Narsingh Lal Shah Vs. Kamal and ors. - Court Judgment

N.K. Mody, J.

1. Being aggrieved by the inadequacy of the amount awarded vide award dated 24.7_2002 passed by the 5th M.A.C.T. (Fast Track), Ratlam in Claim Case No. 54 of 2001 whereby a sum of Rs. 50,000 has been awarded along with interest at the rate of 9 per cent per annum, the present appeal has been filed.

2. learned Counsel for the appellant submits that break up of Rs. 50,000 is as under:

Towards medical expenses Rs. 25,000Towards special diet,Transport and conveyance Rs 15,000 Towards pain and suffering Rs. 10,000

3. It is submitted that appellant was aged 68 years at the time of accident. He was contractor and agriculturalist. He was earning Rs. 70,000 to Rs. 80,000 per year. On account of accident the appellant was hospitalized in various hospitals at Baroda, Alot and Jawra. He was also treated at Khandwa, Indore and Nagda of which ample evidence is on record. learned Counsel for appellant further submits that appellant was having composite fracture of L-l vertebra with fragmentation and more than 80 per cent compression with posterior bony fragments injuring the spinal cord. It is submitted that Dr. Kaushal Parikh, who is orthopaedic has issued certificate, Annexure P7, according to which appellant was having following complaints:

(1) Inability to start and control micturition (urination) clinically retention with overflow dribbling due to injury to sacral part of spinal cord.

(2) Lack of control of stools, i.e., bowel incontinence due to spinal cord injury.

(3) Pain in back at the site of fracture while (a) coughing (b) sneezing (c) walking long distance.

(4) Paraesthesia: altered sensations in S2, S3, S4 region, i.e., saddle region.

4. It is submitted that Dr. K. Parikh has given the certificate that the permanent disability of the appellant is 100 per cent of the whole body. It is further submitted that Dr. K. Parikh has also appeared in witness-box as AW 2 and has stated that after operation belt was tied on the chest of the appellant so as to enable him to stand. It is also stated by Dr. K. Parikh that appellant is having no control on urination and defecation. It is submitted that looking to the injuries sustained by the appellant the amount awarded is at lower side.

5. learned Counsel for the appellant placed reliance on a decision reported in the case of National Insurance Co. Ltd. v. Krishnappa : 2000(6)KarLJ575 ,wherein in case of compression fracture of vertebra L-3 with traumatic paraplegia with involvement of bladder and bowel dysfunction, Hon'ble Division Bench of Karnataka High Court awarded a sum of Rs. 9,20,000. Break up of which is as under:

(1) Future loss ofearnings Rs. 5,04,000(2) Injury, pain andsuffering Rs. 1,50,000(3) Medical and inciden-tal expenses Rs. 1,61,000(4) Loss of amenities and shortenedexpectation of life Rs. 75,000(5) Future medical andincidental expenses Rs. 30,000______________Total Rs. 9,20,000______________

6. Mr. Anil Goyal, learned Counsel for respondent No. 3 submits that the amount awarded is just and proper. There is no evidence about the earning of the appellant prior to the accident. It is submitted that even if notional income is taken into consideration then looking to the age of the appellant the multiplier of 5 could have been applied and in that account appellant could have been entitled for a sum of Rs. 25,000 (Sic. Rs. 75,000) for future loss of income.

7. learned Counsel for respondent No. 3, Mr. Anil Goyal submits that in the present case appellant is aged 67 years while in the case of National Insurance Co. Ltd. : 2000(6)KarLJ575 , the claimant was aged 40 years, therefore, the case is quite distinguishable.

8. The learned Counsel for the appellant further placed reliance on a decision in the matter of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. : [1995]1SCR75 , werein the injured was a practising lawyer and was aged 52 years sustained paraplegia below the waist resulting in total permanent disability and required continuous treatment throughout his life. In this case Hon'ble Supreme Court awarded a sum of Rs. 14,46,000.

9. Mr. Anil Goyal submits that the circumstances in which Hon'ble Apex Court awarded a sum of Rs. 14,46,000 is quite distinguishable. It is submitted that in that case injured was 52 years and was a lawyer. It is submitted that there was permanent disability and the appellant of that case was not in a position to move, while in the present case, the injured was aged 67 years and was not in such a critical condition as was in the case which was before Hon'ble Supreme Court.

10. Further reliance was placed by the learned Counsel for the appellant in the matter of Durgesh Kumar Yadav v. Vimal , wherein Division Bench of this Court has awarded a sum of Rs. 6,14,000 in a case of fracture of vertebrae bones resulting in non-functioning of both the lower limbs and choking of urinary system. Injured was treated in hospitals at three different places. Appellant was operated upon a number of times, two rods were inserted but he lies on bed as a permanently disabled person to be looked after by the attendants. Disability of the injured has been put at 80 per cent but actually it is 100 per cent. Since appellant is incapable of moving and earning, therefore, appellant is entitled for the following amount:

Permanent disability Rs. 2,55,000Pain and suffering Rs. 50,000Expenditure on treatmentincluding future expendi-ture Rs. 1,50,000Attendant Rs. 1,00,000Special diet Rs. 25,000Loss of income, loss of future enjoyment of life,including loss of marriage prospects Rs. 30,000Transport Rs. 4,000_____________Total Rs. 6,14,000_____________

11. In the present case this Court has to examine the question whether appellant has been awarded just compensation in this case. But counsel for the parties have disagreement on this aspect. Mr. Manish Jain submits that grossly inadequate compensation has been awarded, while Mr. Anil Goyal submits that in the facts and circumstances of the case, just compensation has been awarded and, therefore, case for enhancement is not made out.

12. Look at the nature of injuries suffered by claimant in this accident, which has been discussed in para 3 of the judgment. Claimant suffered fracture of L-l vertebra with fragmentation. The appellant has examined Dr. Kaushal Parikh treating doctor as AW 2, who has stated that the appellant was tied with a belt on his chest so as to enable him to stand. A piece of bone of the appellant from the back side of L-l and L-2 was removed. Appellant lost his control on urination and toilet. There was no sensation below the waist. Dr. Parikh has further stated that appellant has 100 per cent disability which has been calculated on the basis of National Seminar of Disability Evaluation and Dissemination, Director General of Health Services (DGHS), World Health Organization and All India Institute of Medical Sciences. Appellant was treated at number of places such as Alot, Nagda, Javra, Khandwa, Indore and Vadodara. After the accident the appellant was kept on the roadside. Appellant was operated. Obviously, he must have suffered great pain during this time and incurred heavy expenditure. The disability has been put up to 100 per cent and appellant is incapable of moving.

13. Accordingly, this appeal is allowed. Award of Rs. 50,000 is modified and it is ordered that appellant shall be entitled for compensation as under:

Expenditure on treatmentincluding future expenses Rs. 1,00,000Permanent disability Rs. 1,00,000Pain and suffering Rs. 50,000Special diet Rs. 25,000Transport and conveyance Rs. 25,000Expenditure on attenders Rs. 50,000Loss of income and lossof future enjoyments of life Rs. 50,000_____________Total Rs. 4,00,000_____________

14. Accordingly, the compensation of Rs. 4,00,000 is awarded to the appellant payable by respondents. Enhanced amount shall carry interest at the rate of 6 per cent per annum from the date of filing of the claim application.

No Order as to costs.