Karnataka High Court
S G Venkatesha S/O S Govindaswamy vs The Managing Director The Karnataka ... on 13 April, 2010
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OP KARNATAKA, BANGALORE
DATED THIS THE 13TH DAY OF APRIL 20?.'
BEFORE
THE HONBLE MR. JUS'l'ICI3'Ar'QAVi'ND:I.I{IIN1IIIR-7:
M.F.ANO.4155/2(507I{II/IVC)"H., A'A'~. I "
BETWEEN: I I I I
S.G. VENKATESHA,
S /O. S. GOVINDASwAI.z[Y,«« _
AGED ABOUT 29 YEARS.' V
R/AT C/O. KRISHNA KUMAE,
No.14, I BLOCK; B;HCS_'LAYO;UT4,*~..i-.._ Z
BANAGIRINAGAI{js§I- BSEIIISTAGE, "
BANGALOR.E'4'I56QOE§~5; ....APPELLANT
{BY SRII\I...S_II5EIAI';:;{\IDV.,:}I "
AND: I I I I I
THE MANAG_II~IG 'DI_R'EC*I?O__R,'
THE KARNATAKA S."I'A"ITE ROAD
TRANSPORT COP_PORAfI*IO.N,
" _K.H,__ (DOUBLE) ROAD; '
,SI«I.AN_TI NAGAR,
_BAN'GAI;ORE"*SBOOE7. . .. RESPONDENT
(BYSRI K..NA.G:AI{AJ, ADV. I
'I~'I*IIS MFA IS FILED UNDER SECTION 173(1) OF MV
_AC',If_ AGAINST THE JUDGMENT AND AWARD DATED
- _ fOS.O8~«..2006 PASSED IN MVC ;NO.5451/2005 ON THE FILE
O_F"'v'I' ADDITIONAL SCJ, MEMBER, MACT, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION POR
-C--OI\/IPENSATION AND SEEKING ENHANCEMENT EOR
COMPENSATION.
TIIIS MFA COMING ON FOR ADMISSION TI'"IIS DAY,
"III---II': COURT I){§LI'VERED TIIE E9OI.I,OWING:
¥_\.}
JUDGMENT
Though matter is listed today for admission by consent of learned Advocates the matter is takevnfupg for final hearing since it is of the year 2007 H having been received.
2. The claimant is in judgment and award paslsedj"'on No.5451 / 2005 by Vltkgjgditioinlall Judge, Member, MACT seeking for enhanvcememfiof compéeiisation.
fact_s nu._tsh"ell are as foilows:
v_«5,.A__gA(:laimi"petiti.(:nn under Section 166 of MV Act ' 1..988,A was filed-.by the claimant seeking compensation of on account of injuries said to have been sustained in a road traffic accident that occurred on A '~:if"'1V8:.ilO"?f».2008 at about 2.30 p.m., when the claimant was said to have been hit by KSRTC bus bearing" registration N'o.MYF-9743 while he was proceeding on his motor cycie bearing regist.ration No. KA»06--L--él382. Medical Expenses ' Rs.53,000/~ « Loss during laidup Rs.O6,000/~
4. On service of notice, the respondent before the Tribunal and filed its statement: H denying the petition averments. l j p in V T
5. On the basis of plead}i£ngs:.lof Tribunal framed" issues for' got himself examined as to P8. The claimant has'-«also e_Xa;_inine'dl the doctor as PW2, who has issued. a disa-bil.ity Vce1%1;_iflc'ate" and got marked EXs.P9 The records of Hosmaltl through the witness PW3 andwas Exs.Pl l to P13.
On thle"b.asii.s of the pleadings and evidence on 'relc"oz.'d;',T'ril:;i_iri%1l allowed the claim petition in part and alwa3i"dedl compensation of Rs.1,l4,000/~ under lx__the following heads:
suffering Rs.25,000/~ Conveyance, Attendants. Nutrition Rs.O5,000/-- {and other incidental charges '~.:
Loss of ainenitv Rs.25,000/~ Total Rs. 1,143,000/~ It is this judgment and award. which is ~'a"ss"aile.r;l, in the present appeal.
7, i have heard Sri. N.S.,:Bhatl,n appearing for the appellant l Counsel appearing for the res_p'on_d--er1t Qeorporation.
8. Sri.N.S.Bhat,l Tribunal erred in not;cohs'i'derii1glpthe doctor - PW2, who has dis'a'i:il:i-'£3;l*oi':»parti.cuiar limb at 40% and and not awarding compensation 'loss of future income'.
He would lsubrnit "that compensation awarded by towvards laid up period is only for two Ai'--~moi11ths.'asvxagainst the genuine claim of the claimant for three njron-ths. He would also contend that the doctor -- has opined that future surgery has to be done for ?_w,,,,,..,., e.__li";errioiral of implant and tribunal having noticed this "e"vidence has not awarded any Compensation under future medical expenses.
a/
9. lie would also submit that there ,._is a shortening of leg by 2.5 ems and compensation under the heading, loss of amenities is on and requires to be enhanced.
10. Per contra, Sri.vl\lataraj;~._"appea§ri'1:gl,..lQ.lL:§theelf respondent -- corporation tliat the Tribunal has rightly Compensation under the heading since claimant has not Lthe_.--c}va'im'Hbetition or in his evidence.31SA'V"i€i""hiis::A_ work and resultant loss iu"the-- ineonae being earned. 51-ll vi(()'t1l'é:l submit: that doctor who has fiVt.:'l'3§,1"tiedhe1s not been examined and evidence cannot accepted, since percentage of V V' _ disability' 'assessed on the 'oasis of injuries sustained is .je1*,roneou's. He would also submit that by looking at the of injuries sustained, the whole body disability 'cannot be 22% and it can be only 10%. He would also A submit that accident in question had occurred in the @r="""'""'fi year 2,005 and by this time iaiplant would have been we 6 removed and question of awardiiig under the heading. future medical expenses does not arise. Accordingly, he seeks for dismissal of the appeal.
12. Having heard the learned parties the following points arisel=.fonmy:'
i) Whether the eoréipensation: l the Tribunal is jus:t':A'a_i1d_y_vreasonable?or it is requiifedill to ,1 enhanced anduf so, tiolllwiiagt l l 'In of the claim petition. it is eoiitended "i;liat._e1ai'i:naiii: was Carrying on business V' vwithoutfspeeifyinglasl to what is the nature of business. t._.ltys_.zasA "nottls.peeified in the evidence, by the claimant. as to what_ of business he was earrying on prior to it "the dateof accident. Et is only in the cross examination 'l.:1e-trites to amplify that he was doing business in plastic it ...af1c1 to evidence tliis fact: no documents has been produced or no witness liave been examined. tn the %/ absence of the same and as rightly contended by the learned Counsel for the respondent, contentio'n'--o_l--Vt"l1e appellant. that claimant was carrying on M plastic and earning a sum of cannot be accepted and accordingly it
14. The Tribunal ..ll:c§3.jrnpensation under the heading laid up period has taken at Rs.3000/--
per evidence and fault with. In these claimant is to be taken at Rs . 8 , O00 ¥ «per,
disahlility certificate has been issued by 'ci_oe.i:_orA 'V-.l.l--'4'fW:_2VF--:Sri.S.Rajanna, who is an Orthopedic surgeoI1«_"Bex$?1'ing and Lady Curzon Hospital, Bangalore. pln his evidence he has stated that he has examined the on 05.06.2006 and found the following :
1. Patient walks with limp on the right side
2. Sh.()rt:er1ing ofRight lower limb by 2.5 ems
3. Operated scar on anterior aspect of right knee
4. Limitation of Right knee movement by 30%
5. Limitation of Right Ankle movement by ' -1~
8. Wasting of right thigh muscles by 4 cnis' " r-3" . '
7. Wasting of right leg muscles
16. It is also in evide1ice~-.of PW"-.2:ti1atl'elairI1'ant--';had * ll suffered fracture of right 1}; Nail Vinsitu. In conclusion he has obiried pfiticular limb i.e right lower limb' andivthe whole body disability is" while considering the evidence of the same on the ground that doctor«._x_yl1.o treatment to the claimant has noi_""§1<)ee;r1 exarr1'i11e_d....v That by itself would not be a 'gro"unAd'v._to the evidence of an expert i.e PW2, wlio°is al's(_)_5an orthopedic surgeon. Vlfhat is to be r__eXamined in such circumstance would be whether the as spoken to by the said doctor is to be a<f:cepted or rejected and if so for what reasons '?
Q» 9
17. To evaluate the evidence of the doctor neither the Tribunal was having any contrary evidence "befojr_e'vit or respondent produced any material to evidence of PW2 - doctors. In tlf1e'i"a'bse_nee the evidence of the PW2 --:
unacceptable for the duo'? the disability, particu1a1'ly; 'rj4riai'te.riall' like discharge summary, X~ray reportllandy C;iC:1:r'I*3Dlj3fvlb(b)r.ative evidence are available; Court is of the lPW2 can be looked into regard is required to be set aside' and..aceordin:giy"it is set aside. Now' coming; to the evidence of PW2 to assess the "disa.bility. the claimant, it is seen that surgery was pelrfo'rmed'.aiiri:; there is shortening of right lower limb by cmsland claimant walks with a limp on right side, "«.rig_§ht""'l<i1ee movement is restricted to 30% and also the movement is restricted to 25%. In View of this uifclinical findings of PW2 this Court. is of the considered opinion that the whole body disability cannot be at 22%. are In View of the opinion given by the doctor on examination as extracted herein above, this Cour=t"is"'o4f the considered opinion that the whole rightly contended by the learned; Counsel the respondent W Corporation the most and hence isxthe compensation is future income, since the sarne by the Tribunal. The assessed by the Tribunal and the disability have of income would be R5300/--e p.a. The age of the claimant as 'ion the date of accident is 28 years as per a'th€ in A '_ records. Appropriate multiplier which Areqohjes.to.,vbe.njap'plied as per Sarla Varma's case would i _ be .andA«:"accordingly compensation towards loss of V. _iflut'1,:.tre Vincome is calculated and which would be Ae.__l?€€>V;E'>1';"2OO/« (36,000 X 17 X 10% / 100]. Hence a sum of F{sl.6 l ,200/« is awarded towards loss of future income. are ll
19. Admittedly, the claimant has suffered a fracture and also there was injury to the head as noticed in EXP4 [Wound certificate] and claimant have been unable to attend to his activities / business atleast for a.;per'iod '* and thus towards loss of income '»dur1'i1'1g' laid periiodis' to be enhanced, by awarding "the Compensation' for three r L' months i.e Rs.9,000/§__ and accor.di'ngly "i's_soHawarded.
Since tribunai has already 8,000/A same is to be deductedandfthédxlenhancediwzicompeiisation of Rs.3 , ' » ' V V 26; 'DoctorA;.i;;«.l»1?"'Jii"2'«"has stated that removal of inp1a1'1t,sA has V-toiie Though Sri. Nagaraj would that by tttt "this time claimant would have i'im«der th~e--:"sui-fe , this Court is of considered _ _ e . or opii'iioI1e.__"tl"1at no presumption can be raised in this H ]regard and tribunal having not noticed this evidence of doctor it ought to have compensated towards "fixture medical expenses. Hence, this Court is awarding a sum of Rs.'7,OOO/A towards future medical expenses.
21. Though the learned Counsel for claimanrtheas contended that compensation awarded heading, loss of amenity is not required to-'be'::en'i'1anced; W on re~a.ppreciation of evidence'2_Vthi_siCodurtii.finds"-..thatr compensation of a sum the Tribunai is just and reasoi1ai5'ie_ and doesnot? call for any interference. Accordin';-g_1y%.;.e'theesaid, claim made by the learned Counsel fo1""Lh-efapperllant 'rejected. 2i2.i"'InyAv.Viev&':*ef-- the"discii's~sioii made herein above, Point. _NO. 1 4_fo'rrriLsifated.h'erein is required to be answered in favour of«..th'e ap._pei_1aiitV by holding that judgment and ;'-fiqiiires to"'--b'e"modified to the extent mentioned _h'ere'in "aboIfe..s_Vby awarding additional compensation of accordingly it is awarded.
3g;Point No.2: in View of the above discussion, »j{';':ie foilowing order is passed. ORDER The appeal is allowed in part.
Compensation awarded by the"Tril:f;vun*al".V is enhanced by award1ing_"a..ii1rnEher_lsui;:i'*~«._ of Rs.71,200/«fix llshailql interest @ _ 6% tlieedateil of petition till""--d'a_te'--. deposit. RespO37.._dtEnt° l the said w'£tl2.i1i--..._a'-." period of 8 weeks V blefohlre '1'j;;1.1"isd1etional. ...lIllZ)1l1'lE1l on receipt '-- of eeli'ti"§"ied the order.
"' Out»o_f'i'he said enhanced compensation as above, 60% with 1 "*4:l""_p;i'op'o'fi,ionate interest shall be deposited . id any of the Nationalised bank of appellants choice in a Fixed Deposit for a. period of two years and balance 40% with proportionate interest shall be released in favour of the claimant. The claimant" would be e1'1i;:'t':le(i to withdraw ¢_'fi ....