Karnataka High Court
Syed Abrar vs Mr Sudhakar B K on 23 August, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated this the 23*"? day of August, 2010 B>i~.'Fo;%E THE HoN'BLi: MR. JUSTICE A M.F.A.NO.11547/2507 * ' " BETWEEN : Syed Abrar, Aged about 37 years, .. ~. S / 0 Late Haji Mohammed"N0o:--%u1],a.,. " " C/0 Aboobakar Saheb, ' A "Arshad Manzil", VBai1ake1:e,Vg' A Malpe, Thottam Post, _' A ' _ ' ' UdupiTa1uk " ..Appe}1ant [By Sri._' 8V§ietty,..'AdVocate) AND: _ 1. V, _;f Mr;.Sudhxak:arV'B.K - 'Aged about 49'years, S / o,I\1r,'K. Naranappa, , " vRés:d:r1g,_ai-. "Sai Datta", gAshiya_arJ.,V'Lay0ut, V VH0ige'ijf;tiu Road, As-hokziagar, Maiigalore District. A "1, 2., "The National Insurance Co. Ltd. A ' ~*3Fd Floor, "Unity Building Annex, '72, Mission Road, Bangalore, Rep: by its Nearest D.M, D.O., 2% / Udupi, Shankar Building. Mosque Road, Behind Shankar Vittal Garage. Udupi. . . .Respondents ll " ~ V
(By Sri. O. Mahesh, Advocate for Respo7n__dent.: 2' Respondent No.1 Notice dispensedggwwith \_r-i'c'1'e= --.or.der, dated "~ 24.10.2008) This Miscellaneous First Appleaal li1edl"u,nde1~. 173(1) of MV Act against the-judgment andjiaward c_iated_VK 30.07.2007 passed in MVC No,2':38/2005 on the'-file"'of the ' Additional Civil Judge (Sr.Dn) and it/Iotor".4_\gcciden;t Claims Tribunal, at Udupi praying to&..set--=a:'sidel. the judgment award dated 30.07.2007 passed in NEVC .N0e456;? 2005 on the file of the Civil Judge (Sr.I)n) am-_1_' l\/loto1r;Acoiident" Claims Tribunal, at Udupi and etc.,_ A . ' .
This coming on for Hearing this day, tl*1e"c0_i_iVrt» delivered "t1'lEf"'liOl1'O\?lffl,11gZ uue__mnT This appeal_ the judgment and award dated 30.702007 1u"MVcV.:§Io.?2:5s"')200e on the file of the Civil Judge 2 0at"{SeniorE=7DiifieSi0n) Additional Motor Accident Claims enhancement.
K 2.
2 .V'l"he appellant sought compensation towards A ~p:ers0I1al injuries suffered by him in a motor vehicle accident ems, involving a lorry bearing No.KA 25--A~6399 owned and insured by respondents 1 and 2. The claim was...all.ow.ed partly awarding to the claimants a sum of . claimant is aggrieved by it and seeks enhance'111en}:.. b
4. Learned Counsel would co'nte'n_d'that' has suffered injuries of grievous nature V treatment caused physical impaiurri;entc__of Variousdgdegrees. He relies on the evidencleltof' viz., PW.2 Dr.Vishwanathv it 7 l
5. it is seen that the appellant A' niuries: --
a\../9V»trai1_matic :_st.i:if11ess of left knee joint
1. b) early degenerative Osteoarthrosis of ;,f"1*eft"' knee j t H evidence of PW.2 Dr.Vishwanath, the
--V fractuurecliabone has united and the appellant may not have it ledifficultywllin driving. Whereas PW.3 Dr.Kiran K.V.Acharya . hapsblspoken about the treatment and post--operative care and "the physical disability of the appellant. In his evidence, u Dr.K1ran has spelt out that he examined the appellant on 25.1.2007 after he was treated earlier for the suffered by him on 24.8.2005. As on the examination. he found that the appellant""stll}~'..>1?iad'gthefi "' following :~ a] Genu varum deformity of joint'
b) Effusion of the left knee join.t'""
C) Crepitations in left
d) Post--traumatir,f1st_iffne-pslslloffiéftZikneejoint if
e) Radiological" --v..early:V_'se_e:ondary degenerative arthritis leftknee' joinitf ¢_ r Based on the appellant seeks grant of compensation hf .tov'vards' of future income and enhanf-eeinent of "arno__u_n.rt towards pain and suffering and loss -of amenit.ies, __ the same evidence, Shri Mahesh, learned ll"»-e.__Ve0unsel"for the Insurance Company would seek dismissal of _ap'peal. He contends that if really the appellant had .._'jsuffered injuries as stated by the Doctor -- PW.3 and he had suffered disability, there was no need for examining two doctors. It is seen that PW.2 Dr.Vishwanath_:"~«.y§fho undoubtedly was the doctor who had treated .
spoken to about his physical disabiiity or""effe'etdV'on"_hisu "
avoeation whereas PW.3 has spoken tosaboutre basis, it is urged that the evidence of "P"~t?_Vd.'3 is riot'..ae.ceptabie or it may not infuse confidence of evidtencevfof PW.2. Keeping in mind this aspect,_ I 'hai{e.iexar!ii'I1e»d the evidence of both these medical officers...:._ 'v
8. It while working together"Hos.oital,d' divianipal have treated the appellarit. " He' hasfbeendvsubjected to surgery and with the implant, the...fractured._boz:ies have defused. The fact that docto'r'si__t_Ifeated is established through their speaks of the treatment given to the after speaking about the treatment and 'V the disability as suffered by the appellant. V' "_*»Ther-efore, as can be seen PW.2 has not been examined to
-- gpéakd of the disability whereas PW.3 has been examined to " "speak of it. According to him, 12% physical disability of the job than physical labour, such an opinion is certainly unsustainable. What we have in evidence is that heV_wa's.e_a driver. Therefore, we go on the premise that he§'_is.'oifV'-ssii.-e__ _ has not been able to do as before. Keeping this it award is reassessed. The aInount=__of it by the Tribunal towards painpand sufferiiig to R:-135.000/--. R:-3.10.000/-- islvlvléaxyardedlll'toyyards1Vf§loss of amenities. Rs.30,000/'~;:'_is._ ttowlyards loss of future career prospects. H L V Insofar as'future"loss*~'of'"incorr:e....is concerned, the claimant is to in respect of whole body. of4theV__clai_'mant is that he was earning Rs.5,0O0A/4» "per is undoubtedly an exaggeration. 'V "i,'he'nornial wages drawn by such person 1-V.T.wouI'dcbq..,gs'.4.5OO/elfATherefore. we take his income as l"£2512;..5oo:j'>1..:yp¢};n§¢nth and annually it will be Rs.54.000/--. 'fheAe.lairnan.tlAi2vill be entitled to 10% loss of earning capacity '..___which in case would be Rs.5,400/-- per annum. He was and the multiplier applicable would be 16. On this V' lbaflsis, he is entitled to Rs.86,400/»«. 9377/ In the resultant position, the award of the Trilourlayllis modified as follows:--
Pain and suffering Rs.p35,pO00 = d: p . Loss of amenities 1 ' l V Medical expenses >4 A' V Food and extra Nourishment, Conveyance, Attendants ' Loss of V V Earning3.cap;aci_ty.p V -- Rs_.8G;l-480/-- ToTAi,._ ' ._Rs;1,'59;'9oo/-- The The compensation granted by the Tribtinal» Rs.43,500/- is enhanced to Rs.1_,§59,900/ .. enhanced compensation shall carry 6fi°/"&;..._per annum and the Insurance Company shall ~1;lfi'eeV.dVenAlhanced compensation vm'thin four weeks from the"t:?..ate,.'pv()f receipt of a copy of this order. He is permitted to Vlp.'v.Iithdrav.= 325% of the enhanced compensation and balance '?5'>><2..iyith proportionate interest be kept in fixed deposit for three yearg. The rest of the directions contained in the award of the Tribunal are Confirmed. RV