Karnataka High Court
Sri Thayanna vs M/S United India Insurance Co. Ltd., on 29 August, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 29TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
MISC.FIRST APPEAL No.4920/2012
BETWEEN :
Sri.Thayanna
S/o Late Kanumaiah
Aged about 27 years
R/at Bachalli village
Kodambia Halli
Veerupakshipura Hobli
Channapatna Taluk
Ramanagara Dist. ...APPELLANT
(By Sri.R.Lakshman, Adv. For
Sri.H.B.Somapur, Adv.)
AND :
1. M/S. UNITED INDIA INSURANCE CO LTD.,
By its Manager
D.O.No.5, No.25
Shankaranarayana Building
M.G.Road, Bangalore-27.
2. M/S.KRISHNAVENI ENTERPRISES
By its Proprietor
Neralur Gate, Hosur Main Road
Attibele, Anekal Taluk
Bangalore Dist.-562 107. ...RESPONDENTS
(By Sri.Janardhan Reddy, Adv. For R-1;
Notice to R-2 is dispensed with)
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THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:12.1.2012 PASSED IN MVC
NO.7661/2010 ON THE FILE OF THE MACT., COURT OF SMALL
CAUSES, SCCH-10, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Claimant is seeking for enhancement of compensation on the ground that the quantum of compensation awarded by M.A.C.T., Bangalore, in M.V.C.No.7661/2010 dated 12.1.2012, is on the lower side.
2. Though matter is listed in orders' list, by consent of learned Advocates appearing for the parties, it is taken up for final disposal.
3. I have heard the arguments of Sri.R.Lakshman, learned Advocate appearing on behalf of Sri.H.B.Somapur for appellant - claimant and Sri.Janardhan Reddy, learned Counsel appearing for respondent No.1 - insurer. Notice to respondent No.2 has been dispensed with by order of even date.
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4. On account of a road traffic accident that occurred on 27.9.2010 at about 2.45 p.m. while claimant was travelling in a Tractor-Trailor, a mini lorry is said to have dashed against the Tractor-Trailor on account of rash and negligent driving of said lorry and due to the impact, claimant fell down and sustained grievous injuries all over body and as such, he was shifted to Victoria Hospital, Bangalore, for treatment. His right leg above knee came to be amputated. On account of disability sustained, he filed a claim petition seeking compensation of Rs.25 lakhs. Insurer appeared and contested the matter. Tribunal after considering the pleadings and on appreciation of evidence both oral and documentary awarded a total compensation of Rs.6,82,600/- under the following heads:
1 Pain and suffering Rs. 70,000/-
2 For medical expenses and other Rs. 25,000/-
Incidental charges 3 Loss of amenities and future Rs. 10,000/-
discomfort 4 Loss of earning during the Rs. 10,000/-
treatment 4 5 Loss of future earning capacity due Rs.5,37,600/-
to disability 6 Loss of marriage prospects and Rs. 30,000/-
Expectation of life
TOTAL Rs. 6,82,600/-
5. Not being satisfied with the quantum, claimant is in appeal seeking for enhancement.
6. It is the contention of Sri.Lakshman that Tribunal erred in not considering disability at 100% though doctor - PW-2 has stated to said effect and considering the income at Rs.4,000/- per month is on lower side and he prays for considering the income of the claimant at Rs.6,000/- per month as claimed in claim petition. Hence, he prays for re- computation of compensation under all heads on the ground that it is on lower side.
7. Per contra, Sri.Janardhan Reddy, learned Counsel appearing for insurer would support the judgment and award passed by Tribunal and submits that what has been awarded by the Tribunal is just and reasonable and as such, he prays for dismissal of the appeal.
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8. Having heard the learned Advocates appearing for the parties and after bestowing my careful attention on the contentions raised and also on examining both oral and documentary evidence afresh tendered by the parties before Tribunal, I am of the considered view that claimant would be entitled for enhancement of compensation for the following reasons:
In the said accident undisputedly claimant had sustained injuries all over the body. On account of extensive injury caused to the right leg, on 11.10.2010, below knee guillotine amputation was done on account of grossly infected gangrenous of right leg. On account of said infection being continued, further amputation was done on 23.10.2010 above knee. As per wound certificate, claimant had sustained following injuries:
1. Type 2 compound fracture right tibia;
2. Fracture of 2nd, 3rd, 4th, 5th and 6th ribs on the Right side;
3. Fracture of body of right scapula & fracture Lateral end of right clavicle.6
Doctor, who has treated claimant and who had examined him on 11.7.2011 for assessing the disability viz., the Orthopedic Surgeon of Victoria Hospital, has been examined as PW-2. After having evaluated the disability, he has opined as under:
"I submit that, the patient says that as on the date of accident he was working as a Coolie, work of loading and unloading, if that is so, with the above disability and deformity he cannot perform coolie, work of loading and unloading or any other work, thereby the functional physical disability is 100%"
9. It is not in dispute that Tribunal has accepted the plea of claimant that he was working as a loader and unloader at the time of the accident. Records of the Tribunal would also indicate that insurer has accepted the award in question and there is no challenge to the same. In that view of the matter, I am unable to take a different view from the one taken by Tribunal viz., accepting the plea of claimant that he was a loader/unloader as on the date of accident that occurred on 27.9.2010. Even under the Minimum 7 Wages Act, as per the extant notification issued by the appropriate Government, the wages that was being paid to persons, who were in the avocation in which claimant was carrying on, viz., loader - unloader, was in the vicinity of Rs.150 to 170/- per day. Hence, by modest estimation, if the daily wages of claimant is construed at Rs.150/-, the monthly income would be Rs.4,500/-. However, Tribunal has construed the income at Rs.4,000/- and as such, it requires to be marginally increased viz., at Rs.4,500/- and compensation requires to be recomputed accordingly both under the heads of 'loss of future income' and also under 'loss of income during laid up period'.
10. Evidence on record would also indicate that apart from the amputation above knee of right leg, claimant had sustained fracture of 2nd, 3rd, 4th, 5th and 6th ribs on the right side and there was a fracture of right scapula and lateral end of right clavicle. He was an inpatient at Victoria Hospital from 27.9.2010 to 9.11.2010 as per the Discharge Summary
- Ex.P6. On clinical examination of claimant, Doctor has opined that claimant would be unable even to touch his nose 8 with right upper limb; unable to comb his hair; unable to put his shirt; and, even unable to drink a glass of water. The radiological evaluation made by Doctor - PW-2 would also indicate that there is malunion of both clavicle fracture and scapula fracture, as also mild malunion of fracture of right side ribs. In that view of the matter, the compensation awarded towards the amenities being on the lower side and with these disabilities, claimant has to suffer throughout his life and as such, compensation requires to be enhanced towards 'loss of amenities' also.
11. Though Sri.Janardhan Reddy has contended that disability as construed by the Tribunal at 70% is just and proper, in view of the discussion made hereinabove and the Doctor's evidence available on record, I am not inclined to accept the same since claimant was working as a loader/unloader at the time of accident and now by virtue of amputation above knee level and the malunion of the fractures of right clavicle and the ribs as opined by the Doctor - PW-2 and assessing the permanent functional disability of claimant to be at 100%, deserves to be accepted. 9 Hence, I am of the considered view that disability in the instant case is to be construed as 100% and compensation towards 'loss of future income' requires to be recomputed.
12. For the reasons aforestated, compensation to which claimant would be entitled to, is assessed hereinbelow:
1. Loss of future income (Rs.4,500/-x12x16 = Rs.8,64,000/-
LESS: awarded by Tribunal = Rs.5,37,600/-) = Additional Rs.3,26,400/-
2. Loss of amenities = Additional Rs. 40,000/-
3. Loss of income during Laid-up period (Rs.4,500/-x6=Rs.27,000/-
LESS: awarded by Tribunal = Rs.10,000/- = Additional Rs. 17,000/-
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TOTAL Additional Rs.3,83,400/-
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13. For the reasons aforestated, the following order is passed:
1) Appeal is allowed in part.10
2) Judgment and award passed by the M.A.C.T., Bangalore, in M.V.C.No.7661/2010 dated 12.1.2012, is hereby modified and an additional compensation of Rs.3,83,400/- is awarded, which shall carry interest @ 6% per annum from the date of petition till date of payment or deposit, whichever is earlier.
3) The said compensation shall be deposited by the first respondent - insurer before the jurisdictional Tribunal within six weeks from the date of receipt of certified copy of this order. Out of the enhanced compensation, 50% with proportionate interest shall be released in favour of claimant and balance 50% with proportionate interest shall be kept in a fixed deposit in any nationalized bank or scheduled bank of claimant's choice for a period of three years and he would be entitled to draw periodical interest on such deposit. 11
4) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith on emergent basis.
Sd/-
JUDGE KNM/-