SUALAL Vs. PADAM SINGH AND

JUDGEMENT

(1.) This appeal has been preferred by claimant dissatisfied with award dated 24.10.2000 of learned Motor Accident Claims Tribunal, Jaipur, by which it has awarded a compensation of Rs.1,04,040/- on different heads, for the injuries sustained by him in an accident took place on 27.08.1993 and taking his permanent disability to be 35% as one of his lower limb was completely crushed from below the ankle level by truck No.RRB 1855. Learned Tribunal held it to be a case of contributory negligence on the part of the claimant to the extent of 10%. Learned Tribunal awarded a total compensation of Rs.1,15,600/- and, after deducting 10% therefrom towards contributory negligence, and ordered for payment of Rs.1,04,040/- as compensation to the appellant, which includes the amount of Rs.35,000/- awarded on the head of permanent disability sustained by him to the extent of 35%.

(2.) Shri K.N. Tiwari, learned counsel for appellant, has argued that appellant was working as coolie. He used to unload the goods from trucks of various transport companies at the relevant time. While he was sleeping on footpath at 3.30 AM in the night of 27.08.1993 near Khandelwal Transport Company, driver of truck No.RRB 1855, without looking at the back side, suddenly reversed the truck and mounted the same on footpath where appellant was sleeping and, in that process, his right foot ankle was completely crushed. Learned counsel referred to statements of two doctors, namely, AW-4 Dr.M.K. Mathur and AW-5 Dr. Pradeep Goyal and argued that those doctors have proved the fact that claimant was subjected to operations for several times. AW-4 Dr. M.K. Mathur has stated that he was a member of the medical board which issued disability certificate to the claimant and found that appellant sustained permanent disability of 35% in his right lower limb. He was subjected to surgery. His foot below the ankle level has been rendered completely disabled. This fact has also been proved by AW-5 Dr. Pradeep Goyal, who has stated that the appellant was subjected to surgery for 7-8 occasions. His first surgery was started at 9.00 AM on 16.09.1993 and continued till 6.00 AM of 17 th September, 1993. It was a complicated surgery and first of its kind in State of Rajasthan. It was microsurgery, wherein crushed blood veins were reconnected with each other by use of microscope.

(3.) He remained hospitalized for different periods between 1993 and 1995 and surgery was conducted on him for 7-8 times. Muscles and skin of one part of the body were grafted on other injured parts, which were completely crushed. In spite of the surgery, there was no movement of the ankle. The surgery was, thus, only partially successful. Learned counsel argued that because of this kind of disability, the appellant would not now be able to work as coolie and has been rendered incapable of normal functioning and his earning for the whole of life has substantially been minimized. The Tribunal has awarded a bare amount of Rs.35,000/- for pain and suffering, whereas he was subjected to number of surgeries and which fact has been proved by the two doctors. For the loss of earning capacity and pain and suffering, the appellant is entitled to be awarded much more amount than what has been awarded by learned Tribunal. Learned counsel, in support of his arguments, cited a judgment of the Supreme Court in Sri Nagarajappa Vs. The Divisional Manager, The Oriental Insurance Company Limited,2011 MACD 79, wherein, the Supreme Court, while dealing with a case of coolie, who sustained disability in his one hand was described by the medical board to be 23%, accepted his disability to be 68% and on that basis awarded the compensation, which was because the Court held that when the effective help of his hand, the claimant would possibly not be able to work as a coolie. Learned counsel argued that it cannot be said to be a case of contributory negligence because the appellant was sleeping on the footpath and a truck driver cannot be expected to take the truck on the foot path. A vehicle always has a rear mirror to see whether the driver could take the vehicle on reverse side or not. Learned counsel also cited a judgment of the Supreme Court in Sri Ramchandrappa Vs. The Manager RSAI Company Limited,2011 MACD 144, in which also the claimant suffered permanent disability to right upper leg. That was also a case of coolie and he was subjected to prolonged medical treatment and hospitalization.