Karnataka High Court
K Thippamma vs Shree Ramu Transport on 12 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.20660/2008 (MV)
BETWEEN:
K.Thippamma,
W/o.Kenchalingappa,
Age 32 years,
Occ.: Tailoring & Agriculture,
R/o.Tayakanahalli,
Kudligi Taluk,
Bellary District.
...Appellant
[By Sri Lokesh Malavalli, Advocate]
AND:
1. Shree Ramu Transport,
A/10, Madhuban Apartment,
Shivaganga Nagar,
Amarnath Estate, Thane,
Maharastra,
By its Manager,
2. The Divisional Manager,
New India Assurance Co. Ltd.,
Shamanur Building,
Chamarajpet, Davanagere.
...Respondents
[By Sri.P.R.Bhagoji For Sri.Laxman B.Mannoddar, Advocate]
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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 05/01/2008 passed in MVC No.576/2004 on
the file of Civil Judge (Sr.Dn.) & Addl. MACT, Ranebennur,
partly allowing the claim petition for compensation and
seeking enhancement.
This miscellaneous first appeal coming on for
admission, this day, the Court delivered the following: -
JUDGMENT
This is a claimant's appeal for enhancement of compensation contending that Tribunal has awarded very less compensation in MVC No.576/2004.
2. The facts in brief, leading to filing of this appeal are as under:
On account of a road traffic accident that occurred on 28.07.2004 and injuries sustained in the said accident appellant herein filed a claim petition under Section 166 of the Motor Vehicles Act seeking payment of compensation of `.6,00,000/- contending interalia that she along with others was proceeding in KSRTC bus bearing its registration No.KA- :3:
05/B-7854 and at about 2:30 a.m. the lorry bearing registration No.MH-05/K-8801, driven in a rash and negligent manner, dashed against the bus resulting in the said vehicle falling into a gorge and on account of same claimant and other inmates of the bus is said to have sustained injuries. As such she sought for payment of compensation.
3. Respondents appeared and filed statement of objections denying the averments made in the claim petition. On the basis of the pleadings of the parties, issues came to be framed and on appreciation of the evidence, Tribunal allowed the claim petition in part and awarded a total compensation of `.76,800/-. Being dissatisfied with the amount, claimant is in appeal seeking for enhancement of compensation.
4. I have heard the arguments of Sri.Lokesh Malavalli, learned counsel appearing for the appellant and Sri.P.R.Bhagoji learned counsel appearing on behalf of Sri.Laxman B. Mannoddar, for respondent No.2-Insurance Company.
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5. Notice to respondent No.1 has been dispensed with by order dated 11.10.2012. By consent of both the learned advocates appearing for the parties, appeal is taken up for final disposal, since it is pending for admission from past four years and the accident is of the year 2004.
6. It is the contention of the learned advocate Sri.Lokesh Malavalli, appearing for the appellant that Tribunal erred in not considering the fact that claimant had lost vision in her right eye and to evidence this fact, she had produced material evidence namely wound certificate and also the discharge summary, which was not taken note of by the Tribunal and as such not awarding compensation towards loss of vision has resulted in great miscarriage in administration of justice. He would further submit that compensation awarded under all other heads is on the lower side and as such, he seeks for enhancement of compensation.
7. Per contra, Sri.P.R.Bhagoji learned advocate appearing for 2nd respondent-Insurance Company would support the judgment and award passed by the Tribunal. He :5: would also contend that claimant failed to examine the ophthalmologist to demonstrate as to the extent of damage caused to the eye and in the absence of any medical evidence, no inference can be drawn with regard to loss of vision. As such he seeks for dismissal of the appeal.
8. Having heard the learned advocates appearing for the parties and on perusal of the judgment and award passed by the Tribunal, it can be noticed that immediately after the accident on 08.07.2004 in the midnight at 2:30 a.m., the claimant and other injured persons were treated at Harihar and they were administered First-Aid and on account of glass-pieces having been struck in the eyes of the claimant, she was shifted to C.G.Hospital at Davanagere. She was shifted to the said hospital on the same day and was inpatient up to 16.07.2004. As evidenced from Ex.P14- discharge summary, at the time of the administering the First-Aid to the claimant at General Hospital, Harihar, the wound certificate came to be issued, whereunder four injuries have been noticed, injuries relating to eyes read as under: :6:
"Injury to both eyes, loss of vision and function of right eye due to conceal tare"
9. In fact, the claimant who has entered witness box has stated that on account of the fracture to the hand POP was put on her and on 23.07.2004 and she was also operated for rectifying the injuries sustained to the right eye and she was further operated on 29.07.2004 relating to eye injury. She has also stated that she was informed by the Doctor that her vision in the right eye is lost forever and there is no visibility in the right eye. The discharge summary-Exs.P15 and P16 made available by learned counsel for claimant during course of argument would clearly go to indicate that claimant was inpatient at C.G.Hospital from 23.07.2004 to 29.07.2004. Ex.P17 would reflect that she was treated as an outpatient on 29.05.2007. Tribunal has not discarded the wound certificate and the discharge summary produced by the claimant, which are at Exs.P13 to P17. Claimant has produced the disability certificate at Ex.P19, on the basis of which the Tribunal has proceeded to assess the loss of future :7: income based on the disability assessed by the Doctor-PW13 which was with reference to disability sustained to shoulder.
10. A perusal of the award in question, does not reflect that there is any reference to the injuries sustained by the claimant to the eye and consequential loss of vision. This Court cannot loose sight of the fact that claimant is an illiterate, rustic village lady and not possessing any worldly knowledge. As such, this Court while administering the justice has to keep in mind the strata from which this particular claimant has come from and the manner and mode in which they seek compensation. Without understanding the implication of non-examining the Doctor or a eye specialist as the case may be who treated for loss of vision would result in a award of abysmally low compensation as is evident in the instant case. Though on facts, the injuries would be of such a nature, which would entitle them for just and reasonable compensation but for lack of proper evidence they may be deprived of such just compensation. It is no doubt in the instant case, the claimant has not examined the ophthalmologist or an eye surgeon to establish the extent of :8: disability suffered on account of loss of vision. On the date of accident i.e., on 08.07.2004, claimant was treated at Government Hospital, Harihar and on examination of the claimant, the Doctor has opined that there is injury to both eyes. The loss of vision and function of right eye is due to conceal tare. The evidence of the claimant, which is to the effect that she was operated twice on 23.07.2004 and 29.07.2004 for injuries sustained to the right eye, has remained unchallenged. The fact of claimant having sustained injury to the eye and consequentially loosing vision in right eye is also established from the discharge summary- Exs.P15 and P16. Though these documents have been accepted by the Tribunal, the award in question does not find any discussion on this and as such Tribunal committed a serious error in ignoring the rightful claim of the claimant for payment of compensation towards loss of vision.
12. In view of the same, this Court having re- appreciated the evidence, is of the considered view that claimant would be entitled for compensation towards loss of vision in the right eye and considering the avocation with :9: which the claimant was carrying on, as also her age, this court is of the view that the disability which can be considered for the purpose of computation of loss of future income would be 40%, namely this disability is assessed on the basis of the disability found under the schedule to the Workman's Compensation Act. It is no doubt true under the W.C. Act, it would be the disability vis-à-vis loss of earning capacity and in the instant case a marginal reduction can be made towards whole body disability by reducing it to 20% and assessing the loss of income. On the basis of the evidence tendered by the claimant and accepted by the Tribunal, while computing the loss of future earnings said income can be construed for purpose of computation. Hence, compensation that becomes payable towards loss of future earnings on account of loss of vision in the right eye, by considering the disability to the whole body at 20% would be as under:
`.3,000/- x 20% = 600/-.
`.600 x 12 x 17 = `.1,22,400/-
13. The Tribunal has awarded a sum of `.28,800/- and the same requires to be enhanced and it is to be held that the claimant would be entitled for an additional : 10 : compensation of `.93,600/-. Considering the fact that before the Tribunal, claimant has not produced any material to show the actual expenses incurred for surgical operations, the Tribunal has awarded compensation under various heads, which is marginally on the lower side and as such this Court is of the considered view that under all other heads if an additional global compensation of `.15,000/-, if awarded it would meet the ends of justice. Accordingly, same is awarded.
14. For the reasons stated herein above, following order is passed:
ORDER
i) Appeal is hereby allowed.
ii) Judgment and award passed by the Tribunal is modified and it is held that claimant would be entitled to a sum of `.1,22,400/-
towards loss of future income, which is substitution to the award passed by the Tribunal and an additional sum of `.15,000/- is awarded under other heads.
Thus, in all the claimant is entitled for an additional compensation of `.1,08,600/-, which shall carry interest @ 6% p.a. from the : 11 : date of petition till the date of payment or deposit, whichever is earlier.
iii) Respondent No.2 shall deposit the enhanced compensation with interest before the Tribunal within six weeks from the date of receipt of a copy of this order.
iv) No costs.
Sd/-
JUDGE
Vnp*