YOGESH MISHRA Vs. MUNNALAL

JUDGEMENT

(1.) THIS is an appeal under Section 173 of the Motor Vehicles Act, 1988, for enhancement of the compensation awarded for the injuries in the right radius and ulna and a fracture of the right thumb, causing permanent disablement to the extent of 20 per cent, resulting in flex restriction in the right elbow in between 50 degrees and 135 degrees, which on examination by Dr. K.T. Dholakia, an Orthopaedic Surgeon of international fame, was assessed and advised treatment. But, in spite of taking treatment and physiotherapy the restriction did not improve, hence the appellant got again himself examined on 23.3.1991 by Dr. C.J. Gaekwad, an Orthopaedic Surgeon and Reader in Orthopaedics in J.A. Group of Hospitals, who assessed physical disablement because of the restriction in right elbow and in the wrist to the extent of about 20 per cent of upper limb, whose certificate is Exh. P -28.

(2.) IT is not disputed that the driver of the vehicle, on admission, was convicted and sentenced to pay a fine of Rs. 1,100/ - in a criminal case, wherein an injury report was filed which shows eight injuries, grievous and simple. A certified copy of the injury report is on the record. The Tribunal, after appreciation of the evidence, awarded only Rs. 12,000/ - under three heads, that is, Rs. 5,000/ - for pain and suffering, Rs. 5,000 for the expenses incurred on medicines and Rs. 2,000/ - for special diet, but no compensation was awarded towards general damages for permanent disablement, hence this appeal for the enhancement of compensation.

(3.) MR . V.K. Sharma and Mr. B.K. Agrawal, learned counsel for the respondents, contended that by legal evidence the grievous hurt resulting in permanent disablement has not been proved, therefore, the Tribunal rightly did not award the compensation for permanent disablement.