&

AWARD

DATED:23.07.2016

PASSED IN MVC.NO.1444/2015 ON THE FILE OF THE MEMBER

MOTOR ACCIDENT CLAIMS TRIBUNAL, RAIBAG, AWARDING

THE COMPENSATION OF RS.3,73,000/- WITH INTEREST AT

THE RATE OF 9% P.A. FROM THE DATE OF PETITION TILL THE

FINAL REALIZATION.

THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

The

insurer

is

in

appeal

challenging

the

compensation awarded to a 10 year old boy who met with

an accident. The doctor has assessed 20% disability to

the limb where the claimant has suffered fracture of tibia.

While determining the compensation, the Tribunal has

taken 20% disability to the whole body and applying the

ratio laid down in the case of Master Mallikarjun Vs.

Divisional

Manager,

the

National

Insurance

Company Limited and Another [AIR 2014 SC 736], the

tribunal has awarded compensation of Rs.3.00 lakhs. In

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addition to that compensation is also awarded under other

heads.

2. Smt Preethi Shashank, learned counsel

appearing for the appellant/insurer would contend that the

Tribunal erred in taking 20% as the disability to the whole

body given the fact that the doctor himself has stated that

the claimant has suffered 20% disability to the affected

limb. That being the case, it is her contention that 1/3 of

the total disability assessed to the particular limb has to

be taken as the disability to the whole body to determine

the compensation.

3. This Court has perused the records made

available by the learned counsel for the insurer and the

doctor’s certificate at Ex.P.12 would reveal that the doctor

has certified that the claimant has suffered 20% disability

to the affected right lower limb. That being the position,

the Tribunal was in error in taking the disability at 20% to

the whole body to determine the compensation. The

Tribunal is swayed away by the opinion of the doctor who

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has given an opinion stating that the disability to the

whole body is 20% despite disability to the particular limb

at 20%. It has to be noticed that in the cross examination

the doctor who has been examined on behalf of the

claimant has stated that he is not in a position to assess

the disability to the whole body. The relevant portion of

the cross examination reads as under:

FUÀ ªÀÄvÉÛ ºÉüÀÄvÉÛÃ£É ¸ÀA¥ÀÆtð zÉúÀzÀ §UÉÎ £ÀÆå£ÉÊvÉAiÀÄ §UÉÎ

£À£ÀUÉ ºÉüÀ®Ä DUÀĪÀÅ¢®è.

This being the position, the Tribunal was in error in

assessing the disability at 20% to the whole body to

determine the compensation.

4. As rightly contended by the learned counsel for

the insurer the Tribunal at the most ought to have taken

8% as the disability at the most to the whole body. That

being the position, applying the ratio laid down in the case

of Master Mallikarjun referred supra, the claimant is

entitled to compensation of Rs.1,00,000/- under the head

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of ‘pain and suffering’, loss of amenities

in life,

inconvenience.

5. Compensation under the head of ‘medical

expenses’ awarded at Rs.58,000/- is supported by

documents, therefore, it does not require any modification.

6. However, further compensation under the heads

grevious injuries, pain and suffering at Rs.10,000/- and

Rs.5,000/-

towards

grevious

injuries

and

towards

conveyance, attendant, nourishment and miscellaneous

charges have to be excluded in view of the law laid down

in the case of Master Mallikarjun referred supra.

7. However, it is to be noticed that compensation is

not awarded for loss of income during the laid-up period

and also for the discomfort and inconvenience caused to

the parents on account of the injuries sustained by the

minor.

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8. Accident is of the year 2015. As per the chart

prepared by the High Court Legal Services Authority,

notional income should be taken at Rs.8,000/- per month.

9. Taking 2 months as the loss of earnings during

the laid-up period, Rs.16,000/- is to be awarded under the

head of ‘loss of income during the laid-up period by the

claimant.

10. Accordingly, the compensa