Karnataka High Court
Akshay S/O. Anil More vs Nazir Mehaboob Mole on 29 November, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 29TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.21628/2012 (MV)
BETWEEN:
Akshay S/o. Anil More,
Ae 17 years, Occ.: Student,
Rep. By M/G Natural Father
Anil Irapanna More,
Age 38 years, Occ.: Coolie,
R/o. Mole, Taluk Athani,
District Belgaum.
...Appellant
[By Shri K.Anandkumar, Advocate]
AND:
1. Nazir Mehaboob Mole,
S/o. Lalsab Nadaf,
Age major, occ.: Business,
(Owner of Vehicle)
R/o.Gugawad, Tq.: Jatta,
Dist.: Sangli,
Maharastra State.
2. The Divisional Manager,
New India Assurance Co. Ltd.,
D.O. Club Road, Belgaum.
...Respondent
[By Smt.Aruna Deshpande, Advocate for R2.
R1-notice dispensed with)
:2:
This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 27.07.2010 passed in MVC
No.555/2009 on the file of the Presiding Officer, Fast
Track Court-II, and Member Additional MACT, Belgaum,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This miscellaneous first appeal coming on for
hearing, this day, the Court delivered the following: -
JUDGMENT
Though matter is listed for orders, by consent of both the learned advocates appearing for the parties, appeal is taken up for final disposal.
2. This appeal is by the claimant for enhancement of compensation, since he is not satisfied with the compensation awarded by the Fast Track Court-II, and Additional MACT, Belgaum in MVC No.555/2009, dated 27.07.2010, whereunder, total compensation of Rs.74,048/- is awarded by the Tribunal.
3. I have heard the arguments of Shri K.Anandkumar, learned advocate appearing for the appellant and Smt.Aruna Deshpande, learned advocate :3: appearing for the respondent No.2. Notic e to respondent No.1 has been dispensed with by order dated 26.11.2012.
4. The Tribunal on appreciation of the entire evidence placed by the parties has awarded total compensation of Rs.74,048/- under various headings, which are as follows:
Sl.
Heads Amount
No.
1. Towards pain & suffering Rs.30,000/-
2. Towards medical bills Rs.5,048/-
3. Towards disability Rs.25,000/-
4. Towards loss of amenities Rs.4,000/-
5. Towards attendant and diet charges Rs.8,000/-
6. Towards conveyance charges Rs.2,000/-
Total Rs.74,048/-
5. Shri K.Anandkumar, learned advocate
appearing for appellant would contend that when Doctor-PW2 has stated that there is 35% disability to the whole body, the Tribunal ought to have granted compensation under the heading loss of future earnings by taking Rs.15,000/- as his income per day and as such, the award of the Tribunal is erroneous. He would also contend that compensation awarded under all :4: other headings are abysmally on lower side and prays for enhancement by allowing the appeal.
6. Per contra, Smt.Aruna Deshpande, learned counsel appearing for respondent No.2 would support the award passed by the Tribunal and contends that what has been awarded itself is on the higher side and she prays for dismissal of the appeal.
7. Having heard the learned advocates appearing for the parties and on perusal of the award challenged in this appeal. It is noticed that PW2-Doctor who has issued the disability certificate-Ex.P12 is not the Doctor who has treated the claimant. The accident in question occurred on 27.11.2008 and after two years i.e., on 25.06.2010 the said Doctor is said to have examined the claimant. He has not assessed the whole body disability. The assessment of disability to the extent of 35% is to the left knee joint and not to the whole body. The claimant was aged about 13 years as on the date of accident and perusal Doctor's evidence :5: made available by the learned advocate appearing for the appellant would clearly go to show that whole body disability has not been assessed by the said Doctor.
Even otherwise, it is notice from records that claimant has sustained fracture of femur. Further claimant was a student and not carrying on any other avocation. The question of computing and awarding compensation under the heading loss of future income does not arise. Hence, the said contention stands rejected.
8. As per wound certificate-Ex.P5 the claimant had sustained fracture of left femur and there are multiple abrasions on his face. The Author of Ex.P5 has opined that injury No.1 (abrasion) is simple in nature and injury No.2 is grievous in nature. Insofar as the left knee joint movements are concerned, Doctor has opined that there is sever limitation of motion in the left knee joint due to fracture and has concluded "fixed flexion deformity in the left knee joint". Considering this medical evidence and the wound certificate-Ex.P5, as also the disability certificate-Ex.P12, I am of the :6: considered view that compensation awarded under the heading disability and loss of amenities requires to be marginally enhanced, in as much as on account of the injuries sustained and disability suffered, claimant has to put up with the same in future and there is found to be certain discomforts and as such an amount of Rs.10,000/- towards loss of amenities in life and additional compensation of Rs.5,000/- towards disability is awarded and it would meet the ends of justice. Hence, an additional compensation of Rs.15,000/- is awarded, which shall carry interest @ 6% p.a.
9. For the aforesaid reason, following order is passed.
i) Appeal is allowed in part.
ii) An additional compensation of Rs.15,000/- is awarded, which shall be payable by respondent No.2 with interest at the rate of 6% p.a. from the date of petition till the date of deposit or payment :7: whichever is earlier.
iii) The 2nd respondent shall deposit the said amount with interest before the jurisdictional Tribunal within four weeks from the date of receipt of copy of this order.
iv) No order as to costs.
It is also made clear that appellant would not be entitled to interest for delayed period as already held by this Court while disposing of the I.A.No.1/2012.
Sd/-
JUDGE Vnp*