DHIRAJKUMAR CHHAGANLAL PATEL Vs. MOHANSING RAMSING

JUDGEMENT

(1.) The appellant-original claimant is before this court being aggrieved by judgement and award dated 28th January 1983 passed by Motor Accident Claims Tribunal (Aux.) Ahmedabad (Rural) at Narol in Motor Accident Claim Petition No.416 of 1981 claiming an additional amount of Rs.12,400/- as out of the total claim of Rs.25,000/-, the Tribunal has awarded only Rs.7,850/-. Learned advocate Ms.Jigra D. Jhaveri for the appellant submitted that the Tribunal has committed error in awarding an amount of Rs.5,000/- under the head, "pain, shock and suffering" despite the fact that the appellant had suffered a fracture, which resulted into wasting of right arm by 1 cm and of right forearm by 1 cm and there was pain and tenderness on elbow joint and there was bony projection felt nearby. The learned advocate for the appellant submitted that the doctor had observed that the movement of right fore arm was limited by 10 degrees and also stated that last 10 degrees flexion was painful and limited and she submitted that by any standard, the amount under the head "pain, shock and suffering" ought not to have been awarded less than Rs.10,000/-, which was awarded conventionally in the matter where the claimant has sustained fracture. Not only that in the present case the claimant had remained on leave for 55 days for taking treatment and 2 days he was unconscious and he remained in-door patient since 31st March 1984 to 7th April 1984. Taking all this into consideration the Tribunal ought to have appreciated and ought to have awarded under the head "pain, shock and suffering" a sum of Rs.23,156/-. She emphatically submitted that in any case the amount should not be less than Rs.10,000/- under the head "pain, shock and suffering". She further submitted that to award an amount of Rs.1,000/- towards discomfort, more particularly, when he had 7 degrees disability in functioning of right forearm and there was shortening of hand, which is sought to be explained away by the Tribunal by saying that, 'this has not affected his income as he was serving in Bank and his salary was not reduced. The learned advocate submitted that, the claimant, for the whole life, will be suffering discomfort on account of this. She submitted that by any s tandard under the head, "discomfort" the Tribunal ought to have awarded a sum of Rs.5,000/-. She submitted that the total claim of Rs.25,000/- was just and proper and the same was required to be awarded by the Tribunal.

(2.) Learned advocate Mr.Sunil B. Parikh for the Insurance Company submitted that the amount awarded is jut and proper; and the Tribunal has taken into consideration all the relevant aspects of the matter; therefore, the First Appeal is required to be dismissed.

(3.) Having heard both the learned advocates for the parties, this Court is of the opinion that in case of fracture, and more particularly, in the facts which are set out hereinabove, the amount of Rs.5,000/- under the head, "pain, shock and suffering" is by any standard on lower side, therefore, it is increased to Rs.10,000/- (Rupees ten thousand only). So far as discomfort is concerned, taking into consideration the wasting of right arm and of right forearm this Court is of the opinion that the amount awarded should be Rs.5,000/-. Accordingly, in all, additional amount of Rs.9,000/- (Rupees nine thousand only) is awarded with proportionate cost and interest. The learned advocate for the appellant submitted that taking into consideration the passage of time this amount be not subjected to deposit and the same be disbursed to the claimant. The request is granted. Additional amount with proportionate cost and interest be deposited within two months from today. On that amount being deposited the Tribunal shall disburse the same to the claimant on proper verification. The First Appeal is allowed to the aforesaid extent.