Sri. Lakhan Malik @ Lakshman Malik vs The Oriental Insurance co., Ltd. and Mr. Laaser

A.S. Pachhapure

The appellant dissatisfied with the amount of compensation awarded by the Tribunal for the injuries sustained in a motor vehicle accident, has filed this appeal seeking enhancement. Brief facts are that on 03.12.2008 at about 6.00 p.m., when the appellant was proceeding on the left side of the road on N.H.4, Bangalore Kolar Road, the rider of the Motor Cycle bearing registration No. KA-04/ER-6259 came from back side riding the Motor Cycle in a rash and negligent manner and hit against the appellant, as a result the appellant sustained grievous injuries and took treatment in the hospital. He was a coolie earning Rs. 8,000/- and in the circumstances the appellant having sustained disability has claimed the compensation on all the heads.

The respondents appeared and contested the claim of the appellant. During the enquiry, the appellant was examined as P.W.1 and the doctor, P.W.2 and in their evidence the documents Exs.P-1 to P-10 are marked. The Tribunal after hearing the counsel for the parties and on appreciation of the materials on record, held actionable negligence on the part of the driver, the rider of the Motor Cycle and granted the compensation of Rs. 1,04,520/- with interest at 6%. Dissatisfied with the amount of compensation, the present appeal has been filed.

I have heard the learned counsel for the parties.

The point that arise for my consideration is:

Whether the appellant is entitled to enhanced compensation, if so to what extent?

It is not in dispute that the appellant suffered fracture of both bones of the left leg. The Tribunal has granted Rs. 25,000/- for pain and suffering. It is relevant to note the wound certificate at Ex.P-6 and apart from the fracture, he has suffered other injuries as well. So taking into consideration the nature of injuries, period of treatment, I think the appellant is entitled to addition sura of Rs. 15,000/- towards pain and suffering. The Tribunal has granted just compensation for loss of amenities and happiness at Rs. 15,000/-. Though the appellant has suffered two fractures and was in the hospital for a period of 28 days, the Tribunal has granted meager compensation of Rs. 3,000/- towards medical and incidental charges. This appears to be on the lower side. Therefore the appellant is entitled to additional sum of Rs. 7,000/- towards medical and incidental charges, as during the treatment surgery was done and implants were fixed.

So far as the assessment of income is concerned, it is relevant to note that the Tribunal has considered it at Rs. 3,000/- p.m. The appellant is a coolie by profession. The Apex Court even in respect of the accident of the year 2001 assessed the income at Rs. 100/- per day for a coolie. Since for the last few years, there is increase in the prices 01 essential commodities and also wages of the employees. In such circumstances. I am of the opinion that it is just and proper to consider the income at Rs. 3,750/-. The appellant has examined the doctor, P.W.2. who has in his evidence states that the appellant has suffered disability to an extent of 23% of the whole body. The Tribunal has considered the disability at 12%. The photographs were shown by the counsel for the appellant during the course of the arguments and taking into consideration the nature of fracture suffered and the present condition of the appellant, giving margin to the possibility of exaggeration of percentage of disability, it is just and proper to assess the disability at 20%. So considering the income at Rs. 3,750/- and the multiplier at 11 with disability at 20%, the net loss of future earnings due to disability is at Rs. 43,730/-. Furthermore the Tribunal has granted only a sum of Rs. 5,000/- for removal of the implants. For the purpose of removal, the appellant has to undergo surgery, he has to be inpatient in the hospital, he has to take treatment. Considering all these things, it would be just and proper to award an additional sum of Rs. 15,000/- thereby the appellant is entitled to Rs. 80,730/- in addition to the compensation awarded by the Tribunal with interest at 6%. Hence I answer the point for consideration in the affirmative and pass the following:

ORDER

The appeal is allowed in part. In addition to the compensation of Rs. 1,04,520/- with interest at 6%, awarded by the Tribunal, the appellant is entitled to additional sum of Rs. 80,730/- with interest at 6% from the date of petition till payment.

Out of the enhanced compensation, a sum of Rs. 30,000/- shall be deposited in a Nationalised Bank for a period of five years and the appellant is permitted to withdraw the amount in excess.