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Karnataka High Court

Sri Chandrashekar vs The Divisional Manager on 16 November, 2012

Author: Ravi Malimath

Bench: Ravi Malimath

                            1            MFA 9251/2010




IN THE HIGH COURT OF KARNATAKA, BANGALORE

     DATED THIS THE 16TH DAY OF NOVEMBER 2012

                       BEFORE

      THE HON'BLE MR.JUSTICE RAVI MALIMATH


              M.F.A. No. 9251 OF 2010 (MV)


BETWEEN

SRI CHANDRASHEKAR
S/O RUDRAPPA
AGED ABOUT 28 YEARS
R/AT BINDAHALLI, BETTALLI GATE
KADABAGERE POST, DASANPURA HOBLI
BANGALORE RURAL DISTRICT.
                                        ... APPELLANT

(By Sri V SUDHAKAR, Adv.)


AND

1.     THE DIVISIONAL MANAGER
       M/S. UNITED INDIA INSURANCE
       COMPANY LIMTIED,
       NO.40, I FLOOR,
       LAKSHMI COMPLEX
       OPP. VANI VILAS HOSPITAL
       K.R.ROAD, FORT,
       BANGALORE - 560 002
                            2              MFA 9251/2010




2.   THE MANAGING DIRECTOR
     B.M.T.C., K.H.ROAD,
     SHANTHINAGAR
     BANGALORE - 560 027.
                                       ... RESPONDENTS

(By Sri G.GIRIYAPPA, Adv. FOR
 Sri M.S.MANDANNA, Adv. FOR R1;
 NOTICE TO R2 - DISPENSED WITH)


    THIS MFA FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:31.3.2010
PASSED IN MVC NO.1355/2009 ON THE FILE OF XVI
ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
MEMBER,    MACT,   BANGALORE      CITY,  PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                  JUDGMENT

Aggrieved by the judgment and award dated 31.03.2010 passed by the XVI Judge, MACT, Bangalore, the appellant has filed this appeal seeking enhancement of compensation.

2. The accident and liability are admitted. 3 MFA 9251/2010

3. The claimant is said to be a driver. There is no material to support the same. The Tribunal held the income of the appellant as Rs.4,000/- per month. The Hon'ble Supreme Court in the case of Ramchandrappa vs. The Manager, Royal Sundaram Aliance Insurance Co. Ltd., reported in AIR 2011 SC 2951, has held that for an accident that took place in the year 2004, the wages of an unskilled labour could be taken anywhere between Rs.100 to 150 per day.

4. The claimant claims to be a driver. The accident is of the year 2008. Hence, it would be appropriate to hold the monthly income of the claimant at Rs.5,500/- per month. So far as disability is concerned, the doctor PW-3 has explained the condition of the claimant. I have examined the records. In his detailed affidavit, he 4 MFA 9251/2010 has narrated various treatment administered to the claimant. That, he was initially admitted and treated at Suguna Hospital, Rajajinagar, Bangalore and later at M.S.Ramaiah Hospital for three days. A Tracheotomy was done and the patient was on ventilatory support due to difficulty in breathing sec. to head injury / fracture right femur and fracture of left maxilla and mandible. On considering the condition of the claimant and on examining him, the doctor has narrated as follows:

"10. The patient was gradually weaned from the Tracheostomy over an extended period of time. His parameters improved and on discharge on 20.02.2009, he was :

i) Conscious and responding to strong verbal command with periods of irritation;

          ii)    Tracheostomy            wound       was
                 strapped;
                                5                MFA 9251/2010




            ii)     All wounds were healed without
                    any infection;

            iv)     He was ambulatory with support
                    with great difficulty;

            v)      His right upper limb and lower limb
                    were paralysed with no moter and

activity and minimal response to sensory stimuli;

vi) He had to be fed with support by his attendants"'.

He has therefore opined that, there is a permanent disability of 72.5%. The Tribunal did not accept the evidence of the doctor in view of the fact that he was not the doctor who has treated him that he was only an Orthopedic Surgeon and not a Neuro Surgeon. I'am unable to accept the reasoning of the Tribunal. PW-3 is a practicing doctor. PW-3 is an Orthopedic Surgeon who is qualified to assess the disability of the claimant. The doctor has stated that the patient has to be assisted in getting up and 6 MFA 9251/2010 sitting down. The patient requires support of an attendant to ambulate, he has become obese and has a slurred speech. He has stated that the patient's right upper limb and lower limb were paralysed with no moter and activity and minimal response to sensory stimuli and had to be fed with support by his attendants.

In the circumstances, the disability as narrated by the doctor requires to be accepted. He cannot perform his day-day-day function. His right side of the body is paralysed. Hence, I'am inclined to hold his disability as narrated by the doctor at 72.5%. He was aged 27 years and the appropriate multiplier is '17'. Hence, loss of income due to disability is worked out as follows:

Rs.5500 X 12 X 17 X 72.5% = Rs.8,13,450/-

5. In view of the serious nature of the injuries sustained, the amount awarded towards pain and suffering is enhanced by a further sum of Rs.50,000/-.

The claimant requires atleast a year's time barely enough to attend to recuperate. Hence, a sum of Rs.66,000/- (Rs.5500 X 12) is granted towards loss of income during the laid up period.

The Tribunal has awarded a sum of Rs.6,08,000/- towards medical expenses in terms of medical bills produced by the claimant and the same remains undisturbed.

The Tribunal has awarded a sum of Rs.40,000/- towards loss of amenities and the same is on the lower side. In view of paralysis on the right side of the body, a further sum of Rs.1 Lakh is granted under the said head.

The Tribunal has awarded a sum of Rs.25,000/- towards conveyance, attendant charges and nourishment and diet. The claimant was treated in the ICU for a period of 4½ months. Hence, a further sum of Rs.65,000/- is granted under the said head. The doctor has stated that, he requires assistance for getting up and sitting down and he requires support of an attendant to ambulate and has to be fed with support by his attendants. In the circumstances and in view of the fact that the right limbs are paralysed, an attendant is absolutely necessary for his day-to-day survival. Under these circumstances, it is appropriate to grant attendant charges. Therefore, the notional income of the attendant would be Rs.2,000/- per month and the multiplier as adopted for the claimant is also adopted for the attendant. Hence, a sum of Rs.4,08,000/- (Rs.2000 X 12 X17) is granted under the said head. 9 MFA 9251/2010

6. Accordingly, the compensation would stand enhanced as under:

Pain and suffering Rs. 1,20,000/-

                               (Rs.70,000 + Rs.50,000/-)
Loss of future income due
to disability             Rs.8,13,450/-
Loss of income during
laid up period            Rs. 66,000/-
Loss of amenities         Rs. 1,40,000/-
                               (Rs.40,000 + Rs.1,00,000/-)
Conveyance,    attendant
nourishment and diet           Rs.    90,000/-
charges                        (Rs.25,000 + Rs.65,000)
Medical expenses               Rs.  6,08,000/-
Future Attendant charges       Rs.  4,08,000/-
          TOTAL                Rs. 22,45,450/-


   7.      Accordingly,   the     compensation      stands

enhanced by an additional sum of Rs.11,48,050/-

(Rs.22,45,450/- minus Rs.10,97,400/-) with interest @ 6% p.a., from the date of petition till the date of payment, to be settled by the Insurance Company which will not be later than a period of Eight weeks, from the date of receipt of the copy of this order.

Ordered Accordingly.

Sd/-

JUDGE dh*