Ramachandran Nair, J. This appeal is filed from the judgment in O.P(MV) No.236/2010 of the M.A.C.T, Punalur. Mainly it is a case where the appellant claims enhancement of compensation already awarded by the Tribunal. The accident occurred on 20.03.2010 at about 5.15 p.m while he was travelling as a passenger in an autorickshaw along Kollam-Schencottah National Highway 208 road. At a place called Valacode, the offending vehicle, namely a lorry having Registration No.T.C.T-4889 which was coming from the opposite direction and through the wrong side, hit the front portion of the autorickshaw. The appellant sustained fracture of right femur, fracture shaft of left tibia and fibula and other multiple soft tissue injuries. Immediately he was taken to the Government Hospital, Punalur and from there to Medical College Hospital, Thiruvananthapuram. Various treatment procedures were applied, he underwent open reduction and internal fixation and he had to undergo treatment for more than 2 years as inpatient and outpatient.
2. He claimed that he was a Motor Mechanic, aged 38 years and has been earning Rs.6,000/- for his family. The temporary disability has been assessed as 100% for one year from the date of accident and permanent disability as 17%. As against Rs.5 lakhs claimed as compensation, the Tribunal below has awarded Rs.1,79,485/-.
3. We heard the learned counsel for the appellant and the learned counsel for the respondents. The learned counsel for the appellant invited our attention to the details of the injuries sustained by him, the various types of treatment undergone by him, the period of treatment and other factors. The entire details as available from the various documents produced by the appellant will show that he was initially treated in the Medical College, Thiruvananthapuram as evident from Ext.A8 as an inpatient from 21.03.2010 to 08.04.2010 (18 days). He was treated there for trochanteric fracture of right femur, fracture shaft of left tibia and fibula and other multiple soft tissue injuries. Ext.A9 is the discharge card of the appellant issued from the said hospital. Ext.A10 is another discharge card issued from the same hospital which will show that he was treated again as an inpatient from 29.04.2010 to 10.05.2010 (11 days). He was treated there for fracture non union of both bone left leg. For a short time he was treated as an inpatient from 10.06.10 to 23.06.10 (13 days) as shown in Ext.A11 discharge card from the Medical College Hospital, Thiruvananthapuram. There the treatment was for fracture non union both bone left leg and type II DM. Exts.A12 to A17 are the O.P records of the petitioner received from the same hospital. Ext.A18 is the treatment card issued from the Government Hospital, Punalur. He was treated as an inpatient in the said hospital at Punalur from 19.05.12 to 31.05.12 (12 days). He was treated there for ILN in situ left leg.
Ext.A20 is the disability certificate issued by Dr. R.Manoj Kumar, Addl.Prof. Of Orthopaedics, Medical College Hospital, Thiruvananthapuram certifying that the appellant sustained 17% permanent disability as per Mc Brides scale.
4. We reproduce the following details from Ext.A20 issued by the doctor, who was examined on 23.02.2013.
“At the time of examination on 23.3.13, he has the following features:
Healed scar on left leg and over left iliac crest.
The fracture of both bones of left leg has united with lateral angulation of 10 degrees. Knee flexion limited to 100 degrees.
Crepitus present in left knee due to post traumatic osteoarthritis.
Dorsiflexion and plantar flexion of left ankle limited to 10 degrees each.
Chronic oedema on left leg which increases on walking.
Tenderness present at fracture site on tibia and fibula with prominence of fibula at fracture site. Residual stiffness of toes present.
Loss of tip of second left toe.
Shortening of 1.5 cm of left leg. Healed scar on right hip.
The trochanteric fracture of right hip has united with implant in situ.
Difficulty in lying down on right side.
Partial ankylosis of right hip with flexion of hip limited to 105 degree.
Internal rotation limited by 10 degrees. Pain present in right hip. Not able to squat.
Not able to carry weight. Difficulty in climbing stairs, Not able to walk fast or run. Persistent low back ache.”
The disability assessed will show that he has got pain and mental trauma, temporary disability of 100% for a period of one year and permanent disability of 17% as per Mc Brides scale.
5. With regard to the monthly income, the learned counsel submitted that the appellant being a motor workshop mechanic and as the accident was of the year 2010, Rs.6,000/- as monthly income will be reasonable; whereas the learned counsel for the Insurance Company submitted that the amount fixed at Rs.3,500/- by the Tribunal is a correct one in the absence of any documentary evidence. Evidently the appellant was working in a Workshop. The accident is in the year 2010. Even with regard to daily labourers in the State it is a matter of common knowledge that they were getting handsome amount from the range of Rs.300/- to Rs.500/- per day during those period. In respect of a Driver who was involved in an accident of the year 2004, the Apex Court, in Minu Rout & Anr. v. Satya Pradyumna Mohapatra & Ors. [2013 ACJ 2544], has adopted Rs.6,000/- per mensem as the income even in the absence of any documentary evidence. The Tribunal had assessed Rs.3,000/- per mensem therein which was not accepted by the Apex Court. Herein we are of the view that since the appellant is a skilled labourer namely, a Motor Mechanic, the amount claimed as Rs.6,000/- will only be Rs.300/- per day for 20 days wages only. Therefore the same is only a reasonable one and can be accepted.
6. The loss of earnings has been calculated only for six months whereas the certificate Ext.A20 shows that the appellant was having 100% functional disability at least for a period of one year. Therefore he will be entitled for loss of earning at the rate of Rs.6,000/- per mensem for a period of 12 months.
7. Even though the learned counsel for the appellant submitted that the amount granted towards transportation expenses as Rs.2,000/- is too low, the learned counsel for the Insurance Company submitted that the amount claimed before the Tribunal has been awarded in full under the said head. But since the total compensation amount claimed is Rs.5,08,000/-, we are of the view that a proper assessment should have been made under the item transportation charges. He was in the hospital on different occasions in the Medical College Hospital, Thiruvananthapuram as well as the Government Hospital, Punalur, spanning over a period of 54 days. In that view of the matter, we grant Rs.5,000/- towards transportation charges. The Tribunal has assessed Rs.8,100/- towards bystander's expenses @ Rs.150/- per day. We are of the view that it can be assessed @ Rs.250/- per day for 54 days. For the medical expenses, Rs.32,735/- has been granted as per the bills.
8. The amount awarded towards pain and suffering, according to the learned counsel for the appellant, is too low. We find from the award of the Tribunal that the compensation has been arrived at in para.12 in the following manner:
As against the claim of Rs.75,000/- for pain and suffering only Rs.15,000/- has been granted. The evidence will show that he was continuing treatment as an inpatient in all, for 4 different occasions and he was also treated as an outpatient for a considerable long period going by Exts.A12 to A17 O.P records. Ext.A20 will show that the inpatient treatment was concluded only in the year 2012. He had undergone surgery as well as other procedures during the entire period. Going by Ext.A20 it can be seen that he had pain and trauma as on the date of examination by the doctor ie. On 23.03.2012 also. Therefore at any rate, Rs.15,000/- granted is inadequate. Even though the learned counsel for the Insurance Company submitted that the same does not require any modification, we grant an amount of Rs.50,000/- for pain and suffering. The Tribunal has assessed a composite amount towards loss of permanent disability, compensation for loss of earning power and compensation for loss of amenities. It is well settled that as far as the loss of amenities is concerned, it is a separate head. Herein Ext.A20 certificate will show that 17% shown as permanent disability and no separate assessment is made for loss of earning power. By taking Rs.6,000/- as the monthly income the total amount liable to be granted for permanent disability coupled with loss of earning power is Rs.1,83,600/- (Rs.6000X12X15X17/100). In this context, we find that the approach made by the Tribunal to reduce the percentage of disability to 15% is not justified. The inpatient treatment was for about 54 days in the Medical College Hospital and a certificate was also issued by a competent doctor from the said hospital after detailed assessment and there is no justification to reduce the percentage of disability. Lastly we find that no amount has been granted for loss of enjoyment of life and loss of amenities of life. We have extracted the details of the difficulties of the appellant. Even after he concluded the treatment it will show that there is a shortening of 1.5cm of left leg. He has difficulty in lying down on right side. There is partial ankylosis of right hip with flexion of hip limited to 105 degree. He is unable to squat. There is difficulty in climbing stairs and unable to walk fast or run. Evidently therefore the same would result in loss of enjoyment of life and loss of amenities of life. He was aged only 38 years at the time of the accident. Therefore, it is evident that the disability that is sustained by him will continue to haunt him and therefore we award an amount of Rs.30,000/- for loss of amenities of life and loss of enjoyment of life. Accordingly we refix the compensation as follows:
(Rupees Three lakhs ninety two thousand nine hundred and eighty five only) Thus, the appellant will be entitled to a total compensation of Rs.3,92,985/-, which we round off to Rs.3,93,000/- (Rupees Three lakhs ninety three thousand only), which will carry interest at the rate of 9% per annum from the date of petition. The Insurance Company is directed to deposit the entire amount of compensation within a period of three months from the date of receipt of a copy of this judgment, less the amount already deposited before the Tribunal and on such deposit being made, the claimant can withdraw the amount.
The appeal is allowed accordingly. No costs.
Sd/-
T.R.RAMACHANDRAN NAIR Judge rtr/ Sd/-
P.V.ASHA Judge /true copy/ P.S to Judge