Karnataka High Court
Sri Rudrappa K R vs Sri S K Ramesh on 10 October, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF OCTOBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO.8576/2012
BETWEEN:
Sri Rudrappa K.R.
S/o Ramanna
Aged about 41 years,
Residing at No.29,
Nanjappa Building, Pipe Line Road,
T.Dasarahalli, Bangalore-57
Permanent Address:
Sri Ranganatha Nilaya
Behind Veerabhadreshwara
High School, Kankakatte,
Arasikere Taluk,
Hassan District. ...Appellant
(By Sri M.Gopalakrishna, Advocate)
AND:
1. Sri S.K.Ramesh
S/o Kotrappa
Major in age
Residing at Smashetty Halli,
Arasikere Taluk,
Hassan District 573 103
2. National Insurance Company Ltd.,
2
No.144, Subharam Complex,
M.G.Road, Bangalore -560001
Rep. by its Manager ... Respondents
(By Sri A.N.Venkatesh, Adv. R-2,
Notice to R-1 is dispensed with v/o dated
25.09.2013)
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 14.08.2012
passed in MVC No.3170/2011 on the file of Member,
MACT, IV Additional Judge, Court of Small Causes,
Bangalore City, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
This Appeal coming on for Orders this day, the
Court delivered the following:
JUDGMENT
Claimant is in appeal seeking for enhancement of compensation not being satisfied with the quantum of compensation awarded by MACT, Bangalore, in MVC No.3170/2011 dated 14.08.2012.
2. I have heard the arguments of learned advocates appearing for the parties and perused the records secured from Tribunal. There is no dispute with regard to occurrence of accident, injuries sustained by 3 claimant and issuance of policy to the offending vehicle, which was in force as on the date of accident. Hence, these are facts are not delved upon in this appeal as it would be repetition of facts.
3. Tribunal on appreciation of entire evidence tendered by the parties has awarded a total compensation of Rs.1,57,670/- under the following heads:
Sl.
Heads Amount
No.
1 Future loss of earnings Rs. 60,480/-
(permanent disability)
2 Medical expenses Rs. 48,208/-
3 Loss of income during
treatment Rs. 9,000/-
4 Attendant charges Rs. 6,000/-
5 Nourished food Rs. 5,000/-
6 Conveyance charges Rs. 2,000/-
7 Future medical expenses Rs. 15,000/-
TOTAL Rs.1,57,670/-
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4. It is the contention of Sri Gopalkrishna, learned counsel appearing for claimant that Tribunal ought to have taken the whole body disability at 40% and assessed the compensation towards 'loss of future income'. He would also contend that Tribunal ought to have awarded 'loss of amenities', which has been not awarded and as such, he seeks for modification of the judgment and award in question. He would also pray for enhancement of compensation under other heads.
5. Per contra, Sri A.M. Venkatesh, learned counsel appearing for insurer - respondent No.2 would support the judgment and award in question and draws the attention of Court to the evidence of doctor, which has been discussed in detail by Tribunal to discard the said evidence and as such, he submits that compensation awarded by Tribunal is just and reasonable and it does not call for any enhancement.
6. Having heard the learned Advocates appearing for the parties and on perusal of judgment 5 and award in question as also doctor's evidence, it would clearly indicate that version of doctor is highly exaggerated. A perusal of evidence of doctor P.W.2 would clearly indicate that he is not the doctor who has treated the claimant and at the time of assessing the disability of claimant on 10.01.2012, he has not perused the old x-ray reports, he has not seen the follow up records and he has not examined the report of radiologist as admitted by him in his cross-examination dated 02.02.2012. While assessing the particular limb disability doctor has not taken into consideration the ALMANCO MANUAL for assessing particular limb disability visa-viz, whole body disability. While assessing left upper limb disability doctor has assessed it at 30% by taking into consideration the difficulty of claimant in putting on clothes, combing his hair and doing his normal work, as also ablution of Indian style and he has assessed the disability to an extent of 20%. While assessing whole body disability, it is particular limb disability which is taken into consideration and 1/3rd of 6 it would be whole body disability as per ALMANCO MANUAL. As such, Tribunal has rightly discarded the evidence of P.W.2 - doctor for reasons discussed in detail as to why the said evidence of doctor cannot be taken into consideration vide paragraph 13 of judgment and award in question. However, taking into consideration other medical records available before it, Tribunal has taken the whole body disability at 8%.
7. It is no doubt true that claimant has stated that he is working as a Writer in an estate, not only in his deposition but also in his claim petition. However, in the claim petition he has nowhere stated that he is working as supervisor. Taking into consideration the injuries sustained by claimant i.e., fracture of left side of forehead, fracture of left clavicle bone and fracture of sub-trochameteric with fracture femur left, whole body disability can be construed at 10% instead of 8% as opined by the Tribunal. Doctor - P.W.2 has admitted in his cross-examination dated 02.02.2012 that a person 7 with this kind of injury can carry on writing work in a sitting posture, which is the avocation of claimant.
However, considering the nature of injuries and the fact that there is malunion of clavicle bone, whole body disability can be construed at 10% as noted hereinabove. Thus, taking into consideration the whole body disability at 10% and income of the claimant at Rs.4,500/- per month compensation that becomes payable towards 'loss of future earning' would be as under:
4500 x 10% = 450 x 12 x 14 = 75,600/-
Less: Awarded by Tribunal = 60,480/-
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Additional / enhanced compensation = 15,220/-
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8. Though claimant has sustained three
fractures Tribunal has awarded a meager compensation of Rs.12,000/- towards 'pain and suffering' and I am of the considered view that an additional compensation of Rs.18,000/-, if awarded it would meet the ends of justice and accordingly, it is hereby awarded. 8
9. In so far as 'loss of amenities' is concerned Tribunal having accepted that claimant had sustained injuries as reflected in wound certificate, Ex.P-7 and having also accepted that there is certain amount of disability (10% by this court) Tribunal has not awarded any compensation towards 'loss of amenities'. On account of these injuries and there being malunion of fracture, I am of the considered view that a sum of Rs.25,000/- if awarded towards 'loss of amenities', it would meet the ends of justice. Accordingly, it is hereby awarded.
10. Insofar as compensation awarded by Tribunal under other heads is just and reasonable and it does not call for any enhancement. Thus, in all claimant would be entitled to an additional compensation of Rs.58,220/-.
11. For the reasons aforestated following order is passed:
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ORDER i. Appeal is allowed in part.
ii. Judgment and award passed by MACT, Bangalore, in MVC No.3170/2011 dated 14.08.2012 is hereby modified and an additional compensation of Rs.58,220/-
is hereby awarded, which shall carry interest @ 6% p.a. from the date of petition till date of deposit or payment, whichever is earlier.
iii. Respondent No.2 - insurer is directed to deposit the compensation with interest before jurisdictional Tribunal within an outer limit of 4 (four) weeks from the date of receipt of certified copy of this order.
iv. Out of compensation awarded hereinbefore 50% shall be kept in any Nationalized Bank or Scheduled Bank of claimant's choice for a period of three years and remaining 50% is ordered to be 10 released in favour of claimant on proper identification.
v. Registry to transmit the records to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE DR