Karnataka High Court
National Insurance Co. Ltd vs Sri. Laxmana on 20 October, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.3017/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.3017/2018 (MV-I)
BETWEEN:
NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE, KUNDAPURA,
THROUGH ITS REGIONAL OFFICE,
#144, SUBHARAM COMPLEX,
M.G.ROAD, BANGALORE-560001.
REP. BY ITS ASST. MANAGER
SRI. S.RAMESH.
... APPELLANT
(BY SRI. ANOOP SEETHARAM RAO, ADVOCATE)
AND:
1. SRI. LAXMANA,
AGED ABOUT 38 YEARS,
S/O MANJA,
RESIDENT OF GANGEBAILU,
KODERI, KIRIMANJESHWARA VILLAGE,
KUNDAPURA TALUK,
UDUPI DISTRICT-576201.
2. SMT. JALAJA,
MAJOR IN AGE,
W/O SRI SHEKHAR SHETTY,
RESIDENT OF HOSADU VILLAGE,
KUNDAPURA TALUK, ]
UDUPI DISTRICT-576201.
(OWNER OF LORRY NO.KA.20/4374)
... RESPONDENTS
(BY R1-SERVED, R2-NOTICE DISPENSED WITH
V/O DATED:02.07.2018)
2 MFA NO.3017/2018
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:02.12.2017 PASSED IN MVC NO.889/2014 ON THE
FILE OF THE ADDITIONAL DISTRICT JUDGE & ADDITIONAL
MACT, UDUPI (SITTING AT KUNDAPURA), KUNDAPURA,
AWARDING COMPESNATION OF RS.13,79,560/- WITH
INTEREST5 AT 6% P.A. ON RS.13,54,560/- (EXCLUDING
INTEREST ON FUTURE MEDICAL EXPENSES OF
RS.25,000/-) FROM THE DATE OF PETITION TILL THE
DATE OF PAYMENT.
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the Insurance Company challenging the judgment and award dated 02.12.2017 in MVC.No.889/2014 passed by the MACT, Udupi, (Sitting at Kundapura), Kundapura, questioning the quantum of compensation.
2. Brief facts of the case are as under:
On 27.06.2014 at about 2.10 pm., the claimant was riding his motor cycle bearing Reg.No.KA-20-V- 3 MFA NO.3017/2018 3589 from Kundapura side towards Byndoor side along with his wife in a very slow and careful manner by observing all traffic rules. When they reached near Jaladi, on N.H.66, Hemmadi Village, Kundapura Taluk, at that time a Lorry bearing Reg.No.KA-20-4374 belongs to 1st respondent and driven by its driver in a very high speed and rash and negligent manner came from Byndoor side towards Kundapura side and dashed against the claimant's motor cycle. Due to the said impact, claimant fell on the road and sustained grievous injuries all over the body. Immediately, he was shifted to KMC Hospital, Manipal, wherein he was treated as an inpatient from 27.06.2014 to 31.07.2014 and from 08.08.2014 to 13.08.2014.
3. The claim petition was filed by the appellant/claimant seeking compensation. The Tribunal has partly allowed the claim petition and awarded compensation of Rs.13,79,560/- with interest 4 MFA NO.3017/2018 at 6% p.a., from the date of petition till the date of deposit.
4. The learned counsel for the appellant/Insurance Company submitted that the compensation amount awarded by the Tribunal is excessive, which needs interference. The Tribunal has taken the monthly income of the claimant at Rs.9,000/- without therebeing any proof, which is on the higher side.
5. Respondent No.1/claimant is served, but there is no representation.
6. Heard the arguments of learned counsel for the appellant/Insurance Company.
7. The Tribunal has awarded the compensation under various heads as follows:
Injury, pain and sufferings Rs.2,50,000/-
Medical expenses Rs.5,46,573/-
Future medical expenses Rs. 25,000/-
5 MFA NO.3017/2018
Loss of earning during treatment Rs.10,500/-
Bed rest Rs. 45,000/-
Loss of future earning capacity Rs.4,92,480/-
Conveyance, nourishment and Rs.10,000/-
attendant charges
Total Rs.13,79,553/-
8. As per Ex.P.4-wound certificate and other medical records coupled with the evidence of doctor -
P.W.2, it is proved that respondent No.1-claimant sustained the following injuries:
1. Fracture right neck of femur
2. Closed right shaft of femur fracture.
3. Right superficial femur artery injury.
4. 1 X 1 X 1 cm lacerated wound over premical 3rd right leg.
As per the opinion of the doctor, injury No.3 is grievous in nature. Further, in the evidence doctor - P.W.2 also stated that he has examined the claimant under Orthopedic Unit V. (with Professor Sharath K.Rao, Unit Chief) on 19.01.2016 and assessed the disability and found the following infirmities:
a. He has I cm shortening in his right lower limb. b. He h as 0-130 degree of flexion, 0-30 degrees of abduction, 0-20 degree of adduction, 0-30 degrees of external rotation, 0-20 degrees of internal rotation movements in his right hip joint. 6 MFA NO.3017/2018 c. He has 0-30 degrees of flexion in his right knee joint.
d. He has 0-30 degrees of plantar flexion and dorsiflexion in his right ankle joint. e. He has grade IV power in his right his abductors and quadriceps muscles.
f. He has infection of the right femur with pus discharging sinus.
g. His X-ray examination revealed union of the fractures with features of infection of femur with implant in neck of femur.
9. The above said injuries are grievous in nature. Due to the above said injuries, the claimant's right leg is shortened by 1 cm. Therefore, considering the above said injuries, the compensation amount of Rs.2,50,000/- awarded by the Tribunal under the head injury, pain and suffering is on higher side and the same is required to be reduced. Accordingly, the said quantum of compensation is set aside and awarded compensation of Rs.1,00,000/- under the head injury, pain and suffering.
10. The compensation of Rs.5,46,573/-
awarded by the Tribunal under the head medical 7 MFA NO.3017/2018 expenses is as per the actual bills produced, which needs no interference. Hence, it is kept in tact.
11. The compensation of Rs.25,000/- awarded under the head future medical expenses is correct, which needs no interference. Hence, it is kept in tact.
12. The Tribunal has awarded compensation of Rs.10,500/- towards loss of earning during treatment period and Rs.45,000/- towards bed rest. The Tribunal held the notional income at Rs.9,000/- p.m., which is found to be correct. Therefore, loss of income during laid up period and medical treatment period and bed rest can be taken for a period of three months. Accordingly, compensation of Rs.27,000/- (Rs.9,000/- p.m., x 3 months) is awarded under the head loss of income laid up period and medical treatment period and bed rest.
13. The Tribunal held the percentage of disability at 28.5%. The claimant is a coolie by 8 MFA NO.3017/2018 profession. The doctor-PW.2 had stated that the claimant had suffered permanent physical disability at 57% towards right lower limb. The Tribunal taking the permanent disability at 28.5% towards the whole body granted compensation. Considering the nature of injuries sustained, the claimant had suffered fractured injuries to the right leg femur as discussed above. It is also the opinion of the doctor-PW.2 that the right leg of the claimant is shortened by 1 cm and his movement is restricted. Therefore, considering the nature of injuries sustained and as he was working as a coolie, the functional disability is to be taken into consideration as per the principles of law laid down by the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another 1. The assessment of functional disability affecting the earning capacity is not a mathematical calculation or formula, but considering the nature of injuries 1 (2011) 1 SCC 343 9 MFA NO.3017/2018 sustained and profession, the work of coolie requires more physical strength, but at the same time, the Tribunal held the disability at 28.5%, which is on the higher side and the same is reduced to 20% considering the nature of injuries sustained and the profession of the claimant. The claimant was aged 35 years as on the date of the accident and the appropriate multiplier applicable is '16'. Thus, the loss of future income due to disability is re-calculated and quantified as follows:
Rs.9,000/- x 20% x 16 x 12=Rs.3,45,600/-
Accordingly, Rs.3,45,600/- is awarded under the head loss of future income due to disability.
14. The compensation of Rs.10,000/- awarded under the head conveyance, nourishment and attendant charges, is found to be correct, which needs no interference. Hence, it is kept in tact. 10 MFA NO.3017/2018
15. The Tribunal has not awarded compensation under the head loss of amenities. Accordingly, compensation of Rs.30,000/- is awarded under the head loss of amenities.
16. Thus, in all the appellant/claimant is entitled to the compensation as follows:
Injury, pain and Rs.1,00,000/-
sufferings
Medical expenses Rs.5,46,573/- Kept in tact
Future medical expenses Rs. 25,000/- Kept in tact
Loss of earning during laid Rs. 27,000/-
up period and medical
treatment period and bet
rest (Rs.9,000/- p.m., x 3
Months)
Loss of future earning Rs.3,45,600/-
capacity due to disability
Conveyance, nourishment Rs. 10,000/- Kept in tact
and attendant charges
Loss of amenities Rs. 30,000/-
Total Rs.10,84,173/-
17. Thus, the appellant/claimant is entitled to total compensation of Rs.10,84,173/- as against Rs.13,79,553/- awarded by the Tribunal along with 11 MFA NO.3017/2018 interest at the rate of 6% per annum from the date of petition till the date of realization.
18. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed-in-part.
The impugned judgment and award dated 02.12.2017 in MVC.No.889/2014 passed by the MACT, Udupi, (Sitting at Kundapura), Kundapura, is modified to the extent that the appellant/claimant is entitled to total compensation of Rs.10,84,173/- along with the rate of interest at 6% per annum from the date of petition till the date of realization.
No order as to costs.
The amount, if any, deposited by the Insurance Company shall be transmitted to the Tribunal along with TCR and copy of this order forthwith. 12 MFA NO.3017/2018
The appellant/claimant is not entitled for interest for the delay period of 30 days in filing the appeal.
Sd/-
JUDGE PB