Karnataka High Court
Purshottam Gowda @ Puttu Gowda vs Nithyananda Naik on 20 December, 2023
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NC: 2023:KHC:46469
MFA No. 7403 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.7403 OF 2013(MV-I)
BETWEEN:
PURSHOTTAM GOWDA @ PUTTU GOWDA
S/O LATE PARAMESHWARA GOWDA
AGED ABOUT 50 YEARS
R/O KUKKUDA ADI MANE,
TENKA MIJAR VILLAGE,ASHWATHAPURA,
MANGALORE TALUK- 575001.
...APPELLANT
(BY SRI. RANJAN KUMAR K., ADVOCATE)
AND:
1. NITHYANANDA NAIK
S/O MAHADEVA
AGED ABOUT 32 YEARS
R/O BRAMMOR POST,GATTLAGAR VILLAGE
Digitally signed
by VINUTHA B S
ANKOLA TALUK,
Location: HIGH KARVARA DISTRICT,
COURT OF
KARNATAKA UTTARA KANNADA-581 301.
2. THE UNITED INDIA INSURANCE CO. LTD.,
BRANCH OFFICE,VARANASHI TOWERS,
I FLOOR, MISSION STREET
BUNDER, MANGALORE-575 001.
...RESPONDENTS
(BY SRI. A.N. KRISHNA SWAMY, ADVOCATE FOR R2;
R1 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 27.02.2013 PASSED IN
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NC: 2023:KHC:46469
MFA No. 7403 of 2013
MVC NO.1552/2011 ON THE FILE OF THE III ADDITIONAL
DISTRICT, MEMBER, MACT-4, D.K, MANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Disputing the validity and the legality of the order that is passed by the Motor Accidents Claims Tribunal, Mangalore in MVC No.1552/2011 dated 27.02.2013, the present appeal is preferred. This is a claimant's appeal.
2. The appellant was granted compensation of Rs.1,60,000/- as against the claim of Rs.5,00,000/-. Aggrieved by the same, the present appeal is filed.
3. Heard the learned counsel for the appellant. Though Sri.A.N.Krishna Swamy is on record representing respondent No.2, learned counsel failed to make his submission. Likewise though notice was served upon respondent No.1, he failed to contest the matter.
4. The main grievance of the appellant is that he was not granted the amount claimed. Arguing in that regard learned counsel for the appellant states that the appellant was -3- NC: 2023:KHC:46469 MFA No. 7403 of 2013 working as Mason and was earning Rs.400/- per day by the date of accident, but the Tribunal had took the income of the appellant as Rs.5,000/- per month and arrived at a wrong figure with regard to loss of earnings. Learned counsel also states that when the disability of the appellant is assessed to be 15%, the Tribunal has taken disability as 5% which is improper. Learned counsel further submits that the Tribunal awarded very meager amount as compensation and that apart no amount is awarded under the head loss of amenities in life and therefore, the compensation granted by the Tribunal is required to be increased substantially.
5. A perusal of the contents of Ex.P3 wound certificate goes to show that the appellant sustained fracture of tibia and fibula and also fracture of 3rd metacarpal bone which are grievous in nature.
6. The evidence of PW2 is that he is working at Tejasvini Hospital as a Casualty Medical Officer and the appellant was brought to the hospital on 17.04.2011. On examination he was found to have sustained a lacerated wound over the anterior aspect of 1/3 of left leg exposing the bone, -4- NC: 2023:KHC:46469 MFA No. 7403 of 2013 swelling and tenderness over the left hand. He further stated that he issued a wound certificate. The appellant was treated as inpatient from 17.04.2011 to 02.05.2011 and the appellant underwent wound wash with debridement, external fixation removal and ring fixation for left leg was done on 26.04.2011. He further stated that the appellant was assessed and found that he is having 15% functional disability in respect of left lower limb.
7. When the impugned order is looked into, this Court finds that taking into consideration the evidence produced, the Tribunal awarded a sum of Rs.40,000/- under the head pain and suffering, Rs.65,165/- towards medical expenses, Rs.5,000/- towards food, attendant charges and incidental expenses, Rs.10,000/- towards loss of income during the period of treatment and Rs.39,000/- towards loss of future earnings. In total, the Tribunal awarded a sum of Rs.1,59,165/-.
8. The Tribunal took the income of the appellant as Rs.5,000/- per month and proceeded with the calculation. As per the version of the appellant, as a Mason he was earning Rs.400/- per day. However, no positive evidence is produced in proof of the said fact. But considering the occupation of the -5- NC: 2023:KHC:46469 MFA No. 7403 of 2013 appellant, the Tribunal ought to have taken the nominal income as Rs.6,500/- per month. If such amount is taken as the earnings and loss of earning capacity is calculated taking the disability as 5% and the appropriate multiplier '13' as taken by the Tribunal, loss of earnings comes to Rs.50,700/- (6500x12x13x5%).
9. Having regard to the nature of injuries sustained and the treatment went on, this Court is of the view that the appellant would not have attended his normal duties and pursuits at-least for a period of six months. Therefore, the loss of earnings during the laid up period comes to Rs.39,000/- (6,500 x 6). Also a sum of Rs.5,000/- is liable to be awarded towards loss of amenities in life. Thus, in all the appellant is entitled to compensation under the following heads:
Description Amount
Sl. Rs.
No
1 Compensation for pain and
suffering 40,000
2 Medical expenses 65,165
3 Food, attendant charges
and incidental expenses 5,000
4 Loss of income during laid
up period 39,000
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NC: 2023:KHC:46469
MFA No. 7403 of 2013
5 Loss of future earnings due
to permanent disability 50,700
6 Loss of amenities in life
5,000
Total Compensation Rs.2,04,865
10. Thus, with the foregoing observation, the
appeal is allowed in part.
The compensation granted by the Motor Accidents Claims Tribunal, Mangalore, through orders in MVC No.1552/2011 dated 27.02.2013 is increased from Rs.1,60,000 to Rs.2,04,865/-.
The enhanced amount shall carry the same interest as awarded by the Tribunal from the date of petition till the date of deposit.
The award of the Tribunal in all other aspects holds good.
Sd/-
JUDGE AP CT:TSM List No.: 1 Sl No.: 35