Ravi Shankar Agarwal vs Shaik Shah Vali

Mohan M. Shantana Goudar, J.—This appeal is filed by the claimant praying for enhancement of compensation. In the accident that occurred on 8.7.2004, the claimant suffered following injuries:

(1) "Head injury

(2) Upper brachial plexus injury

(3) Fracture shaft femur right side

(4) Fracture tibial condyle left side

(5) Comminuted fracture right tibia and fibula proximal 1/3rd.

(6) Right acromio clavicular joint fracture dislocation.

(7) Contusion of right lung

(8) Moderate sensori neural hearing loss bilateral.

(9) Right monteggia fracture dislocation with radial head fracture.

(10) Shattered lower and upper teeth and loosening of other teeth.

(11) Lacerated wound 3/1 complaint over the right leg, 1/1 complaint over the nose, 6/3 cm over the forehead."

Initially, the claimant was admitted to VIMS Hospital, Bellary and thereafter he was shifted to Manipal Hospital, Bangalore for better and higher treatment. He was in the Hospital for about 32 days as in-patient. He underwent six operations in the Hospitals. The surgeries undergone and the treatment given to the claimant as per Ex.P-37 are as under:

"(1) Interlocking nailing right femur on 13.7.04.

(2) ORIF with DCP plating of right ulna with excision of radial head done under GA on 23.7.04.

(3) ORIF with cancellous screw fixation of left tibial condyle done under GA on 23.7.04.

(4) ORIF with double buttress plating + bone grafting right tibia done under GA on 23.7.04.

(5) Digital hearing aids for both the ears.

(6) Implants for ceramic tooth fixation."

The Doctor PW4 examined the claimant once again on 12.8.2006 and seen his condition and he has issued the certificate as under:

"(1) Instabity in the left knee and genu recurvatum deformity.

(2) Loss of knee flexion on right side.

(3) Complete (100%) loss of pronation and supination of forearm.

(4) complete wasting of right shoulder muscles.

(5) Decreased sensation over the deltoid region right side.

(6) Loss of active abduction beyond 20 deg."

Because of the aforementioned complaints, the doctor has opined as under:

"(1) Unable to use his right hand to eat food.

(2) Difficulty in standing and walking independently.

(3) He has to use knee brace, wheel chair and crutches.

(4) His activities of daily living are severely affected.

(5) He is unable to carry out his previous occupation as Structural Engineer."

This is a case of permanent physical disability. The doctors PWs.2 to 4, who treated the claimant in the Manipal Hospital have deposed before the Court supporting the case of the claimant. According to the version of the doctors, the claimant has suffered 90% disability to the whole body. Though the Tribunal has correctly concluded that there is nothing on record to doubt the versions of the doctors, has erroneously scaled down the disability to 70% from 90%, as deposed by the doctors.

Having regard to the fact that the claimant has to use wheel chair throughout his life and has to depend on third party for day to day livelihood. Thus, it appears the claimant has been suffering 90% permanent physical disability. He cannot use his right forearm at all. There is complete wasting of right shoulder muscles. Sensation is decreased in the right side. He has to use knee brace, wheel chair and crutches throughout his life. Consequently, his daily activities are severely affected. He is unable to use his right hand to eat food and he is unable to do his previous occupation as Structural Engineer. He may not be able to consult his clients as was being done by him prior to the accident. Practically his life is ruined because of the accidental injuries.

The Tribunal, while quantifying compensation at Rs. 19,40,300/-, awarded only Rs. 25,000/- under the head ''loss of amenities'' and awarded a sum of Rs. 1,25,500/- under the head ''pain and sufferings'', which appears to be too meager in the facts and circumstances of the case. The claimant must have suffered lot of pain and agony. He has to suffer all though his life. He was just 41 years at the time of accident. He was a Structural Engineer by profession. He cannot enjoy either marital life or otherwise throughout. He will have to suffer both physically and mentally depending upon third parties. Hence, we propose to award Rs. 5,00,000/- under the head ''loss of amenities'', and a sum of Rs. 5,00,000/- under the head ''pain and sufferings. The records reveal that the claimant has suffered loss of 26 (Twenty-six) teeth. Virtually he is now teeth-less.

4.1 The Tribunal has correctly awarded in a sum of Rs. 6,00,781/-, which is rounded off to Rs. 6,00,000/- under the head Medical expenses, which needs no interference. However, the Tribunal has not awarded any compensation under future Medical expenses. He may have to spend some money towards Medical expenses even in future because of his serious disabilities. Since he is unable to work and do any type of physical exercise, he may have to suffer diseases like Diabetic, high Blood Pressure and etc., Therefore, he shall be awarded a sum of Rs. 3,00,000/- under the head future Medical expenses.

The Tribunal has quantified his annual income at Rs. 1,20,000/- per annum, taking three years average of the years 2001-02, 2002-03 and 2003-04. We have meticulously perused the records of the Tribunal. The income tax records are produced in support of the claimant''s case. The net income of the claimant from 1.4.2001 to 31.3.2002 is Rs. 98,000/- and his income from 1.4.2002 to 31.3.2003 is Rs. 1,38,920/-. Whereas, the income of the claimant from 1.4.2003 to 31.3.2004 is Rs. 2,32,251/-. His income for the next year i.e., 1.4.2004 to 31.3.2005 was Rs. 4,25,693/-. However, we abstain from considering the income tax returns from 1.4.2004 to 31.3.2005 in view of the fact that the accident has occurred in the month of August 2004. However, we have taken the average of three years income of the previous years i.e., from 1.4.2001 to 31.3.2004, which comes to about Rs. 1,56,000/- per year. Since, the claimant is virtually rendered jobless and he has to depend for everything including his day to day activities on the third parties, the ratio laid down by the Hon''ble Apex Court in the case of Sanjay Kumar Vs. Ashok Kumar and Another, , wherein, loss of future prospectus is added, is to be applied in this case. In the said decision, the Hon''ble Apex Court has held that the injured is entitled to 50% under the head ''loss of future prospects'' in such cases. However, in the said decision, the injured was a salaried person. In the matter on hand, the injured is a Structural Engineer having private practice. Hence, there will be usually fluctuation in the income, as rightly argued by Smt. Aruna Deshpande.

Having regard to the totality of the facts and circumstances of the case, it would be appropriate if 30% is added to the annual income of Rs. 1,56,000/- under the head ''loss of future prospects'', which comes to Rs. 46,800/-. Thus, his annual income would be Rs. 2,28,000/-. Since, we have assessed the disability at 90%, the income of the claimant would be Rs. 2,05,200/- per year. The appropriate multiplier to be adopted is ''14'' having regard to the age of the claimant. Thus, in all, the claimant is entitled to Rs. 28,73,000/- under the head ''loss of future prospects. In addition to the same, the claimant is entitled to Rs. 1,00,000/- under other incidental heads such as attendant charges, food and nourishment, loss of income during laid up period and etc., Thus, in all the claimant would be entitled to Rs. 48,73,000/-.

Accordingly, the appeal is allowed in part. The compensation is enhanced to Rs. 48,73,000/- from Rs. 19,40,300/-. The rate of interest, deposit and other terms as ordered by the Tribunal remains un-altered. Smt. Aruna Deshpande submits that the compensation amount awarded by the Tribunal with proportionate interest has already been paid. If it is so, the Insurance Company is liable to pay the rest of the compensation after deducting the amount already paid.