1. Heard Sri Vipul Dubey, learned counsel for the appellant, Sri Pawan Kumar Mishra, learned counsel for the respondent no.2 and Sri Rajendra Prasad, learned counsel for the respondent no.1.
2. Heard Civil Misc. Amendment Application No.125003 of 2017 as not opposed by opposite party is allowed.
3. Let amendment be incorporated in the memo of appeal during the course of the day.
Order on Appeal.
4. This appeal has been filed against the award dated 09.12.2010 passed by learned Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Jhansi in M.A.C.P. No.242 of 2007.
5. Appellant's contention is that appellant is an injured though Doctor, P.W.-5 certified her to have sustained 40% disability, but that has been arbitrarily rejected by the learned Claims Tribunal. It is further submitted that even under other conventional heads, learned Tribunal has awarded a very meagre amount and apart from calculation of future prospects on account of loss of notional income on account of permanent disability, appellant is entitled to enhancement under various other heads like transport, pain and suffering, attendant, nutritious diet and future treatment.
6. Sri Pawan Kumar Mishra and Sri Rajendra Prasad in their turn submit that learned Claims Tribunal has discussed aspect of permanent disability. It is submitted that P.W.-5, Dr. Praveen Sarawagi was examined before the Tribunal. P.W.-5 admitted that though the claimant had fractures in both the legs, but fracture of right leg has been completely cured. It is submitted that P.W.-5 has also admitted that compound fracture of left leg has not healed, though accident took place on 26.12.2006 and doctor had certified that the rod which was inserted to fix the fracture was broken. However, there is no mention of the fact that what is the nature and extent of permanent disablement, inasmuch as, P.W.-5 has not deposed that the bone of left leg is not likely to be re-unioned so to bring the claimant appellant in the normal position. There is no shortening. The disability certificate is cryptic and, therefore, learned Tribunal has rightly discarded the aspect of permanent disability especially when P.W.-5 certified that claimant was still under her treatment. It is submitted that there is no illegality in the appreciation of evidence by the learned Claims Tribunal and, therefore, claim for permanent disability was not ripe at the time of decision in the claim petition.
7. Even in this appeal, there is no document annexed along with Order 41 Rule 27 C.P.C. Application to show that what is the current status of disability of the claimant/appellant. Therefore, taking into consideration facts and circumstances of the case, refusal of the Tribunal to award any amount under the head of permanent disability cannot be faulted with.
8. However, a perusal of the award reveals that learned Claims Tribunal has awarded a sum of Rs.35,000/- towards reimbursement of medical bills. Another sum of Rs.10,000/- under the head of future treatment and further sum of Rs.5,000/- under the head of nutritious diet. Another sum of Rs.5,000/- has been awarded under the head of pain and suffering and Rs.1,000/- has been awarded under the head of transport.
9. This Court has taken a consistent view that in case of fracture, minimum amount admissible under the head of pain and suffering is Rs.25,000/-, therefore, there will be enhancement to the tune of Rs.20,000/- under the head of pain and suffering. Learned Tribunal has presumed that future treatment which has been admitted to be admissible to the claimant by P.W.-5 will be dispensed with in a Government Hospital, but there is no basis for such presumption especially when claimant is suffering for long four years at the time of passing of the award, therefore, in my opinion, this amount of Rs.10,000/- under the head of future treatment needs to be enhanced to Rs.50,000/-, therefore, there will be an addition of Rs.40,000/- under the head of future treatment.
10. Besides this, it will be in the interest of justice, if a sum of Rs.15,000/- is awarded under the head of physiotherapy which claimant will be required to undergo on account of such a long drawn medication. Learned Tribunal has awarded only a sum of Rs.1,000/- under the head of transport which needs to be enhanced to Rs.5,000/-, therefore, there will be an addition of Rs.4,000/- under the head of transport. Tribunal has awarded a sum of Rs.5.000/- under the head of nutritious diet which looking to the fact that claimant is under continuous treatment from 2006 to at least 2010 needs to be enhanced to Rs.25,000/- therefore, there will be in addition of Rs.20,000/-. No amount has been awarded under the head of attendant which is allowed in lump sum and is quantified at Rs.24,000/-.
11. In this manner, claimants will be entitled to an additional sum of Rs.1,23,000/- (one lakh and twenty three thousand) in addition to what has been awarded by the learned Claims Tribunal.
12. This additional amount will also carry interest @ 6% from the date of filing of the claim petition.
13. In above terms, appeal is disposed off.
14. Record be sent back forthwith.
Order Date :- 21.1.2021 Ashutosh