JUDGMENT
T.N. Singh, J.
1. By this common order, two appeals are disposed of as both appeals relate to the common accident which took place on 19.6.1979. Two persons were injured in the accident and two separate claim cases were registered. Appellant Bhagchand has preferred Misc. Appeal No. 38 of 1983; he had instituted C.C. No. 4 of 1980, claiming damages for injuries which he suffered.
2. I propose to deal first with the case of appellant Bhagchand who is aggrieved as the award in the sum of Rs. 7,750/-, according to Mr. Haswani, is on too low a side. Counsel has taken me through the evidence of Dr. V.R. Shinde whose evidence was recorded in Claim Case No. 4 of 1980 while Bhagchand himself also gave evidence and that was recorded in Claim Case No. 3 of 1980. The doctor has deposed that on 19.7.1979, he was attached to District Hospital, Datia as Assistant Surgeon and on that date, at about 6.55 a.m., Bhagchand came to him in an injured condition. He found several injuries on his person and those, in his opinion, were grievous. On the left leg, he noticed the tibia bone being exposed and the muscles damaged. The wound was fresh and he found blood-clotting. He also found dislocation of the left ankle and referred the patient to Superintendent, J.A. Hospital, Gwalior for X-ray and treatment.
3. Bhagchand’s own evidence is that at the Gwalior hospital, X-ray was taken and his leg was plastered and he remained in that condition for six months with the plaster. For ten months, he could not do any work. He was a Diesel Mechanic and on an average, he used to earn Rs. 600/- to Rs. 700/- per month. He spent Rs. 1,000/- for his food and treatment at Gwalior, daily expenses were Rs. 10/-to Rs. 15/-. He used to go for consultation also to Jhansi hospital and there he spent about Rs. 1,000/-. The consultation was necessary because he continued to suffer pain.
4. Mr. N.M. Haswani’s contention is that although the X-ray report has not been proved, the facts which have remained uncontested are crystal clear. To no cross-examination the claimant Bhagchand was subjected in regard to the plaster from which he suffered for six months or even in regard to his inability to perform any work for ten months. As regards his pain also, there is no cross-examination. He is very correct. It appears that the only cross-examination was about the nature of the accident as it was contended that the oncoming vehicle, a bus, was not driven rashly and it was also contended that the motor cycle of which the appellant was a pillion rider was not being driven by a licensed driver. Except that, only cross-examination is in regard to cash memos/ receipts about treatment taken at Jhansi or Gwalior.
5. In the facts and circumstances of the case, in my view, the award definitely deserves to be modified. The Tribunal ought to have taken into consideration the pain and suffering for six months due to plaster which the claimant had undergone. It had also to be considered that for ten months he was rendered unemployed. Taking an overall view of the evidence, the compensation is enhanced to Rs. 15,000/-.
6. I take up now the other case. Appellant Hardayal singh, in the other appeal, Misc. Appeal No. 39 of 1983, had instituted Claim Case No. 3 of 1980 and he has been awarded by M.A.C.T., Datia, a sum of Rs. 14,400/- as compensation for the injury he suffered. That, it is contended by Mr. Haswani, is on extremely low side and the compensation is grossly inadequate because the claimant became a subhuman after the accident. He proved by producing medical evidence that his leg was shortened by 1 1/2″.
7. The doctor who treated the claimant at Medical College, Jhansi, Dr. Rajendra Prasad Tripathi, gave his evidence as PW 5. He stated clearly that he found both bones, tibia and fibula, of the left leg fractured. The tibia did not join. He had to undertake an operation and one part of the bone from fibula had to be taken out. The operation was done on 5.10.1979 and the plaster was applied also to the patient. Due to the injury suffered by the accident, the patient’s left leg had been shortened by 1 1/2. As a result, the patient could run with difficulty and in the long run, there was scope for his suffering pains in the joints. The only cross-examination of the witness is that whether any receipt was given by him to the patient and nothing else.
8. The claimant gave his own evidence as PW 3 and his deposition is that he was first examined at Datia Hospital. There, he was put in a plaster and sent to Gwalior. He remained for six days at Gwalior. Thereafter, he remained for four months at the Medical College at Jhansi. For another four months, he had undertaken private treatment. There was fracture also of his collar-bone in addition to the fracture of his leg. Due to injury of his leg, that was shortened by 2″, he had become permanently lame. Before the accident, he could drive motor cycle. In his treatment, he had spent about Rs. 50,000/-. He had to go to Delhi also for treatment. Surprisingly, the claimant has also not been cross-examined in any manner in regard to the injuries and that remained limited to the nature of accident.
9. Mr. Haswani has raised a substantial contention submitting that on any account, ignoring all other factors, for shortening of leg, the award of Rs. 14,400/- was grossly inadequate and most unreasonable. He has cited a decision of a learned single Judge of Orissa High Court in the case of State of Orissa v. Prafulla Kumar Satpathy 1989 ACJ 384 (Orissa). That was also a case of shortening of leg but in that case, the claimant had to undergo two operations including nailing and bone grafting. Tribunal’s award in the sum of Rs. one lakh and odds was upheld. Mr. Haswani has also relied on this court’s Division Bench decision in New India Assurance Co. Ltd. v. Ramchandra 1990 ACJ 206 (MP) and has submitted that even without any shortening, because of limping and long suffering, the award of Rs. 50,000/- made by the Tribunal was upheld by the High Court.
10. Mr. Lahoti, appearing for the insurer, has, on the other hand, relied on a decision of a learned single Judge of this court in the case of Salauddin 1990 (II) MPWN 45. I have given best consideration to the decision cited and have carefully gone through the report. The facts there were entirely different. Only finding recorded is that of a fracture and limping while walking. The disability claimed was 45 per cent and on those facts Rs. 15,000/-awarded by the Tribunal was held reasonable. I have also given due consideration that the status of a person suffering injury is to be seen in granting compensation when permanent disablement is claimed because, according to learned counsel, Ramchandra was a man of status unlike the claimant Hardayal Singh who was a mere contractor.
11. The ace-card which Mr. Lahoti played at the end of his argument, however, confounded Mr. Haswani. It is contended by Mr. Lahoti that the claimant himself has limited his claim to Rs. 40,000/- and he is bound by his pleadings.
12. In the facts and circumstances of the case, I have no doubt that the award passed in favour of Hardayal Singh deserves also to be enhanced, but only to the extent of Rs. 40,000/-as pleaded by him.
13. Counsel appearing for the insurer in both cases, Mr. K.K. Lahoti and Mr. V.K. Sharma, have submitted that in the Tribunal, the awarded sum has been deposited. If that be so, credit for that amount shall be given to the insurer.
14. In the end, before parting with both appeals, the jurisdictional correction in regard to interest is required to be made. This court’s Full Bench in Prakramchand v. Chuttan 1991 ACJ 1051 (MP), has taken the view that it is the duty of the Tribunal or in appeal, of the High Court, to award as a reasonable interest 12 per cent and not below that in terms of the statutory provisions. In the instant case, interest at the rate of 6 per cent is awarded and that is without jurisdiction. Accordingly, award as respects interest also stands modified. In both cases, the claimant shall be entitled to award of interest at the rate of 12 per cent per annum from date of application till payment. However, in the facts and circumstances of the case, I make no order as to costs.