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Judgment
A.N. Venugopala Gowda
Claimant before the MACT, dissatisfied with the compensation awarded has filed this appeal seeking enhancement. Appellant, aged about 35 years, an agriculturist, who met with a road traffic accident and sustained grievous injuries, having suffered permanent disability to an extent of 60% and functional disability to an extent of 80%, on his left lower limb which was amputated below knee, filed the claim petition against respondents - owner and insurer at the offending vehicle. Before the MACT, claimant deposed as PW-1 and examined a medical practitioner as PW-2. Several documents were produced with regard to the nature of injury sustained, treatment obtained, medical and incidental expenses incurred, his avocation and resultant effect. Tribunal, accepting the case has passed the Award for Rs. 8,15,500/-with interest at 6% p.a. from the date of filing of claim petition till the date of deposit.
Respondents had filed MFA No. 2806/2010 questioning the said Judgment and Award. Said appeal having been considered and found to be devoid of merit, was rejected on 22.07.2010, at the stage or admission itself.
Sri Vinod Gowda, learned Advocate for the appellant contended that the injury sustained being grievous in nature, leading to amputation of left leg below knee, has virtually made the appellant, totally dependent and hence, Tribunal has committed error in the matter of assessment of loss and the compensation ordered to be paid is totally inadequate. Learned counsel submits that the just compensation has not been awarded under the relevant heads and hence, just compensation may be awarded.
Sri S.V. Hegde Mulkhand, learned Advocate for the respondent - Insurance Company, on the other hand, drew attention of the Court to the observation made in the Judgment dated 22.07.2010 passed in MFA No. 2806/2010 and submitted that there is just and reasonable compensation awarded by the MACT. Learned counsel submits that no ground is made out for enhancement of compensation and hence, the appeal may be dismissed.
In MFA No. 2806/2010, while rejecting the appeal at the stage of admission, before issue of notice to the claimant, it has been observed as follows:
Considering the facts and circumstances and the materials placed on record, the Tribunal has properly assessed the compensation which is not on the higher side. Hence at the admission stage itself, appeal is dismissed.
I have perused the record. In view of the rival contentions, point for consideration is, whether there is just and reasonable award by the MACT?
While fixing the amount of compensation payable to a victim of an accident, damages have to be assessed mainly under two heads viz., pecuniary damages and special damages, as has been held in the case of R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, .
In Reshma Kumari and Others Vs. Madan Mohan and Another, . the Apex Court has held that the compensation awarded under the Act should be just and has indicated the factors which should be kept in mind while determining the amount of compensation.
In Raj Kumar Vs. Ajay Kumar and Another, , the Apex Court held that a person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury and the compensation to be awarded in personal injury cases being under two distinct and separate heads viz., pecuniary damages (special damages) and non pecuniary damages (general damages).
Ex.P4 is the wound certificate. Exs.P7 & P10 are the laboratory report and X-ray respectively. Ex.P12 series relate to medical bills. Exs.P5 and P6 are the discharge summaries. Disability Certificate issued by the Hospital is at Ex.P14. There is no denial of the fact that on account of the fracture of left leg and crush injury, the left leg of the appellant was amputated below knee. The photographs of the appellant appear at Ex.P9, which clearly show that there is amputation of left leg below knee.
Appellant as on the date of accident was aged about 35 years and was an agriculturist, which involves manual labour. Loss of his leg below knee has made him to give up agricultural work or any other manual labour. Hence, the finding of the Tribunal with regard to physical permanent disability resulting in functional disability, has to be upheld, Ex.P11 is the Pan Card. Ex.P8 is the RTC extract. However, there is no credible evidence with regard to his earnings. Tribunal in the absence of credible evidence has taken the income at Rs. 3,750/- p.m. on notional basis and has assessed loss of future earnings.
The accident having taken place on 03.01.2008, claimant being an agriculturist and a resident of Teragalale Village, Konanoor Hobli, Arkalgodu Taluk, Hassan District, can be expected to earn not less than Rs. 4,250/- p.m. Doctor has assessed the permanent physical disability at 60%. Based on the evidence of PW-2, in view of the left lower limb having been amputated below knee, the appellant cannot perform any work relating to agriculture and hence, the functional disability has to be taken at 90%, as against 80% assessed by the MACT. On account of amputation of the left lower limb, there is not only loss of future earnings but appellant has been permanently disabled for life and suffers from the discomforts accompanying living without one leg.
MFA No. 2806/2010 having been rejected on 22.07.2010, without notice to the respondent therein, i.e., the appellant herein, the observation made therein, noticed supra, does not come in the way of the appellant -claimant seeking just compensation.
Appellant has to incur expenditure in future to have artificial limb replaced at regular intervals. There is certainly loss of normal pleasures of life and there is loss of amenities. Consequently, Tribunal has not assessed the loss in a just and fair manner. Keeping in view the record of the case and the finding of the MACT, and there being under-assessment of loss, the just and reasonable compensation which the respondents have to pay to the appellant is as follows:
Heads
Amount (in Rupees)
Pain and suffering
50,000/-
Medical expenses
19,500/-
Incidental expenses: Conveyance, attendant & nourished diet
25,000/-
Loss of future earnings: 3825 x 12 x 16
7,34,400/-
Future medical expenses including cost of artificial limb & loss of amenities of life
1,00,000/-
Total
9,28,900/-
In the result, the appeal is allowed in part. The impugned Judgment / Award is modified. Appellant is held entitled to total compensation of Rs. 9,28,900/- with interest at 6% p.a. from the date of filing of claim petition till the date of deposit, in the MACT.
Respondent - Insurance Company is granted two months'' time to deposit the balance compensation amount in the MACT. Out of the enhanced compensation and interest thereon, Rs. 1,25,000/- be invested in Fixed deposit for 5 years in a nationalised / schedule Bank and the balance amount paid to the claimant, who is entitled to draw periodical interest from the deposit.
No order as to costs.