SMTI. APARNA DEY Vs. SHRI BISWAJIT GHOSH, SHRI ANIL DAS, THE ORIENTAL INSURANCE CO. LTD. AND THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD.

JUDGEMENT

(1.) THESE two appeals are being disposed of by a common judgment since they arise out of one accident. Initially, the liability had been fixed on the owner of the vehicle and one appeal was filed against the said award. Later, the owner of the vehicle was exonerated and the liability to pay the compensation was shifted to the Insurance Company. Thereafter, the claimant filed a second appeal. Both the appeals are, therefore, being disposed of together. The undisputed facts are that the claimant suffered injuries in an accident which took place on 16 -05 -2001. In the said accident, the humerus bone of her right arm was fractured. It appears that the claimant was first taken to the hospital at Kamalpur and on 21 -05 -2001 she was shifted to the Nightingale Hospital & Research Centre at Silchar where a plate was inserted in her elbow. She remained in hospital from 21 -05 -2001 to 31 -05 -2001. Thereafter, the claimant was again readmitted on 03 -03 -2002 and discharged on 04 -03 -2002 for removal of the implant. This implant was removed thereafter. Three years later, the claimant went to the Christian Medical College, Vellore complaining that her elbow was stiff since the time of the accident. She claimed that after implant surgery, the wound was infected and skin grafting was done in August, 2001. Again an operation was done on 18 -05 -2004 and the claimant was remained admitted in the Christian Medical College, Vellore from 17 -05 -2004 to 26 -05 -2004. The claimant filed the claim petition claiming compensation and the learned Tribunal awarded total compensation of Rs. 2,65,800/ - under the following heads: - -

(2.) IT is urged on behalf of the claimant by learned counsel that the award is on the lower side and the claimant has not been awarded full compensation. On the other hand, on behalf of the respondents it is urged that the compensation awarded is just and reasonable.

(3.) THE claimant is an Arts Graduate and claims that she was running a Nursery School at her residence in Agartala though her husband was posted and residing at Halahali in Kamalpur. She also claimed that due to the vehicular accident, she lost her ability to work as a teacher and lost her entire income. The disability certificate of the claimant has also been proved on record and it shows that there is post traumatic/operative elbow stiffness and the extent of disability has been shown as 45%. Stiffness of elbow can never lead to 45% disablement in respect of the entire body. It is more than obvious that this disability is in relation to the right upper limb and not in relation to the entire body. The claimant did not care to examine the doctors who had issued the certificate and on seeing the certificate in which the photograph of the claimant is also there, it is apparent that the claimant's elbow alone is stiff. Such stiffness can never lead to 45% disability to the body and, therefore, I take this disability of 45% in relation to the limb.