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Judgment
S.N. Satyanarayana, J.—Claimant in MVC No. 1003/2007 on the file of the Additional Civil Judge (Sr.Dn.) and MACT, Udupi has come up in this appeal seeking enhancement of compensation awarded by the Tribunal by its judgment dated 30.06,2009.
Brief facts leading to this appeal are as under:
The case of Appellant is that on 28.05.2007 she was travelling in a Maxi Cab bearing No. KA-20/5127 from her village to Udupi. On the way to Udupi the said Maxi Gab met with an accident near Muloor village on Mangalore-Udupi National Highway due to rash and negligent driving of the bus bearing No. KA-19/D-3953. In the said accident, Appellant suffered comminuted fracture of distal end of radius left, comminuted fracture of acetabulum left and also dislocation of left hip. Subsequently, she filed claim petition along with the other injured in the said accident on the file of MACT, Udupi.
The MACT, Udupi clubbed all the claim petitions together and proceeded to record evidence in all the claim petitions together and disposed of by a common judgment dated 30.06.2009. In the said proceedings so far as the issues framed with reference to the injuries suffered by the claimant, claimant adduced evidence and she produced documents which are marked as Exs.P21 to P27 in support of injuries suffered by her and also the treatment that was provided to her for the said injuries. In the said proceedings the police documents were marked as Exs.P1 to P4, which are common for all the claim petitions. In the said proceedings in addition to the evidence recorded on behalf of claimant as PW6, the doctor who treated her while she wan in hospital namely Dr. Umesh Prabhu was examined.
The Tribunal on appreciation of the pleadings oral and documentary evidence available on record has proceeded to award compensation in a sum of Rs. 1,13,705/- payable with interest at the rate of 6% p.a., from the date of petition till date of deposit of entire amount and the said compensation is awarded in the following manner.
Pain and suffering Rs. 30,000.00
Medical Expenses Rs. 48,705.00
Future medical
Expenses Rs. 15,000.00
Nutritious food and
Conveyance Rs. 5,000.00
Loss of income during
Laid up period Rs. 15.000.00
TOTAL Rs. 1,13,705.00
The claimant being aggrieved by the quantum of compensation awarded has come up in this appeal contending that the claimant who was aged about 29 years at the time of accident has suffered two major fractures and in addition to that she has also suffered dislocation of hip joint which would render 100% loss of earning capacity to the claimant as she was doing the work of tailor at the relevant time of accident and that she was married immediately prior to the accident and the accident which is resulted in dislocation of her hip joint has rendered her totally immobile, so far as her movement and also her normal day today life including her marital life. It is also contended that because of total disability that she has suffered she is not in a position to continue the avocation of tailoring which she was doing prior to the date of accident and as such there is total loss of earning capacity to an extent of 100%. It is not taken into consideration by the Tribunal at the time of awarding compensation. It is also contended that the Tribunal has not taken into consideration the loss of marital pleasure that she has suffered due to dislocation of hip joint for which no compensation is awarded. It is further contended that the Tribunal has not taken into consideration the long duration of hospitalisation of 66 days for which conveyance charges, nourishment, food and expenses, therefore the compensation awarded is required to be reassessed in this appeal.
After hearing the counsel for Appellant and the contesting Respondent-Insurance Company and after going through the lower Court records, it is seen that there is indeed an error on the part of Tribunal in assessing compensation to be awarded to the claimant. Considering the fact that claimant has suffered two major fractures and also dislocation of hip joint the compensation awarded in a sum of Rs. 30,000/- under the head of pain and sufferings is on lover side and the same is required to be reassessed. Taking into account the aforesaid injuries the claimant would be entitled to compensation under the head pain and sufferings in total sum of Rs. 50,000/- as against Rs. 30,000/- awarded by the Tribunal.
So far as the compensation awarded under the head nourishment, food and conveyance charges during the period when claimant was confined to bed, the sum awarded at Rs. 5.000/- is meager. The fact remains that claimant is resident of Uchila village situated within Udupi taluk, whereas she was inpatient for 66 days in Hi-Tech Medicare Hospital and Research Centre which is situated in Ambalwadi village of Udupi Taluk. According to claimant, the same is situated at a distance of about 10 to 12 Kms and that considerable amount is spent on transportation and also towards attendant who looked after claimant for 66 days. If all these is taken into consideration a sum of Rs. 5,000/- awarded under the head conveyance and nutritious food is on the lower side and the same is required to be enhanced from Rs. 5,000/- to Rs. 20,000/-.
Further, it is seen that for awarding compensation towards pain and sufferings and other things the Tribunal has not taken into consideration the loss of marital life to the claimant, due to dislocation of hip joint which rendered her permanently disabled for life. The claimant ought to have awarded certain amount of compensation towards loss of amenities in life which is required to be awarded in this instant case in a sum of Rs. 30,000/-
In addition to this, claimant also should have awarded loss of future earning. The evidence available on record in the form of oral evidence of P.W. 16, which is supported by Ex.P-26 the disability certificate and Ex.P-25 treatment certificate clearly discloses that claimant has suffered functional disability to an extent of 36% to left hand. Considering the fact that claimant was tailor at the relevant time of accident and with this kind of disability it may not be possible for her to pursue the profession of tailoring by using manual tailoring machine for which her disability would come in the way. However, it does not prevent her from doing the work of tailoring using electrical tailoring machine, which does not require the use of her leg to peddle the machine to do the tailoring work. However, the functional disability which she has suffered at 36% would definitely come in the way of her loss of earning capacity so far as discharging her day-today work, which can be safely taken at 30%. To assess the same if the income of claimant is taken at Rs. 3,000/- the loss of earning capacity that she would be entitled to works out as under:
Rs. 3,000/- � 30% = Rs. 900/- � 12 � 17 = Rs. 1,83,600/-
Accordingly, the appeal is allowed. The claimant would be entitled to compensation in a sum of Rs. 2,48,600/- in addition to the compensation of Rs. 1,13,705/- awarded by the Tribunal. The claimant is entitled to the additional compensation of Rs. 2,48,600/- payable with interest at the rate of 6% p.a., from the date of petition till the date of deposit of entire additional compensation amount. On deposit of such additional compensation amount a sum of Rs. 2,40,000/- is required to be deposited in any nationalised bank for a period of five years with right to the claimant to receive interest periodically and the balance Rs. 8,600/- with interest shall be released in favour of the claimant.