1.0 The above First Appeal No. 925 of 2002, at the instance of United India Insurance Company Ltd. is directed against the judgement and award dated 28.08.2001 passed by learned Motor Accident Claims Tribunal (Auxi.), Ahmedabad in Motor Accident Claim Petition No. 1163 of 1995 whereby the Tribunal has awarded a sum of Rs.426198/ along with interest at the rate of 9% per annum. First Appeal No.1908 of 2002 is at the instance of the original claimant for enhancement of the compensation.
2.0 On 25.01.1995 the original claimant was driving his scooter bearing Registration No. GJ1S7048 with his friend Santoshkumar Papachan who was sitting a pillion rider and were going to his office at C.G. Road. When they reached opposite Champaner Post Office, after crossing Juna Vadaj, the driver of the tanker bearing registration No. GTR 4772 came from behind rashly and negligent manner and dashed with the scooter. As a result thereof, both the original claimants and his friend fell down and sustained serious injuries. The original claimant took prolonged treatment in the hospital. He therefore, filed the aforesaid claim petition claiming compensation in the sum of Rs.10 lacs wherein the aforesaid award came to be passed.
3.0 Learned Advocate for the appellantinsurance company submitted that learned Tribunal erred in accepting the permanent total disablement of the body as a whole at 68% and awarding compensation in the sum of Rs. 426198/. He further submitted that the learned Tribunal should have considered the disability at 20%; that the learned Tribunal ought to have considered monthly income of Rs. 3400/. According to him, taking monthly income of Rs. 3400/ and disability of 20%, the amount for monthly loss would come to Rs. 680/ per month and annual loss would come to Rs. 8160/ ( Rs. 680/ x 12).
4.0 Learned advocate for the appellant further submitted that the amount of Rs. 25000/ towards pain, shock and suffering is on higher side; that though the medical bills worth Rs. 42000/ have been produced by the claimant, the Tribunal awarded Rs. 50,000/ towards the medical treatment which is on higher side.
5.0 Ms. S.R. Shelat, learned Advocate for the respondentoriginal claimant produced the additional paper book. She invited attention of Kessler's medical rating of physical impairment and calculated the measurement based on functional loss. The same is reproduced as under:
Addition percentage. Each major part of limb is represented by a percentage value. For example, each of the three joints of the leg and its associated muscle group is given the value of 0.33. if the impairment affects more than one joint or more than one muscle group, the two or three percentages are added to yield the total value of functional impairment for the extremity. Obviously the total value cannot exceed 100 for any limb or for the spine.
Coming Percentages. When there is more than one type of impairment, the two or more values are combined as many times as is necessary to yield the sum for that part. The formula for combining values is :
a + b(100a) = x 100 in which a is the higher and b the lower of the two values to be combined.
For example, the value for loss of prehension in the hand is combined with the value for loss of sensation to yield an estimate of functional impairment for the hand. Thus, if there is a 75 percent loss of prehension and a 50 percent loss of sensation, the total value for the hand is not 125 percent but 87.5 per cent.
75 + 50(10075) = x 100
6.0 She submitted that the in view of the above, the disability assessed by the learned Tribunal is just and proper.
7.0 According to the learned advocate for the respondent, by considering the annual income of Rs. 35000/ and by doubling and taking average, the amount would come to Rs. 52500/. Considering the 68% disability, the annual loss would come to Rs. 35700/. She submitted that the multiplier of 10 years applied by the learned Tribunal is on lower side. By applying multiplier of 16 considering the age of the claimant as 32 years at the time of accident, the future loss of income would come to Rs.571200/.
8.0 Learned advocate for the respondentoriginal claimant further contended that the learned Tribunal ought to have calculated the actual loss of earning for 30 months and erred in calculating the actual loss of earning only for six month.
9.0 Heard learned advocates for the parties and perused the documents on record.
10.0 As far as negligence is concerned, Dr. Prakashbhai Vitthalbhai Amin in his deposition at Exh. 59 stated that he was practicing since 1983 as an Orthopedic Surgeon and has stated that is a partner in Harikrupa Orthopedic and Accidental Hospital. He has given the details of the crush injury of claimant in his deposition and stated that the crushed part of the bone had been removed by an emergency operation. Plastic surgery was also done on dated 17.02.1995 and thereafter, he was discharged on dated 08.03.1995. A plaster slab was given for three moths at the time of discharge and again in December 95, he was admitted in the hospital and was operated upon. According to this doctor, 1st metatarsal bone of 1st toe and medial mallealis and phalanges of great toe were removed. There was a fracture of lateral malleolus. In December 95, by operation fusion of subtar and midtar joint was done. This doctor specifically stated that, the claimant would find difficulty in walking as there is no support inside the ankle and he would be required to wear calipers. He is also required to wear the surgical shoes with special padding of the type. He has issued disability at Exh. 60 showing the permanent partial disability of the petitioner at 73.7%. He denied in the crossexamination that, with regard to the ankle joint and articular service joint only with the aid of xrays the same can be seen. This Tribunal was also in agreement with the opinion of this doctor, that what is vital is the clinical examination and xray examination is merely an aid to the clinical examination because Radiologist is not supposed to diagnose and the task is entirely on the Orthopedic surgeon. According to him, 73% of the injury is that to ankle and foot and he also agreed of the amputation from the ankle joints as per principles of Kessler, the disability would come to 25% of the lower extremity. However, he denied that, 73% would be reduced if disability of the body as a whole is calculated. On the contrary, in an answer to Court's query this doctor has stated that, since they go by the principles of Kessler, he has not taken into consideration the Indian condition of squatting, sitting on the floor, walking loss use of gazettes while calculating the disability. He denied specifically that, the disability of the body as a whole would be 21% dividing the lower extremity by three individual factors, i.e. loss of muscle power, loss of all the various factors, according to him, the said 73.5% is brought on record ( Exh. 70). There are substantiating medical papers brought on record from Exh. 32, 33, 34, 35, 36, 37, 38, 60, 61, 62 and 67. These certificates are issued by Harikrupa Orthopedic and Accidental Hospital and they substantiate the oral deposition of Dr. Amin. However, Dr. Amin did not agree to the observations made in the xray report of Dr. Dhiraj Shah where he had found from the xray that, rest of the bones of the left foot appear normal. In view of the above and in view of calculation as per principles of Kessler, the Tribunal has rightly assessed the disability to the extent of 68%.
11.0 As far as income is concerned, the claimant has deposed that he was earning Rs. 3500/ per month by working with Super Star Cable Industries as Marketing Manager with 20% bonus. In the cross examination he agreed that he was the only person who was working as a Marketing Manager in the company and there is no account kept of TA and DA was receiving. He was also not paying income tax at the time of accident. No legal action have been initiated for termination of his services. Hence, by taking the annual income of Rs. 35000/ and by taking the double and average, the income would come to Rs. 52500/. The claimant sustained 68% disability. Therefore, considering the disability of 68%, the annual loss would come to Rs. 35700/.
12.0 As far as multiplier is concerned, the multiplier of 10 applied by the learned Tribunal is on lower side. The claimant was aged 32 years at the time of accident. Therefore, multiplier of 16 years ought to have been applied in view of the principles laid down in case of Sarla Verma (Supra). By applying multiplier of 16 years as per the ratio laid down in the case of Sarla Verma ( supra), the future loss of income would come to Rs. 571200/ ( Rs. 35700/ x 16). The Tribunal awarded Rs. 285600/ for future loss of income. Therefore, the claimant shall be entitled additional amount of Rs. 285600/ towards the head of future loss of income.
13.0 The Tribunal has awarded Rs. 20,598/ for actual loss for six months. In my view, by awarding an amount of Rs. 17500/ would be just and proper for actual loss for six months.
14.0 As regards the mental agony, pain, shock and suffering is concerned, I am of the view that the amount of Rs. 25000/ is just and proper.
15.0 The sum of Rs. 50,000/ was awarded under the head of treatment and medical expenses. The treatment was a prolonged one and the injured was required to spend huge amount. Therefore the said award of Rs.50000/ is just and proper. The amount of 15000/ towards the attendance charges, conveyance charges and special diet is just and proper.
16.0 In the premises aforesaid, the claimant is entitled to Rs. 678700/ as total compensation ( Rs. 571200/ towards future loss of income + Rs.25,000/ towards pain, shock and suffering + Rs. 15000/ towards attendance charges, conveyance charges and special diet + Rs. 17500/ for actual loss of six months+ Rs. 50000/ towards treatment and medical expenses). The learned Tribunal has awarded Rs.426198/. Hence, the claimant is entitled to an additional amount of Rs.252502/ (Rs. 678700/ Rs. 426198/) along with interest at the rate of 7.5% per annum from the date of making the claim petition. The award of the Tribunal is modified accordingly. First Appeal No. 1908 of 2002 is allowed to the aforesaid extent. First Appeal No. 925 of 2002 is dismissed. No order as to costs.
(K.S.JHAVERI, J.) niru*