tribunal. The accident occurred on 16.3.2009 at about 9.30 p.m. while he was riding a motor cycle bearing Reg. No. KL-45/A 5282 through Kodakara - Pudukad NH 47 from north-south direction. When he reached near Kurumaly Temple, the offending vehicle, namely, lorry bearing Reg. No. KL-2/AC 6363 came from north-south direction and hit against the appellant''s motor cycle. He sustained very serious injuries in the accident and was admitted in the hospital. The Tribunal adjudicated the matter and found negligence on the part of the driver of lorry.

The appellant and two witnesses have been examined as P.Ws. 1 to 3 and Exts. A1 to A14 were marked.

As regards the monthly income of the appellant, there is gross dispute between the parties. What is claimed in the application is Rs. 12,000/- and he was employed in Apollo Tyres as Tyre Builder.

The Tribunal, in fixing of the compensation, accepted the monthly income only at Rs. 3,500/-. The claimant had produced Exts. A8 and A9 in this context which are heavily relied upon before this Court by the learned counsel for the appellant to contend for the position that he was getting Rs. 30,000/- as salary.

The certificate Ext. A8 is issued by the Associate Manager (HR) of the factory in which the appellant is working. He was examined as P.W. 3. Going by his evidence in chief examination, the appellant was granted leave pursuant to the accident. Exts. A8 and A9 have been issued to him and going by Ext. A8, the total loss of earnings for the period in question is Rs. 49,466.73 wherein, under the head "salary" the amount shown is Rs. 30,805.78. Even though learned counsel for the appellant submitted that the monthly salary will be Rs. 30,000/- and above, we cannot agree. The salary shown in Ext. A8 is the loss for the entire period of 93 days and it is not monthly salary. As far as the wage details are concerned, Ext. A9 certificate is there. Ext. A9 will show that in March, 2009 the basic salary is Rs. 1389.19, FDA - Rs. 353.23 and VDA - Rs. 3198.63. The total salary for the subsequent months, viz. April, May and June have been shown as Rs. 9,302.22, 9,707.13 and 6,855.38. Therefore, we will not be justified in adopting the claim of the appellant regarding monthly salary at Rs. 12,000/-. He was getting an average of Rs. 9,000/- and above under different components.

The Ortho Surgeon who has been treating the appellant, was examined as P.W. 2. According to him, the permanent whole body disability is 11.52% and he has issued the certificate at the request of the appellant.

We have gone through the certificate. He had sustained the following injuries:

"a) Head injury with fracture left temporal bone with pneumocephalus with right temporal contusion;

b) Fracture internal condyle right femur;

c) Lacerated wound right knee with patella Exposed;

d) Open 2nd toe right distal phalanx fracture;

e) Lacerations on the 2nd toe and 3rd toe right side; and

f) Lacerations on dorsum of left foot."

He was managed by wounds debridement, kwire fixation of 2nd toe. Going by the clinical and radiological examination, he is having the following defects:

"a) Mal united fibrous union on the distal phalanx of 2nd right toe;

b) Early post traumatic osteo arthritic changes in right knee

c) Tender adherent scar on the front of right Patella;

d) Limitation of flexion of right knee of 30% and extension of 5% due to soft tissue fibris and adhesions and resultant partial ankylosis of right knee;

e) Weakness of extension of right knee of 20% and flexion of 10% due to injury to musculo tendinous units with postero lateral instability;

f) Limitation of extension of right 2nd toe of 60% and flexion of 60% due to soft tissue fibris and adhesions and resultant partial ankylosis of the 2nd right MTP and 2nd IP joints;

g) Weakness of extension of right 2nd toe at MTP joint of 40% and flexion of 40% due to injury to musculo tendinous fracture."

The effect of the disability on his normal avocations is described below:

"Functionally he has got difficulty to squat, to climb up and down, to run, to jump, to press, to pedal, to kick with right leg, to stand on right tiptoe, to stand on right leg for long, to walk fast, to kneel, to lift heavy weight with right knee." We also record below the assessment of disability:

"a) Right lower limb

i) Mobility a) Right knee ROM 9.0% strength : 6%

TOTAL : 6 + (5 x 84/40) 26 + 4.67 = 10.67

b) Right foot ROM : 1% strength 1%

TOTAL : 1 + 0.99 = 1.99

ii) Stability right lower limb : 10%

Total for Right Lower Limb = 12.42 + (10 x 77.98/90)

iii) Extra: Scar Malunion = 12.42 x 8.62 = 21.04%

= 2%

He is assessed to have a permanent disability for whole body as per National guidelines as 11.52%."

The above will show that there is mal united fibrous union on the distal phalanx of 2nd right toe, there is limitation of flexion of right knee of 30% and extension of 5% due to soft tissue fibris and adhesions and resultant partial ankylosis of right knee. Item (g) is also noticeable. Therefore, he is having difficulty to squat, to climb up and down, to run, to jump, etc.

Even though learned counsel for the appellant submitted that there is functional disability for performing his work as tyre builder the same is not evident from the certificate and the evidence of P.W. 2, Doctor. Therefore, it is not a case where he is having loss of earning power and there is no case that his job as tyre builder has been affected or there is reduction in monthly salary. Therefore, we will have to assess the permanent disability as such by taking the percentage of disability assessed by the Doctor. Herein, the Tribunal has accepted the disability at 5% reckoning it as functional disability. We cannot agree.

Since the amount of salary appears to be varying from month to month, for the purpose of assessing permanent disability, we will be justified in taking a sum of Rs. 7,500/- as monthly salary. As far as partial loss of earnings is concerned, a sum of Rs. 48,000/- has been claimed which is justified by Ext. A8 certificate which reports that his loss of earnings will be Rs. 49,4766.73. Therefore, we grant an amount of Rs. 49,000/- towards partial loss of earnings.

The following table gives the details under which the Tribunal has awarded various amounts:

The Tribunal has not granted any amount towards bystander''s expenses. The period of inpatient treatment is 13 days and we grant an amount of Rs. 3,250/- towards bystander''s expenses, reckoning Rs. 250/- per day. Going by the decision in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, , the correct multiplier should have been 17 and we adopt the same. Therefore, under the head of permanent disability, the appellant will be entitled to a sum of Rs. 1,76,256/- (7500 x 12 x 17 x 11.52/100). It is clear that the disability will affect his enjoyment and amenities in life. The certificate gives the details of hardship he may have to suffer in following his normal avocations in life. Therefore, as far as loss of amenities and enjoyment in life is concerned, we find that the appellant will be entitled for a reasonable amount and we fix the same at Rs. 50,000/-. For pain and suffering also, the Tribunal granted only a sum of Rs. 15,000/- which we enhance to Rs. 30,000/- since he was treated as inpatient for a period of 13 days. Therefore, the total compensation will be as follows:

(Rupees Three lakhs eleven thousand five hundred and six only).

The enhanced amount of compensation will carry interest at 9% from the date of petition. We direct the appellant to remit the balance court fee before the Tribunal. There will be a direction to the insurance company to deposit the entire amount of compensation less the amount already deposited before the Tribunal and the amount will be disbursed to the appellant after recovering the balance court fee.

The appeal is allowed as above. No costs.