SUBASH Vs. MOHINDER SINGH

JUDGEMENT

(1.) The appeal is for enhancement of compensation for injuries suffered in a motor accident. It was a case of lumbar injury that resulted in a serious impairment of hypoesthesia on the plantar aspect of both feet with loss of control of stool and with clawing of toes. He was also said to have suffered from decrease in vision of both eyes and the disability was assessed at 80%. Dr. Rakesh Girdhar, who was one of the members of the Medical Board, was examined as PW-3. Dr. Subhah Mathur, who had treated him immediately on being admitted in the Government hospital on 19.12.1994 soon after the accident, had also spoken about the injuries noticed on the person that were merely a swelling of 5 cm x 5 cm in the back area and had noticed that the injured person had complained pain in the chest and was advised X-ray at the chest and back. The Tribunal found the injuries caused in the accident to have resulted in the physical disability of 80% and considering his evidence that the claimant was a young person with wife and two children and had lost his job on account of his injuries, assessed a compensation of Rs.8 lacs but reduced it to Rs.5 lacs in view of the fact that it was the amount which was claimed in the claim petition.

(2.) Learned counsel appearing for the respondent points out that although the claimant had contended that he was taking treatment for nearly three months at the hospital, there was nothing brought on record to substantiate his plea and the injuries that had been initially noted down soon after the accident had no relation to the ultimate injuries that were shown and the disability that had been assessed for the claimant. Since there appears discrepancy in the nature of injury that had been noticed on the claimant soon after admission and the elaborate assessment to disability that was made nearly a year after the accident when the evidence was tendered in Court, I had looked into the evidence of the party relating to the disability, which he claimed he had sustained on account of accident and how the evidence has been dealt with in the cross-examination. I find that there is a cogent evidence by the claimant to the effect that ever since the accident he had serious problems and it was the accident injury that had resulted in his present disability of his inability to move and his loss of control over his stool and urination. This corresponds to a medical report as well that the patient had hypoesthesia (hyper sensitivity) of both aspects of his legs and had lost control over his stool and sexual inefficiency and I have no reason to suspect that the claimant had some other disability or had a pre-existing disability without reference to the accident. The crossexamination has elicited no more than the fact that there was no negligence on the part of the person, who drove the vehicle. If the issue of negligence itself is not an issue before this Court with no appeal from the respondent then I have no reason to modify the finding that the disability was on account of accident only. Learned counsel appearing on behalf of the respondent would further contend that the doctor himself had not spoken anything about the disability as something, which is serious and can impair the earning capacity. If the doctor had assessed the patient from the point of view of his serious neurological inefficiencies and there was evidence of the claimant himself that he was working in a finance company in New Delhi and was earning an income of Rs. 30,000/- annually and that after his injuries, he had been dismissed from service without any compensation, there was a clear evidence of the injury as having resulted in a serious impairment and loss on his earning capacity. I will apply a 80% disability as constituting 80% loss of earning capacity as well. He was a young person of 26 years and if he had given evidence to the effect that he was earning Rs. 30,000/- per annum which was very modest, I will apply a 50% increase as a sure prospect which he would have obtained over a period of time and take the annual income to be Rs. 45,000/-. I will apply 20% deduction on the same and take the annual income at Rs. 36,000/-. I will apply a multiplier of 17 that would result in loss of earning at Rs. 6,12,000/-. I will provide for Rs.1 lac towards his permanent disability of what he has suffered as going towards the loss of amenities of his life and provide for Rs. 35,000/- already assessed by the Tribunal towards medicines. I will make a further provisions of Rs. 75,000/- towards pain and suffering and find the total compensation payable at Rs. 8,22,000/-. This proximates to the amount, which was already assessed by the Tribunal but it had reduced the same to Rs. 5 lacs since the claim itself was for Rs. 5 lacs. There is a considerable law to the effect that the Tribunal can widen its power even to grant compensation more than what is claimed if it would accord with justice and evidence. In this case there surely emerged an occasion for awarding compensation more than what was claimed initially. The compensation will, therefore, be assessed at Rs. 8,22,000/-. The amount in excess of over what has already been assessed by the Tribunal will attract interest @7.5% from the date of petition till the date of payment. The liability shall be in the same manner as determined by the Tribunal.

(3.) The award stands modified and the appeal is allowed to the above extent.