Sameer Ahamad vs Francis Fernandese

Hon''ble Dr. Justice K. Bhakthavatsala

Learned counsel for the appellant submits that though the claimant sustained grievous injuries and treated in Manipal Hospital, on several occasions, the Tribunal has not awarded adequate compensation and he prays for enhancement of compensation.

Learned counsel for the Insurance Company submits that there is no good ground for enhancement of compensation.

Perused the L.C.R.

It is the case of the claimant that he was 23 years old, earning Rs. 5,000/- p.m., as a Tailor for Leo Consumer Products Private Limited and he sustained grievous injuries in the motor accident that occurred on 26.05.2005. He filed a claim petition against owner of the autorickshaw bearing Registration No. KA-20/A-1114 and insurer claiming compensation of Rs. 10,00,000/-. The Insurance Company filed a claim petition against owner of the autorickshaw bearing Registration No. KA-20/A-1114 and insurer claiming compensation of Rs. 10,00,000.00. The insurance Company filed written statement denying the averments of the claim petition In support of the case of the claimant, he got himself examined as R.W. 1 besides examining Dr. Kiran K. Acharya as P.W.2 and got marked Exs. P. 1 to P. 8. The respondents have not adduced rebuttal evidence. The copy of Insurance Policy was marked as Ex. R.1 and medical reports and x-ray were marked as Exs. C.1 and C.2. The Tribunal answered Issue No. 1 on the point of negligence in favour of the claimant and against the driver of the autorickshaw and awarded compensation in all amounting to Rs. 2,33,615/-.

The Tribunal has awarded compensation in favour of the claimant as under:

(In Rs. )

i) Pain and suffering

40,000-00

ii) Medical expenses

1,35,615-00

iii) Future medical expenses

15,000-00

iv) Attendant charges

5,000-00

v) Conveyance and special diet

8,000-00

vi) Loss of amenities

30,000-00

Total

2,33,615-00

The Tribunal has not awarded compensation towards loss of earning during the period of treatment. As per Ex. P. 7/Disability Certificate and evidence of P.W. 2, the claimant has got 50% disablement with reference to right lower limb. But the Tribunal has not awarded compensation towards loss of future earning. Ex. P. 8 is the salary certificate issued by Manager of Leo Consumer Products Private Limited, Mangalore. It is certified that the claimant was working as a Curtain Maker and drawing salary of Rs. 5,000/- p.m. There is another certificate issued by the Manager of the said private company, certifying that the claimant was on leave since 23rd May 2005 on account of accident. But the certificate dated 29.11.2006 has not been marked. The claimant has not produced any other document in support of Ex. P. 8 to show that he was working for the said private company and earning Rs. 5,000/- p.m. Taking into consideration that the accident occurred in the year 2005 and he is a resident of Udupi Taluk and District, even if he had worked as a Coolie, he could have earned Rs. 3,750/- p.m Taking into consideration that the claimant has got permanent disablement to the extent of 40% with reference to right lower limb, permanent disablement can be safely fixed at 10% to the whole body. As per the medical bills, it is crystal clear that the claimant was admitted to Manipal Hospital on seven occasions. In other words, it can be said that the claimant has taken treatment from the date of accident till 06.09.2006, i.e., for one year 3 months 10 days. The claimant has produced medical bills in all amounting to Rs. 1,35,615-52. The Tribunal has awarded the same. As per Ex. P. 4/Wound Certificate, the claimant sustained two grievous injuires, viz., Type III(B) open comminuted supracondylar fracture right femur and Type II open comminuted fracture shaft tibia right. As per Ex. P. 6, on 27.05.2005, wound debridement under anesthesia was done. On 01.06.2005, bone reduction and internal fixation of fracture of right femur and right tibia was done. As per Ex. P. 7/Disability Certificate issued by doctor/P.W. 2, there is shortening of right lower limb by 2.5 cm., posttraumatic wasting of quadriceps femoris muscle Grade III power, posttraumatic stiffness of right knee with range of motion 5 to 40 degrees and postraumatic secondary degerative arthritis of right knee joint. P.W. 2 has stated that claimant is unable to sit in cross-legged position and he would have difficulty in normal walking and needs to use a walking aid. The medical reports as maintained in Manipal Hopsital, Mangalore, pertaining to the claimant, have been marked as Ex. C. 1. The age of the claimant is mentioned as 25 years and he fails within the age-group of 21-25 and multiplier 18 is applicable.

In my view, the claimant is entitled for compensation as under:

(In Rs. )

i) Pain and suffering

60,000-00

ii) Medical expenses

1,35,615-00

iii) Future medical expenses

15,000-00

iv) Attendant, conveyance, special diet and incidental expenses for a period of 1 � years

30,000-00

v) Loss of earning ( Rs. 3.750/-x 16)

60,000-00

v) Loss of earning during the period of treatment and rest ( Rs. 3,750/- x 12 x 18)

76,500-00

vi) Loss of amenities

50,000-00

Total

4,27,115-00

LESS: Compensation awarded by the Tribunal

2,33,615-00

Balance

1,93,500-00

In the result, the appeal is partly allowed, holding that the appellant/claimant is entitled for additional compensation of Rs. 1,93,500/- along with costs and interest at the rate of 6% p.a., from the date of petition till realization. Accordingly, the impugned Judgment and Award are modified. Out of the enhanced compensation amount (along with costs and interest), 75% shall be kept in fixed deposit in any nationalised bank for a period of 5 years.

Respondent No. 2/Insurance Company is directed to deposit the additional compensation amount along with costs and interest with the Tribunal within three months from today.