Karnataka High Court
Mallikarjun S/O Kantayya Swamy vs Mehraj Bihari S/O Shayamshuja & Anr on 20 September, 2013
Bench: K.Bhakthavatsala, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 20th DAY OF SEPTEMBER 2013
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MRS JUSTICE B.S.INDRAKALA
MISCELLANEOUS FIRST APPEAL No.30472/2013 (MV-DB)
BETWEEN:
1. Mallikarjun
S/o Kantayya Swamy,
Age: 36 years,
Occ: Agriculture & Milk Vendor,
R/o Village Janti,
Tq: Bhalki, Dist: Bidar,
Pin Code No. 585 401. ... APPELLANT
(By Sri. Babu H. Metagudda, Adv.)
AND:
1. Mehraj Bihari
S/o Shayamshuja,
Age: Major, Occ: Business,
R/o Samaj Mandir Shiradhon,
Tq: Khandar, Dist: Nanded in M.S.
(owner of TATA Indica Car No. MH-04/DJ-7455)
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2. The Manager,
National Insurance Co. Ltd.
Branch Office Anupam Complex,
Basweshwar Chowk,
G.G. Road, Bidar -
Through its Divisional Manager,
Division Office, Gulbarga.
Pin Code No. 585 101. ... RESPONDENTS
[Sri S.S. Aspalli, Adv. for R-2; notice to R-1 dispensed with)
...
This Appeal is filed under Section 173(1) of Motor
Vehicles Act against the judgment and award dated
29.12.2012 passed in MVC No. 23/2012 on the file of the
Fast Tract-II and Additional MACT Bidar Camp at Bhalki,
partly allowing the claim petition and seeking
enhancement of compensation.
This appeal coming on for Admission this day, Dr.
Bhakthavatsala J., delivered the following:
JUDGMENT
Appellant/claimant in MVC No. 23/2012 on the file of the Fast Track Court-II and Additional MACT, Bidar Camp at Bhalki is before this Court under Section 173(1) of the Motor Vehicles Act, 1988 seeking enhancement of compensation.
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2. Learned Counsel for the appellant submits that the accident occurred on 3.8.2011; the appellant/claimant was 35 years and doing agriculture, milk vending and earning Rs.10,000/- per month; he sustained grievous injury to the right leg and as a result of which there was a compound fracture of right femur middle 1/3rd shaft; P.W.2 - Dr. Anand Jabshetty has deposed that the claimant has 20.5% disability to the whole body but the Tribunal has fixed permanent disability on the lower side at 10%. He prays for enhancement of compensation towards loss of future earning and other heads.
3. Learned Counsel for respondent No.2/insurance company submits that the Tribunal has awarded adequate compensation and there is no good ground for enhancement.
4. Perused the impugned order.
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5. In support of the case of the claimant, he got himself examined as P.W.1 besides examining the doctor Anand Jabshetty as P.W.2 and got marked Exs.P.1 to P.10. Respondents have not adduced any evidence.
6. As per the wound certificate, the claimant sustained in all four injuries out of which injury No.1 is grievous in nature and injury Nos. 2, 3 and 4 are simple in nature. According to the discharge card issued by Jabshetty Ortho Care Centre at Bidar, the claimant was treated as inpatient from 4.8.2011 to 12.9.2011. As per Ex.P.7 - Disability Certificate issued by P.W.2, on physical examination of the claimant's right hip/knee flexion extension and deformity over clavicle region, shortening of left leg by ½ an inch and permanent partial disability to the right leg by 41% and total permanent disablement at 20.5%. The Tribunal has fixed permanent disablement at 10% to the whole body. Keeping in view the nature of injury and disability, permanent disablement can be safely 5 fixed at 50% to the whole body. Since the claimant had sustained fracture of right leg, it requires treatment and rest atleast for a period of 3 months. Therefore, he is entitled for loss of earning for the period of 3 months.
7. The accident has occurred in the year 2011. The claimant is an agriculturist. His income can be safely be fixed at Rs.6,000/- per month instead of Rs.3,000/- per month fixed by the Tribunal and permanent disablement at 10% to the whole body. Applying multiplier of 16, the Tribunal has awarded compensation as under:
Pain and suffering Rs. 20,000/- Loss of amenities Rs. 10,000/- Medical expenses Rs. 1,01,000/- Food and nourishment Rs. 10,000/- Attendant charges Rs. 5,000/- Loss of future earning Rs. 57,600/- Total Rs.2,03,600/-
8. In our view, the claimant is entitled for compensation as under:
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Pain and suffering Rs. 25,000/-
Medical expenses Rs.1,01,000/-
Loss of earning during the treatment Rs. 18,000/-
period (Rs.6,000/- x 3)
Loss of future earning Rs.1,72,800/-
(Rs.6,000/- x 15 x12 x 16)
Attendance, conveyance, special died Rs. 15,000/-
and incidental expenses
Total Rs.3,31,800/-
Less compensation awarded by the Rs.2,03,600/-
Tribunal
Balance Rs.1,28,200/-
Thus the appellant/claimant is entitled for compensation of Rs.1,28,000/-.
9. In the result, we pass the following:
ORDER
i) Appeal is partly allowed holding that the appellant/claimant is entitled for additional compensation of Rs.1,28,200/- with costs and interest at the rate of 6% per annum from the date of petition till realisation and proportionate costs.7
ii) Respondent No.2 is directed to deposit the additional compensation amount with the Tribunal, within a month from the date of receipt of a copy of this order.
iii) Out of the enhanced compensation amount a sum of Rs.50,000/- shall be kept in fixed deposit in the name of the claimant for a period of 5 years with liberty to draw the periodical interest that accrues on the deposit.
Accordingly, the impugned judgment and award are modified.
Sd/-
Judge Sd/-
Judge Nsu/-