Karnataka High Court
Kumari Savita D/O Mallappa Magadum vs The Managing Director Ksrtc on 17 January, 2013
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17TH DAY OF JANUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
MISCELLANEOUS FIRST APPEAL No.5221/2007 (MV)
BETWEEN:
KUMARI SAVITA D/O MALLAPPA MAGADUM
AGED 12 YEARS,
SINCE MINOR REP. BY NATURAL GUARDIAN
FATHER MALLAPPA KALLAPPA MAGADUM
MAJOR, OCC:COOLIE, R/O MANGASULI,
AHTANI TQ., BELGAUM DIST. ...APPELLANT
(By Shri.Y.Lakshmikant Reddy, Advocate)
AND:
THE MANAGING DIRECTOR, KSRTC
REP. BY ITS NEWLY CONSTITUTED NORTH WEST
KARNATAKA ROAD TRANSPORT CORPORATION
CENTRAL OFFICE, HUBLI
THROUGH ITS DIVISIONAL CONTROLLER,
NWKRTC, BELGAUM. ...RESPONDENT
(By Shri.Ravi V.Hosmani, Advocate)
THIS MFA FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGEMENT AND AWARD DATED 17.10.2006 PASSED IN MVC
NO.814/2004 ON THE FILE OF PRL. CIVIL JUDGE, SR. DN. &
ADDL. MACT, BELGAUM, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
:2:
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING: -
JUDGMENT
This appeal is filed against the common judgment in M.V.C.Nos.813/2004 and connected cases dated 17.10.2006 whereby the appellant is the claimant in M.V.C.No.814/2004. The Tribunal has awarded global compensation of Rs.50,000/- on account of the injuries sustained by her in a motor vehicle accident along with other passengers who were travelling in a tractor-trailer bearing No.KA-23/T 967, 968 and 969.
2. The manner of accident and the liability of the 2nd respondent-Corporation are not denied. The appellant has filed this appeal seeking enhancement of compensation only on the ground that the Tribunal has awarded global compensation of Rs.50,000/- taking into consideration the medical evidence which indicates that the disability sustained by the appellant is at 45%.
3. Learned counsel for the appellant submits that the appellant sustained fracture of middle shaft femur left as :3: per the X-ray report. She has undergone treatment for about 19 days on account of the fracture injury and that her left leg is shortened by ½ inch. Therefore, she cannot bend the knee joint completely. The award passed by the Tribunal is grossly inadequate when compared to the injuries sustained by the appellant.
4. Per contra, learned counsel for the respondent- Corporation submits that as per Ex.P.24, Medical Certificate issued by CHC Hospital, Athani, the appellant sustained only two injuries namely I)tenderness over right thigh and ii) multiple small abrasions over chest. Nowhere it is mentioned that the appellant complains of pain to the left leg resulting in fractural injuries and the question of shortening of left leg by ½ inch does not arise when there is no injury to left leg at all. It is further submitted that the evidence of PW-10 who issued the disability certificate cannot be believed for the reason that he has not treated the appellant. He has only issued the disability certificate basing on the X-ray report and film - Ex.P.78 and 79. Learned counsel for the respondent :4: further contended that Ex.P.78 and Ex.P.79 - X-ray report and film may not relate to the appellant as she has not complained of pain in left leg.
5. The Tribunal has discussed the medical evidence at page 21 of the award and came to the conclusion that the appellant failed to examine the doctor who had actually treated the appellant for the injuries sustained in the accident and disbelieved the evidence of PW-10 regarding the percentage of disability of the appellant and awarded global compensation of Rs.50,000/-. If really the appellant had sustained fracture injury to middle shaft femur left, she would have complained pain over the same before the Medical Officer who initially treated her at CHC Hospital, Athani. As per Ex.P.24, the appellant sustained only tenderness over the right thigh and multiple abrasion over the chest. It is not known as to how she sustained fracture of middle shaft femur left. The Medical Officer attached to the CHC is the competent Medical Officer to speak about fracture of middle shaft of left femur. As the appellant had failed to examine the said doctor, the :5: Tribunal has disbelieved the evidence of PW-10 who gave the disability certificate only basing on the X-ray report. The appellant did not choose to examine the Medical Officer, Government Hospital, Sangli, where the X-ray had been taken, to prove the fracture of middle shaft femur left. Considering the above facts and circumstances, the Tribunal has rightly disbelieved the medical evidence produced by the appellant with regard to the percentage of disability sustained by her and about the fracture of the left leg.
6. However, the appellant being aged 10 years sustained some fatal injuries in the accident. It is therefore just and reasonable to award another sum of Rs.10,000/- as global compensation in addition to Rs.50,000/- awarded by the Tribunal.
6. The appeal is therefore allowed in part modifying the judgment and award dated 17.10.2006 in M.V.C.No.814/2004 on the file of the Prl. Civil Judge (Sr.Dn.) and Addl. MACT, Belgaum. The respondent is :6: directed to deposit the enhanced compensation of Rs.10,000/- with interest at 6% p.a. within two months from the date of receipt of copy of this order.
The appellant is entitled to withdraw the enhanced compensation soon after the deposit is made.
(Sd/-) JUDGE Jm/-