Karnataka High Court
New India Assurance Company Ltd vs Iranna Appanna Kumbar on 17 February, 2010
Author: N.K.Patil
Bench: N.K.Patil
IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT
DHARWAD.
DATED THIS THE 17th DAY OF FEBRUARY 2010
PRESENT "u
THE HONBLE MR.JUsT1_CE .N4.K.£fAT:'L'7--}'
AND V A A A
THE HON'BLE MR. JUSTIC'E)vA.SA.'i«"ACH_If{A15U_REH»
Miscellaneous First Appea1_.1{g; 42:12 of zeoosuwfv)
Between: . A A A
New India Assurance 'Cvomp:any~ L:1i'Ac1.v " A .
Represented by the Deputy =Ma§1ager'~. " ..
No.2--B, Unity BuiIding'Anne:xe _
Mission Road, Banga1QTe' e 2'?'=.ff--,
Representing New_I'nd§._a As;su.ra'riC'e.
Belgaum """ "
.. Appellant
(By Sri SharafiappaVVS:[£{CI1:vad,:"Advocate for Sri B.C.Seetharama
Ra0,AdvoCate}._L . ' , ' A
And:
1_. «Sri Mfipanna Kembar
V Aged years
Major, «Ka.1fi.r1Vjatigi3e1i, Talz Hukkeri
Belgaum =
2; Sri Bf1a.ramaepa Yallappa Chikodi
Major, Islafrlpur, Hukkeri Tq.
' _:Beiga1;m .. Respondents
{By '}'3'.AS.Kamate, Advocate for R-1, R-2 served 82, unrepresented) ;'H'M
-5 E,
3. The Tribunal on appreciation of the oral and documentary evidence and other material on the file has proceeded to award exorbitant compensation towards loss of future income in a sum of Rs.6,12,000/-- taking the disability at 100% on the injury sustained in the right foot. Contending flithati "the i compensation awarded towards loss of " .fu<turie--r_"i1'1c0_rn'e is disproportionate and requires _ substa_nit'ia1 redaction 'after, reappreciation of the evidence on record, the*--app.e1i.an't¢insurer is before this Court in this appeai as statedisuipra.
4. We have h.earpd':-1.ear§nedi ic'ounVsei'_jfoVr"theappeliant and the learned counseiiifor»_the7iriespondenteciaimant. The owner of the offending vehicle'-is an'd¥u~nrepresented.
5. After ciareiful perusal :').._fi.."the judgment and award passed by the Tribu;ijia1,"'it is eIear___t_hat the date of the accident and injury sustain'ed in 'the_i'ac_cident are not in dispute. The doctor has assessed'-.theiipierrnaneint physical disability at 27% in respect of the right footandyhe has undergone treatment for a period of one week iirupatiient in the hospitai and further the doctor has opined that there is functional disability and he is unable to stand, walk for long distance, run, lift weight, do laborious work, difficulty in climbing, walking on slopey area and restriction of forefoot, toe movement, deformity and swelling of foot. The Tribu~r1ia_l looked into this aspect of the matter and_'ii"n,ot compensation towards pain and suffering and ..loss -of amenities 4' life and discomfort. Taking into consideration th1_e,:'dura{:l_or1, oi, treatment, the pain and suffering suffered by"'the"Ac.lai:rriant during' the treatment period and th"e..,discoimfort; hehas tofsuffer, we can safely redetermine the compensation;towairdisajjain and suffering and loss of amenitiesqat. Rs§,40,(i)_:C)O,Rsi,f2h,OOO/-- as against Rs.31,000/fill re.stiectively awarded by the Tribunal. --
6. Further, the Trhibunal 'has erred in not awarding just and reasonable icompeni'sa._tion towards loss of income during laid up i'period'_._lt hvasyyaiwarded only Rs.3,000/--~. The same is inadequate and ii'i'eqi1iresv e1i.har;'ce'ment. We have assessed the income of the claimant"'----at lT_{.s.c'.:,"i500/-- p.m. and we award a sum of Rs.l3,500/-- P9.1"_'iod"of three months aflqhe would not be able to work: on / 3 account of rest advised by the doctor and followaup medical check- up. The award of the Tribunal towards conveyance, nourishment and medical expenses is just and reasonable and V-"remain undisturbed.
7. Further the Tribunal has committed a miscarriage of justice in awarding a sum 'o'f»--Rs.6j_412_,0O@;'- te--W.a19'ds i loss of future income taking into consideration the _Vin--c,ome_o*f..the appellant at the rate of treatiiig the' permanent disability at 100% contrary"vto"the evidence/ion record and without assigning any va'lid.1*Aeasoln.:v 'I'h'e.i:i_said reasoning cannot be sustained and it i_sfi'liabie:'toiib'e:treje'cte_d threshold for the reason thatlas --.a hof._fac_t"the clairnant--resp0ndent No.1 has examined PW2*,,_ the ii(loctor".gi2igeho has assessed the permanent fuynctionailpdisability' a.t:i27°/oi in respect of the right foot. The said e'v.i_den'c.e can beaceepted as the claimant is a driver by profession and ioni'aceo"unit*-.o_f injury sustained he may not be in a position todrive ie'ffec*tiyelyl as he was doing earlier. It is not the case of the "c.laimant__ that he has surrendered his driving licence. Therefore, w_ie.'_ca.n"saifely accept 27% disability to the right foot to determine T the-~compensation under the head loss of future income. The Tribunai has erred in assessing the income of the deceased at Rs.3,000/-- pm. Since the accident is of the year 20_(?4Lw:e~.s_can safely take the income of the deceased at Rs.4,500/--_. appropriate multiplier would be 17. Therefore _t'i1'<:= under the head Ioss of future income A.list,'deiterrriinedigat Rs.2,4'7',860/-- (Rs.4500 x 27/iaox algalinsf. 123.6, 12,000/-- awarded by the Tribunal};
8. For the foregoing re-a_ls:ons'i,_ appeal filed by the insurer is allowed ingpart. _.T}i.§--.jmipguVgriie'd and award passed by the as:_liu.nd.er:"""' 1 Loss of future ---- ' ' Rs.2,24'7,86O 2 injury-,._4pa1n"'an.d.§~,{ii'f¢:ifig Rs. 40,000 /- _ . .:Vledical eiixpensesg. Rs. 10,000/--
. Covnv.e3ra'nc_e, nourishing food and Rs. 13,000/- ' 'V . iatVt'e:ida.nt_c'3n.arges 5 ii 2 = Loss of._ir1porne during Eaid up period Rs. 13,500/-- 6 --V oilamenities Rs. 25,000/--
V as Total Rs.3,49,360/--
AM
(i) The total compensation of Rs.3,49,36O is awarded as against Rs.6,84,000/ -- awarded by the Tribunal.
(ii) Out of the reduced compensation of /' correc ted * 1 ant-claimant.
Vida Ofdaf 5 2nd appellan 'in a nationalised bank/ se_heduleid i'E2a.n}i<i'foir"§i'=..pei:1iod dt:.l€).O3.2G16 L_~//D '~ .
// in)/with proportionate interest shall be deposited iri"tlie::'nairn.e'*oi' the". for a period of five years renewable ifor another period' {Eye xjears, V F
(iii) The claimant is permitted the interest.
(iv) The remaining kwithiiproportionate interest shall be released in (V) Draw up "
(vi) It is arnount deposited by the
-'=119l3'311¢'=1F1t'iI:.lii5»i1ilii1:€i_i"ii appellant. Further the statutory insurer shall be transmitted to the Claims Tribune liifortihwiithi ii Sdf-a Judge Sela} tease NKPJ 85 BSGJ:
10.03.2010 Order on 'for being spoken to' in M.F.A.No. 4712 of 2005 The instant matter is posted 'for being~V"s-picket}: to'. "I171 paragraph 8(ii) third line of the judgment typed as '2nd appellant' instead of '3,i='--.respdhe1'e'nt--c1a»ir1"zaht';
be read as 'ls? responclent~cIaimant';H'uflffice 'directedvvito Carry out the corrections and issue fresh..cer.'tifiet1"'cQp§}'of the jueigment to the counsel for the parties.
56%:
Eaiga A' .....