Karnataka High Court
Sri. Manjunath vs Vijaykumar on 4 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 4th day of December, 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No.23649/2011 (MV)
BETWEEN:
Sri Manjunath
S/o Ningappa Kallapur
Age: 25 years
Occ: Goundi
R/o Hombardi
Tq & Dist: Haveri ...Appellant
(By Sri B.M.Patil, Advocate)
AND :
1 Vijaykumar
S/o Panchaxrappa Chinnikatti
Age: major, occ: business
R/o Vijaya Parvathi Road Lines
Guttal, Haveri
Tq & Dist: Haveri
(owner of Bulero No.KA-27/M-3189)
2 The Branch Manager
United India Insurance Co.Ltd
Mukatali building
Opp: KSRTC Bus stand
Haveri,
:2:
Tq & Dist: Haveri ...Respondents
(By Sri.M G Gadagoli, Advocate for R2)
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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 20.12.2010 passed in MVC
No.254/2010 on the file of the Addl.Sr.Civil Judge and
Member, Addl.MACT, Haveri 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
Though matter is listed for orders, by consent of learned Advocates appearing for parties, it is taken up for final disposal.
2 This is a claimant's appeal seeking for enhancement of compensation not being satisfied with judgment and award passed by Addl.Sr.Civil Judge & MACT, Haveri in MVC No.254/2010 dated 20.12.2010. :3: 3 Heard Sri B M Patil, learned Advocate appearing for appellant-claimant and Sri M.G.Gadgoli, learned Advocate appearing for respondent No.2. Notice to respondent No.1 is dispensed with by order of even date. Perused the judgment and award.
4 Parties are referred to as per their rank in the Tribunal.
5 Claimant sought for awarding compensation of Rs.6 lakhs with interest at 18% p.a. by filing a claim petition under Section 166 of Motor Vehicles Act, 1988 before Tribunal interalia contending that on 22.01.2010 at 10.30 a.m. he got down from the tractor and intended to cross the road and at that time, a Bolero jeep driven by first respondent in a rash and negligent manner endangering human life, dashed against him and caused the accident. On account of the said accident, claimant contended that he sustained grievous injuries and was inpatient for more than two months and as :4: such, he sought for awarding compensation contending that he had sustained permanent physical disability. 6 Though first respondent - owner of the offending vehicle was served, he was unrepresented, second respondent appeared through learned Advocate and filed its statement of objections denying the averments made in the claim petition.
7 On the basis of pleadings of the parties, Tribunal framed issues. Claimant got examined himself as P.W.1 and also examined the Doctor who issued disability certificate and got marked Exs.P-1 to P-39. No evidence was tendered on behalf of respondents. On appreciation of evidence, Tribunal by its judgment and award held that claimant was entitled for compensation of Rs.1,41,438/- under the following heads: :5:
1 Pain and Suffering Rs.32,000/-
2 Diet, nourishment food and Rs. 4,400/-
attendant charges 3 Loss of earning during period Rs. 4,400/-
of treatment 4 Medical expenses Rs. 8,838/-
5 Loss of future income Rs.91,800/-
Total: Rs.1,41,438/-
Claimant not being satisfied with the amount awarded by the Tribunal has filed this appeal and is seeking for enhancement of compensation.
8 It is the contention of Mr.Patil, learned Advocate appearing for appellant that Tribunal committed a serious error in not considering the income of the claimant at Rs.6,000/- per month since claimant was working as mason. He further contends that on account of 55% disability sustained as assessed by P.W.2 - Doctor, Tribunal ought to have taken said disability and determined the compensation and in not :6: doing so, it committed a serious error. He would also submit that Tribunal has not awarded any compensation towards loss of amenities and same requires to be awarded apart from enhancing compensation under other heads. He would also submit that compensation has to be awarded under the head 'loss of marriage prospects'. On these grounds, he seeks for allowing the appeal and for modification of judgment and award passed by Tribunal.
9 Per contra, Sri Gadgoli, learned Advocate appearing for second respondent - Insurance company would not only support judgment and award passed by Tribunal but would also contend that what has been awarded by the Tribunal itself is on the higher side and it need not be enhanced and as such, he prays for rejection of the appeal.
10 Having heard the learned Advocates appearing for parties and having perused the judgment and award :7: passed by Tribunal , it can be noticed that on account of injuries sustained in a road traffic accident that occurred on 22.01.2010, claimant was admitted to District Hospital on the date of accident itself and was discharged on 27.01.2010 as evidenced from Ex.P-6 - wound certificate. For further treatment, he was admitted to Chigateri District Hospital, Davanagere on 04.02.2010 and was discharged on 13.03.2010. Wound certificate also discloses that claimant had sustained comminuted fracture , supercondylar fracture of right femur apart from other injuries. Injuries sustained to right knee i.e., fracture of supercondylar has been classified as grievous injury in the wound certificate and admittedly claimant was an inpatient for 44 days in two spells. Doctor who issued disability certificate - Ex.P-38 has been examined and he has certified that disability to the particular limb of the body is to the extent of 50% to 55%. On the basis of said evidence, Tribunal has taken the percentage of disability at 15% to the :8: whole body which cannot be found fault with since whole body disability would be 1/3rd of disability as assessed by the Doctor with reference to particular limb disability.
11 Insofar as income is concerned, Tribunal has computed monthly income of claimant at Rs.3,000/- by taking it as a notional income. As to why version of the claimant has not been accepted, no reasons are forthcoming from the award. Evidence of P.W.1 - claimant is not discredited. His testimony would go to show that as on the date of accident, he was discharging his duties as mason and accident occurred in the year 2010 and considering minimum wages that was being paid to a mason in the year 2010 at Rs.150/- per day, same can be taken into consideration for the purposes of arriving at the monthly income of claimant namely, at Rs.4,500/- (Rs.150 x 30). Thus, taking income of the claimant at Rs.4,500/- per month, :9: disability at 15% and adopting the multiplier of 17, since age of the claimant as on the date of accident was 25 years, compensation that claimant would be entitled under the head 'loss of future income' would have to be computed and it is as under:
(Rs.4,500/- x 15%) Rs.675/-x 12 x 17 = Rs.1,37,700/-. Tribunal has awarded a sum of Rs.91,800/- as loss of future income and same requires to be deducted and as such, additional compensation to which claimant would be entitled to is Rs.45,900/-.
12 Admittedly, claimant has sustained two fractures and three simple injuries and he was an inpatient for 44 days in two spells as per Exs.P-6 and P-7. Disability certificate - Ex.P-38 would also evidence this fact.
Thus, compensation awarded under the head 'pain and suffering' is marginally on the lower side and as such additional compensation of Rs.8,000/- if awarded, it : 10 : would meet ends of justice. Accordingly, same is awarded.
13 Perusal of the award would disclose that no compensation has been awarded under the heading 'loss of amenities', no reasons are forthcoming from the award as to why said amount is not awarded. Disability certificate produced at Ex.P-38 would also disclose that P.W.2 has clinically and radiologically examined the claimant and found that comminuted fracture supercondylar fracture of right femur is malunited with LCP plate and screws in situ on account of which, the claimant was finding difficulty in bending, walking, running, sitting, lifting, carrying weight, doing routine work, climbing staircase and bearing weight on right lower limb and as such, this Court is of the considered view that claimant is to be awarded a compensation towards loss of amenities in life which is quantified at Rs.20,000/-. Accordingly, same is awarded. : 11 : 14 In view of the fact that Tribunal has considered loss of income for 44 days only which is not in consonance with injuries sustained, disability suffered and reasonable expected time to recover from the injuries to resume work as mason, I am of the considered view that claimant would have been laid up and unable to do mason work atleast for a period of three months and as such, compensation for loss of income during laid up period i.e., for a period of three months namely, a sum of Rs.13,500/- is to be awarded and after giving deduction of Rs.4,400/- awarded by Tribunal, he would be entitled to additional compensation of Rs.9,100/-.
15 Admittedly, claimant was an inpatient for 44 days as noticed herein above and same is reflected in Exs.P-6 and P-7 and during this period of hospitalisation, he would have spent for his food, nourishment and : 12 : attendant charges and he would have also expended amount towards transportation and conveyance and same requires to be suitably compensated and this Court is of the considered view that a sum of Rs.15,000/- if awarded, it would meet the ends of justice and accordingly it is awarded. Tribunal has awarded a sum of Rs.4,400/- and the same requires to be deducted and after so deducting, additional compensation that the claimant would be entitled to is Rs.10,600/- under the head 'attendant charges, diet and nourishment'.
Thus, claimant would be entitled to an additional compensation of Rs.93,600/-.
16 Hence, following order is passed:
(i) Appeal is allowed in part;
(ii) Compensation awarded by
Addl.Sr.Civil Judge & MACT, Haveri in : 13 : MVC No. 254/2010 dated 20.12.2010 is enhanced by awarding additional compensation of Rs.93,600/- which shall carry interest at 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
(iii) No order as to costs.
SD/-
JUDGE *sp