Sharadhamma vs K. Manikam and Others

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

Heard, the appeal is admitted and with the consent of learned counsel appearing for parties, it is taken up for final disposal.

For the sake of convenience, the 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 28.5.2008 due to rash and negligent driving of the tanker lorry bearing registration No. TN-22-AJ-3796 by its driver and liability of the insurer of the offending vehicle, the only point that arises for my consideration in the appeal is:

"Whether quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"

After hearing the learned counsel appearing for 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 hence it is required to be enhanced.

As per wound certificate Ex. P-4, the claimant has sustained following injuries:--

"a) Lacerated injury to right little finger.

b) Fracture of left wrist joint with contusion injury.

c) Contusion injury to left ankle joint.

d) Injury to nose with bleeding."

As per X-ray report, claimant has sustained the following injuries:

"a) There was a fracture of lower 1/2 of radius. Lateral fracture of distal end of ulna.

b) Right wrist comminuted fracture of distal end of right radius."

PW4 Dr. Prasanna H.M. of Pristine hospital has stated in his evidence that he examined the claimant. Claimant was admitted to his hospital on 22.10.2009 and found the following injuries;

"a) Comminuted fracture distal radius - left.

b) Fracture lower 3rd radius - left.

c) Fracture left tibial condyle.

d) Fracture left medial malleolus."

He has further stated that claimant was operated at Aditya Orthopedic Centre.

"a. Open reduction, internal fixation with plate and screws for left radius.

b. Closed reduction, K wire fixation for right wrist.

c. Tibial condyle and medial malleolus fixation with screws."

On further examination he found the following deformities:

"a) Gross varus present at knee joint.

b) Knee range of movements is painful and restricted."

Claimant was diagnosed as a case of:

"a) Mal united Medial tibial condyle fracture tibia (left) with implants in situ.

b) United fracture medial malleoli (left) with implants in situ.

c) United fracture radius (left) with implants in situ."

He has stated that claimant has suffered disability of 49% to limb and 21% to the whole body.

Considering the nature of injuries sustained by the claimant, a sum of Rs. 75,000/- is awarded toward pain and sufferings as against Rs. 40,000/- awarded by the Tribunal.

As Rs. 1,08,879.74 paise awarded by the Tribunal towards ''medical expenses'' is based on the medical bills and prescription produced by the claimant, the same is just and proper and there is no scope for enhancement under this head.

The claimant was treated as inpatient for about one month on different occasions in different hospitals. Considering the same, Rs. 20,000/- is awarded towards incidental expenses such as conveyance, nourishment and attendant charges.

The claimant claims to have been earning Rs. 5,000/- per month by doing tailoring work. The same is not substantiated by adducing evidence. In the absence of proof of income, considering her age as 45 years, year of accident as 2008 and her avocation as daily wager, her income is assessed at Rs. 4,000/- per month. The nature of injuries suggest that she must have been under rest and treatment for a period of 8 months and therefore a sum of Rs. 32,000/- is awarded towards loss of income during laid up period''.

Considering the nature of injuries, disability stated by the doctor and an amount of discomfort and unhappiness the claimant has to undergo in his future life, a sum of Rs. 50,000/- awarded by the Tribunal towards loss of amenities is just and proper and it does not call for enhancement.

The claimant''s income is assessed at Rs. 4,000/- per month. Disability stated by the doctor to the whole body is 21%, multiplier applicable to her age group is ''14''. So, the loss of future income would come to Rs. 1,41,120/- (4,000 x 21/100 x 12 x 14) and it is awarded as against Rs. 30,000/- awarded by the Tribunal.

Regarding future medical expenses, learned counsel for the claimant submits that she is required to undergo knee joint replacement at the cost of Rs. 1,80,000/-.

As against this, learned counsel appearing for the insurer of offending vehicle submits that, so far claimant has not undergone any such replacement of knee joint and therefore, Rs. 30,000/- awarded by the Tribunal towards future medical expenses is just and proper. Considering the nature of injuries sustained by the claimant, justice would be met if a sum of Rs. 50,000/- is awarded towards future medical expenses as against Rs. 30,000/- awarded by the Tribunal.

Thus, the claimant is entitled for the following compensation:--

Accordingly, the appeal is allowed-in-part. The judgment and award passed by the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation of Rs. 2,30,120/- with interest at 6% p.a. from the date of claim petition till the date of realisation.

The Insurance Company is directed to deposit the additional compensation amount together with interest within two months from the date of receipt of a copy of this judgment. From which, 70% of the amount with proportionate interest is ordered to be invested in fixed deposit in the name of claimant in any Nationalised Bank/Scheduled Bank/Grameena Bank for a period of 3 years and with a right of option to withdraw interest periodically. Remaining 30% with proportionate interest is ordered to be released in favour of the claimant.

The Tribunal while releasing 30% of the amount is also directed to issue FD slip to the claimant so as to enable her to withdraw FD amount on it''s maturity without approaching the Tribunal once again, the Bank in which the amount is kept in FD is also directed to release FD amount on it''s maturity without insisting for further orders from the Tribunal.

No order as to costs.