Karnataka High Court
Smt Rukayya Aslam Pendari vs Hajimalang Ismailsaheb Awati on 7 August, 2013
Author: A.S.Bopanna
Bench: B.V. Nagarathna, A.S.Bopanna
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 7TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
M.F.A. No.20978/2010 (MV)
BETWEEN:
SMT RUKAYYA ASLAM PENDARI,
AGE 32 YEARS, OCC:DOCTOR.
R/O MADALAGI,
DIST: BELGAUM.
TAL:RAIBAGH. ... APPELLANT
(By SRI. BAHUBALI N. KANABARGI, ADV.)
AND
1. HAJIMALANG ISMAILSAHEB AWATI
AGE: MAJOR, OCC:BUSINESS.
R/O HARUGERI, TAL:RAIBAG.
(OWNER OF
VEHICLE NO.KA-23 M-3271)
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURNCE CO. LTD.,
SHANBAG CHAMBERS,
KIRLOSKAR RAOD, BELGAUM.
(INSURER OF VEHICLE BEARING
KA23/M-3271 POLICY NO.2005/2772,
VALID FROM 16-7-2004 TO 15-7-2005)
... RESPONDENTS
(By SMT. SHARMILA M. PATIL, ADV. FOR R.2,
R-1 SERVED)
2
THIS MFA IS FILED U/S 173(1) OF THE MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 31-12-2009 PASSED IN
M.V.C.NO.1922/2005 ON THE FILE OF THE MEMBER,
MOTOR ACCIDENT CLAIMS TRIBUNAL, RAIBAG, AND ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is posted for admission, with the consent of learned Counsel on both sides it is heard finally.
2. The claimant who sustained injuries in a road- traffic accident that occurred on 1.4.2005, has filed this appeal seeking enhancement of compensation, assailing the judgment and award passed in MVC.1922/2005 by the Motor Accident Claims Tribunal at Raibag.
3. The claimant sustained injury to the right ulna in as much as there was fracture of ole-cronon of Ulna as per Ex.P.2, which is the wound certificate. The doctor was examined in the matter and he has stated that there is 35% physical disability to the right upper ulna. However, the grievance of the claimant-appellant is that the compensation awarded is inadequate on the head of pain and suffering, 3 loss of amenities and no compensation is awarded towards loss of earning capacity.
4. I have heard the learned Counsel for the parties and perused the material on record.
5. The Tribunal has noted that the claimant is a medical practitioner and the appellant's counsel clarifies that she is a homeopathic doctor, nevertheless there is no material on record to show that on account of accidental injuries she has given up her profession owing to physical disability. In that view of the matter, the Tribunal has rightly not awarded any compensation on the head of loss of future earning capacity. However, having regard to the mal- united fracture of ole-cronon (right ulna), I am of the view that the claimant is entitled to compensation on the head of disability which is assessed at Rs.20,000/- and additional compensation on the head of pain and suffering and loss of amenities to an extent of Rs.10,000/- each, taking the total enhanced compensation to Rs.40,000/-. The enhanced 4 compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realization. * corrected * appeal v/c/o dt.
27.06.2013 Sd/-
6. The petition is allowed in-part in the aforesaid ASBJ terms.
Sd/-
JUDGE 5 ASBJ:
M.F.A. No.20978/2010
27.06.2013 Order In para 6 of the judgment, it has been wrongly mentioned as 'petition' instead of 'appeal'.
The same be corrected and fresh copies be issued.
Sd/-
JUDGE Kms Sub/