2. Sri Basavaraj R Math, learned counsel for appellant
compensation. It was submitted that on 05.06.2018, when
manner and dashed against claimant, causing accident. Due to
same, claimant sustained multiple fractures and injuries i.e.
fracture of both bones of both legs. Despite taking treatment at
physical disability and consequent loss of earning capacity.
against insurer and owner of car.
3. On contest, owner was placed ex-parte. Only
petition averments, alleging violation of policy conditions etc.
Tribunal framed issues and recorded evidence. Claimant
got marked Ex.P-1 to P-14. Respondents did not lead any
4. On consideration, tribunal held that accident had
5. Dissatisfied with same, claimant was in appeal.
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6. It was firstly submitted that claimant was 45 years
of age, working as driver and earning Rs.15,000/- per month
with Rs.200/- as daily bhatta. However, tribunal considered his
monthly income at Rs.8,000/-, which was inadequate. It was
nextly submitted that though he sustained fractures of both
bones of both legs and also fracture of femur of left leg,
tribunal awarded meager sum of Rs.30,000/- towards pain and
suffering. It was submitted that he was inpatient for 75 days
and tribunal awarded meager sum of Rs.15,000/- towards
attendant and other incidental expenses. No compensation was
awarded towards loss of amenities and only Rs.10,000/- was
awarded towards future medical expenses, which were grossly
inadequate and sought for enhancement. It was lastly
submitted that PW-2, doctor, who had examined claimant had
assessed permanent physical disability at 65%, tribunal
considered functional disability at only 25% and awarded
inadequate compensation and it also failed to add future
prospects to monthly income. Based on above, he sought for
allowing appeal.
7. On other hand, Sri Subash Mallapur, learned
counsel for insurer opposed appeal. It was submitted, tribunal
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had assessed compensation after due appreciation of entire
material on record while awarding compensation under each
head separately, leaving no scope for enhancement. It was
further submitted that there were disparities between discharge
summary issued by Mallareddy Hospital, Hyderabad and
records of Kamareddy Hospital, Kalaburagi, namely non-
mentioning of injuries/treatment to left leg is concerned. On
said ground, he submits that award did not call for interference.
8. Heard learned counsel and perused impugned
judgment and award and records.
9. From above, since only claimant is in appeal
seeking enhancement, while insurer has accepted liability, only
point that would arise for consideration is :
"Whether claimant is entitled for enhancement of
compensation as sought for?"
10. Insofar as, monthly income is concerned, indeed
claimant has stated that he was working as driver and earning
Rs.15,000/- p.m. with Rs.200/- per day as bhatta. But, to
substantiate same, no specific material evidence was led. To
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substantiate occupation, he sought to rely upon Ex.P-13 i.e.
driving licence. Accident occurred in year 2018 and in absence
of specific evidence, tribunal assessed income notionally at
Rs.8,000/-, while notional income for year 2018 is Rs.11,750/-.
But, Ex.P-13 indicates that claimant was holding driving license
to drive LMV with transport endorsement with PSV badge.
Therefore, assessment of income on notional terms would not
be appropriate. It would be appropriate to consider monthly
income of claimant at Rs.20,000/-. As per, disability certificate
at Ex.P-11, PW-2 assessed permanent physical disability at
65%, accounting for same by apportionment in respect of
restricted moments of each limb, tribunal assessed functional
disability at 25%, merely by saying that disability assessed by
doctor cannot be taken into consideration. Same does not
appear appropriate. Hon'ble Supreme Court in case of
Rajkumar v. Ajaykumar and Another1 has stated that
functional disability has to considered taking note of physical
disability and its effect on profession of injured. With grade 3
fractures sustained on both bones of both legs and fracture to
femur on one leg, it would not be hard for this Court to
(2011) 2 SCC 343
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presume that with disability caused, driving would be difficult.
Taking note of possibility of alternative avocation, it would be
appropriate to consider functional disability at 50%. As per
decision of Hon'ble Supreme Court in case of Mohd. Sabeer @
Shabir Hussain v. Regional Manager, U.P. State Road
Transport Corporation2 even in case of personal injuries,
claimant would be entitled for addition of future prospects to
monthly income. Taking note of fact that claimant was aged 45
years and self employed, 25% has to be added to his monthly
income. Thus, computation of loss of earning would be as
follows:
(Rs.20,000 + 25%) x 50% x 12 x 14 = Rs.21,00,000/-
11. Tribunal has awarded Rs.1,48,992/- towards
medical expenses against medical bills produced. Since, there is
complete reimbursement, there is no scope for enhancement.
Claimant has sustained Grade III fractures on both bones of
both legs as well as femur of left leg. Since, he has sustained
three major fractures, award of Rs.30,000/- towards pain and
suffering would be grossly inadequate. It is found appropriate
(2022) 18 SCR 427
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to enhance it to Rs.75,000/-. Considering inpatient treatment
period of 75 days, award of Rs.15,000/- towards attendant and
other incidental expenses would be grossly inadequate. It
would be appropriate to enhance it to Rs.50,000/-. Tribunal has
not awarded any compensation towards loss of amenities,
taking note of nature of disability sustained, it would be
appropriate to award Rs.1,00,000/- towards same. Since, there
are implants in situ, claimant would require amount for their
removal. Award of only Rs.10,000/-, would be inadequate and
is enhanced to Rs.30,000/-. Tribunal has not awarded any
compensation towards loss of income during laid up period.
Considering, duration of treatment and nature of injuries
sustained, it would be appropriate to consider 4 months as
period of lay off. Thus, he would be entitled for Rs.80,000/-
towards same. Thus, total compensation works out to
Rs.25,83,992/-, as follows:
1 Pain and suffering Rs.75,000-00
2 Medical Expenses, Rs.1,48,992-00
3 Attendant, Conveyance Rs.50,000-00
charges & Nutrition of food
etc
4 Future medical expenses Rs.30,000-00
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5 Loss of future income Rs.21,00,000-00
6 Loss of amenities Rs.1,00,000-00
7 Loss of income during lay Rs.80,000-00
off period
Total Compensation Rs.25,83,992-00
12. Consequently, following:
ORDER
i. Appeal is allowed, judgment and award dated
05.02.2022 passed by Senior Civil Judge and
Member MACT, Humnabad in MVC no.402/2018 is
modified.
ii. Claimant is entitled for compensation of
Rs.25,83,992/-. Respondent no.2-insurer is
directed to deposit same before tribunal with
interest at 6% from date of petition, till payment.
iii. Conditions in award about deposit and release
would also apply to enhanced compensation
proportionately.
Sd/-
(RAVI V HOSMANI)
JUDGE
NJ
