Thottathil B. Radhakrishnan, J.
This appeal is by the claimant in an application for compensation under the Motor Vehicles Act, 1988. He is the victim of a road traffic accident which occurred on 27.10.2003. Negligence has been found on the driver of the autorickshaw. Insurance is admitted. Claimant challenges the award of the Tribunal insofar as it relates to the quantum of compensation awarded to him. Heard the learned counsel for the appellant and the learned counsel for the insurer.
2. Taking stock of the entire facts and materials on record, including Ext.X1 medical report by the Medical Board, the testimony of PW1 and PW2, who are the two doctors who tendered evidence, and Exts.A7, A9 and A10 documents, we are of the view that the amounts granted by the Tribunal is inadequate and deserves upward revision in appeal.
3. Appellant was 43 years of age by 27.10.2003 when he suffered injuries. Exts.A7, A9 and A10 disclosed different devastating injuries suffered by the appellant. We may enumerate them as hereunder:
1) Fracture shaft of humerus Rt.
2) Contusion chest
3) Extra dural haematoma
4) Fracture Temporal bone Rt.
5) Brain stem injury.
6) Haemothorax Rt.
7) Fracture ribs Rt.
8) Compound Comminuted fracture scapula Rt. with gross glenoid displacement medially.
9) Puncture wound back.
Exts.A9 and A10 would also show that he was subjected to the following procedures as part of treatment:
Wound debridement, suturing, Rt. arm sling, tracheostomy, intercostal chest tube drainage of right pleural cavity, blood transfusions, ventillatory support etc.
4. The injuries suffered by the appellant would have, beyond dispute, brought him physical burden, not only in the form of pain, but also by way of great amount of inconvenience and disability. All that apart, the mental agony and trauma that he would have gone through also stands established when we appreciate the aforenoted evidence regarding the procedures carried out on him.
5. Ext.X1 is the Medical Board's report assessing the impairment. That shows that the neurological deficits suffered by the appellant are as follows:
1. Moderate dysphagia (condition in which the action of swallowing is difficult to perform or painful and the food held up in a passage to the stomach) and severe dysarthria (speech disorder in which the pronunciation is unclear).
2. Wasting of both shoulder girdles and hand muscles (R > L)
3. Spasticity (damage to the corticospinal tracts in the brain and spinal cord restricting the passive movement of limbs of both upper and lower limbs)
4. Weakness of both upper and lower limbs (upper limb power grade 3/5, lower limb grade 3+/5)
5. Gait-needs two persons support for walking.
That report further noted orthopedic disability of wasting of both shoulders with loss of function of right upper limb due to Volkmann's ischemic (blockage of blood vessels) contracture (fibrosis of muscle tissues causing shrinkage and shortening of muscle without generating any strength) spasticity and old unreduced fracture dislocation of right shoulder and spasticity of both upper and lower limbs with 3/5 power. Also noted that the appellant cannot walk without support. On the basis of the assessment made by that Medical Board, which included specialists from Neurology, Surgery, ENT and Orthopaedics, the certification was that the appellant had 70% permanent neurological disability and 45% orthopaedic disability. If we were to adopt an approach as to what would be the deficit made by way of disability impairing the living condition of this human being, we cannot but say that it would be 100% for loss of earning capacity. Five years after the accident, he needs two persons to support, and the nature of injuries and continued restrictions would only be exceptionally painful and his continued sufferance appears to be life long. Be that as it may, we think that it would be reasonable to adopt a formula pattern which is taken to reckon the disability when there are multiple disabilities while considering cases falling for benefits to persons with disability. The guidelines in this regard would show that it would be a rational approach to calculate the resultant disability by adopting the following formula:
a + b (90-a) 90 where 'a' represents the higher percentage of disability and 'b' represents the least percentage of disability. Adopting that formula, the total disability to be adopted in the case of the appellant would be :
70 + 45 (90-70) i.e. = 70 + 45 x 20 = 80% 90 90 Though the aforesaid is indicated to adopt 80% as the percentage of disability to determine the compensation payable, we have already held that the loss of earning capacity is 100%. Hence, compensation for loss of earning capacity has to be determined by taking such disability at 100%. The monthly income of the appellant who has been reckoned as a “coolie” can be safely taken as `3,000/- per month at the time of accident. This means that taking into consideration that the appellant was then aged 43 years, a projected amount of `4,000/- has to be determined as the monthly income, considering the future prospects as the growth in earnings. The compensation for loss of earning capacity has to be thus determined as follows:
4000x12x15x100 = 7,20,000/-
100
6. Taking into consideration the different injuries, the procedures undergone by the appellant and the long period of treatment and the continuing factual situation regarding his physical condition, in supersession of the amount awarded by the learned Tribunal, we grant an amount of `40,000/- towards pain and sufferings. We award him an amount of `10,000/- towards loss of expectancy in life.
7. We affirm the award of `1,17,000/- towards expenses incurred for treatment.
8. We award the appellant a further amount of `25,000/- towards future treatment.
9. We are of the view that the appellant is entitled to an amount of `50,000/- towards loss of amenities.
10. In supersession of the amount awarded by the learned Tribunal, we award an amount of `50,000/- towards bystanders' expenses, having particular regard to the fact that, following the accident and even now, the appellant needs always two persons to take care of him.
11. The amount granted by the Tribunal towards loss of earnings during the period of treatment is modified to be `3,000 x 6 = `18,000/-.
12. We affirm the finding with regard to the amount of `5,000/- awarded under the heads of transportation, extra nourishment and damage to clothing, as also, `2,500/- awarded under the head of expenses for ambulance charges.
13. Thus, the total compensation due to the appellant is `10,37,500/-, and thereby, he is entitled to enhancement of `5,57,100/-.
In the result, this appeal is allowed granting the appellant an additional amount of `5,57,100/- (Rupees five lakh fiftyseven thousand and one hundred only) with interest thereon at 9% per annum from the date of claim petition till realisation. The insurer is directed to satisfy this appellate award within a period of two months from today.
Sd/- THOTTATHIL B. RADHAKRISHNAN JUDGE Sd/-
BABU MATHEW P. JOSEPH JUDGE //TRUE COPY// PA TO JUDGE ks