Mr.iqbal S/O Late ShekabbA. Vs. Mohammed Musthaf.U.H S/O Late S.B. Mohammed and anr. - Court Judgment

Excerpt:
[mr.justice n.ananda, j.] the appeal is filed under section 173(1) of m.v. act against the judgment and award dated 07.11.2008 passed in mvc no. 1416/2006 on the file of i additional district judge. d.k. at mangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.1. this is a claimant's appeal for enhancement of compensation.2. i have heard sri.h.pavauachandra shetty, learned counsel for claimant and sri.raghu, learned counsel sri.h.s.lingaraj, learned counsel for insurance company.3. as a result of accident, the claimant had suffered following:a) traumatic amputation of the right middle toeb) fracture of 2nd metatarsal shaft.4. the claimant was treated in k.s.hegde hospital at mangalore arid netaji a. yellappa memorial charitable hospital at mangalore. on subsequent examination of claimant, pw.2-dr.lawrence mathais has assessed the partial permanent physical disability at 10% to right lower limb and for whole body at 4%. at the time of accident, the claimant was aged about 28 years and he was sustaining by manual work. the tribunal has awarded compensation of rs.35.800/- under following heads: i injury, pain, suffering and shock - rs.20,000ii medical expenses rs. 3,800iii loss of amenities and enjoyment of life rs. 10,000iv food and attendant charges and incidental expenses - rs. 2,000total rs.35.8005. on hearing the learned counsel for parties and on reconsideration of the matter, 1 find that the tribunal should have awarded compensation towards 'loss of earning capacity". the tribunal should have awarded compensation under the head 'loss of earning during laid up period'. the compensation awarded under the head 'loss of amenities and enjoyment of life' is inadequate. therefore, compensation awarded by the tribunal is modified as follows:i pain and suffering rs.20.000ii medical expenditure - rs. 4.000iii loss of amenities - rs.20.000iv loss of earning during laid up period rs. 12.000v food, nourishment and attendant charges rs. 2.000vi loss of earning capacity and future loss of earnings (rs.3.000 x 3.2 x 17 x .041-24.480rounded off to - rs.25.000total rs.83.000thus, claimant is entitled to total compensation of rs.83,000/-.6. in file result, i pass the following:(i) appeal is accepted in part.(ii) the impugned award is modified by enhancing compensation of rs.35.s00/- awarded by tribunal to rs.83.000/- .(iii) the rest of the award as it relates to rate of interest, period of accrual of interest and liability of respondents is confirmed.(iv) the payment and investment shall be in the ratio evolved by the tribunal. parties to bear their costs.

Judgment:
1. This is a claimant's appeal for enhancement of compensation.

2. I have heard Sri.H.Pavauachandra Shetty, learned counsel for claimant and Sri.Raghu, learned counsel Sri.H.S.Lingaraj, learned counsel for insurance company.

3. As a result of accident, the claimant had suffered following:

a) Traumatic amputation of the right middle toe

b) Fracture of 2nd metatarsal shaft.

4. The claimant was treated in K.S.Hegde Hospital at Mangalore arid Netaji A. Yellappa Memorial Charitable Hospital at Mangalore. On subsequent examination of claimant, PW.2-Dr.Lawrence Mathais has assessed the partial permanent physical disability at 10% to right lower limb and for whole body at 4%. At the time of accident, the claimant was aged about 28 years and he was sustaining by manual work. The Tribunal has awarded compensation of Rs.35.800/- under following heads:

I Injury, pain, suffering and shock - Rs.20,000

II Medical expenses Rs. 3,800

III Loss of amenities and enjoyment of life Rs. 10,000

IV Food and attendant charges and Incidental expenses - Rs. 2,000

Total Rs.35.800

5. On hearing the learned counsel for parties and on reconsideration of the matter, 1 find that the Tribunal should have awarded compensation towards 'loss of earning capacity". The Tribunal should have awarded compensation under the head 'loss of earning during laid up period'. The compensation awarded under the head 'loss of amenities and enjoyment of life' is inadequate. Therefore, compensation awarded by the Tribunal is modified as follows:

I Pain and suffering Rs.20.000

II Medical expenditure - Rs. 4.000

III Loss of amenities - Rs.20.000

IV Loss of earning during laid up period Rs. 12.000

V Food, nourishment and attendant Charges Rs. 2.000

VI Loss of earning capacity and Future loss of earnings (Rs.3.000 x 3.2 x 17 x .041-24.480

Rounded off to - Rs.25.000

Total Rs.83.000

Thus, claimant is entitled to total compensation of Rs.83,000/-.

6. In file result, I pass the following:

(i) Appeal is accepted in part.

(ii) The impugned award is modified by enhancing compensation of Rs.35.S00/- awarded by tribunal to Rs.83.000/- .

(iii) The rest of the award as it relates to rate of interest, period of accrual of interest and liability of respondents is confirmed.

(iv) The payment and investment shall be in the ratio evolved by the tribunal. Parties to bear their costs.