Karnataka High Court
Shri. Babajan S/O. Ismail Hajarathi vs The Senior Divisional Manager, on 29 November, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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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.21667/2012 (MV)
Between:
Shri. Babajan, S/o Ismail Hajarathi,
Age: 32 years, Occ: Agriculture
Coolie, now nil, R/o: Belawadi,
Tq: Bailahongal, Dist: Belgaum. ...Appellant
(By Sri. Hanamant.R.Latur, Advocate)
And:
The Senior Divisional Manager,
N.W.K.R.T.C.,
Belgaum Divisional Office,
Belgaum. ...Respondent
(By Sri. Shivakumar.S.Badawadagi, Advocate)
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This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 30.12.2010 passed in MVC
No.357/2008 on the file of Senior Civil Judge, Asst.
Sessions Judge and member, Additional MACT,
Bailhongal, partly allowing the claim petition for
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compensation and seeking enhancement of
compensation.
This appeal coming on for orders this day, the
Court delivered the following:
JUDGMENT
Though matter is listed for orders, by consent of learned advocates for the parties, it is taken up for final disposal.
2. This appeal is by the claimant seeking for enhancement of compensation, not being satisfied with the judgment and award passed by the Sessions Judge and Additional MACT, Bailhongal in M.V.C. No.357/2008 dated 30.12.2010. On account of the injuries sustained and consequential disability suffered in a road accident that occurred on 10.10.2007 while claimant was traveling in the bus belonging to the respondent, he filed a claimant petition seeking for compensation of Rs.1,50,000/- :3: and Tribunal after considering rival contentions, by its judgment and award, allowed the claim petition in part and awarded a compensation of Rs57,000/- under the following heads:
1. Pain and suffering Rs.20,000/-
2. Medicine and Hospital charges Rs. 1,700/-
3. Nourishment charges Rs. 500/-
4. Attendant and conveyance charges. Rs. 500/-
5. Loss of income during treatment period Rs.12,000/-
6. Loss of future income Rs.12,300/-
7. Loss of amenities and future happiness Rs.10,000/-
Total Rs.57,000/-
It is this award which is questioned in this appeal.
3. Heard Shri. Hanamant.R.Latur, learned advocate appearing for the appellant and Shri. Shivakumar.S.Badawadagi, learned advocate appearing for the respondent. Perused the judgment and award passed by the Tribunal.
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4. Learned advocate appearing for the appellant would contend that Tribunal committed a serious error in awarding meagre compensation to the appellant and contends that it has to be enhanced under all headings since claimant has sustained grievous injuries and even now he is unable to carry on his routine work and as such he prays for allowing appeal and seeks enhancement of compensation. He would also bring to the notice of this Court that though doctor-P.W.4 had opined that disability is 20% to the right upper limb, Tribunal erred in construing the whole body disability at 2% only which is without any rationale and, as such, he seeks for fixing the disability at least at 10% by construing the same as functional disability since claimant was an agricultural labourer.
5. Per contra, Shri.Shivakumar.S.Badawadagi, learned advocate appearing for the respondent :5: would support the judgment and award passed by the Tribunal and submits that on an over all appreciation of the evidence, Tribunal has awarded just and reasonable compensation which does not suffer from any infirmity and contends it does not require any enhancement and seeks for dismissal of the appeal.
6. Having heard the learned advocates appearing for the parties and on perusal of judgment and award passed by Tribunal, it is noticed that as per the evidence tendered by doctor P.W.4 on 10.10.2007 and 12.10.2007, he has categorically stated that claimant had sustained fracture of right 4th rib and fracture of right scapula. Disability certificate came to be marked as Ex.P.5, a copy of which is made available to the Court by learned advocate appearing for the claimant, during the course of hearing. P.W.4 on clinical and radiological :6: examination of claimant, has issued the disability certificate-Ex.P.5, and under column "functional disability observed are" has not specified the percentage of functional disability; he has only stated that there would be some inability to lift the weight with right hand and difficulty in doing routine work. In this background when the oral evidence of the doctor is perused, it would reflect that permanent physical disability suffered by claimant is 20% to right upper limb and, as such, Tribunal could not have arrived at the conclusion that whole body disability is at 2%. The evidence of the doctor is not discarded by the Tribunal. No other contra evidence was produced by the insurance company. Thus, accepting the evidence of the doctor-P.W.4 assessing permanent physical disability to the right upper limb at 20%, whole body disability would be 1/4th of it, which would be 5% :7: and the same requires to be taken into consideration as whole body disability for the purposes of computation of the compensation under heading of loss of future income.
7. Insofar as the income of the claimant is concerned, it is specifically contended that he was earning Rs.3,500/- per month by carrying on the avocation of an agricultural coolie. However, Tribunal, without rejecting the said claim, has proceeded to determine the income at Rs.3,000/-. No reasons are forthcoming as to why income claimed by appellant is not accepted. In view of unrebutted evidence of claimant that his income was Rs.3,500/- per month, I am of the considered view that same deserves to be accepted since the accident was of the year 2007 and daily wages was around Rs.115/- per day. Accordingly, it is hereby accepted and the 'loss of future income' is computed by taking :8: into consideration the income at Rs.3,500/- and disability at 5%.
8. Tribunal has awarded a sum of Rs.20,000/- under the heading 'pain and suffering'. The doctor, who has issued disability certificate has opined that there were two fractures. In this background, the compensation under the said heading requires to be enhanced by Rs.10,000/- i.e., Rs.15,000/- per fracture.
9. Claimant was hospitalised for 2 days and he would have spent amount towards food and nourishment, attendant's and conveyance charges. Calculated at the rate of Rs.500/- per day, an additional compensation of Rs.1,000/- is awarded under this heading which also includes conveyance and transportation charges.
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10. This Court having already taken the income of the claimant at Rs.3,500/-, 'loss of income during laid up period' also requires to be proportionately enhanced and for four months, 'loss of income during laid up period' would be Rs.14,000/- and the Tribunal having awarded a sum of Rs.12,000/-, an additional sum of Rs.2,000/- is to be awarded under the said heading.
11. On account of fracture of right 4th rib and right scapula, which has remained malunited as per x-ray report reference to which is found in the disability certificate, 'loss of amenities' also requires to be enhanced particularly when the doctor has opined that claimant would be unable to lift weight with right hand and he would find difficulty in doing routine work and as such, an additional sum of Rs.10,000/- is awarded under this heading. Thus, : 10 : the total enhanced or additional compensation that the claimant would be entitled to is as under:
1. Pain and suffering Rs.10,000/-
2. Food, nourishment, conveyance, transportation and attendant's Rs. 1,000/- charges
3. Loss of income during laid-up Rs. 2,000/-
period
4. Loss of future income (Rs.3,500 x 5% = Rs.175 x 12 x 17 = Rs.35,700/- less Rs.12,300 Rs.23,400/-
awarded)
5. Loss of amenities and future happiness Rs.10,000/-
Total Rs.46,400/-
12. For the aforesaid reason, following order is passed.
ORDER
(i) Appeal is allowed in part.
(ii) Compensation as awarded by the Tribunal is enhanced by Rs.46,500/- which shall carry interest at the rate of 6% per annum from the date of petition till date of : 11 : payment or deposit whichever is earlier. However, appellant is not entitled for interest for the delayed period viz., 377 days.
(iii) Respondent shall deposit the enhanced compensation with interest within an outer limit of four weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE Kms