Karnataka High Court
Channabassappa S/O Dharmaraya Mali ... vs M/S Prabhudev Stone Crushing Unit Anr on 1 April, 2013
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 1ST DAY OF APRIL, 2013
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
MFA No.32167/2011(MV)
BETWEEN:
CHANNABASSAPPA
S/O DHARMARAYA MALI PATIL
AGE: 39 YEARS
OCC: AGRICULTURE & BUSINESS
R/O H.No.9-58777/60
DEVI NAGAR, ALAND ROAD
GULBARGA
...APPELLANT
(BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)
AND:
1. M/S PRABHUDEV STONE CRUSHING UNIT
REPRESENTED BY PRABHUDEV
(OWNER OF THE LORRY)
R/O SRINIVAS SARADAGI CROSS
SEDAM ROAD, GULBARGA
2. THE MANAGER
ROYAL SUNDARAM ALLIANCE
INSURANCE COMPANY LTD.,
SUNDARAM TOWERS
45 AND 46 WHITES ROAD
CHANNAI - 600014 ... RESPONDENTS
2
(BY SRI SUDARSHAN M., ADVOCATE FOR R2,
NOTICE TO R1 DISPENSED WITH V/O DT. 1.4.2013)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 30.06.2011 PASSED IN MVC No.200/2010 ON
THE FILE OF THE PRL. CIVIL JUDGE (SR. DN.) & MACT
GULBARGA, PARTLY ALLOWING THE CLAIM PETITION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The claimant is in appeal seeking enhancement of compensation.
2. The finding of the Tribunal regarding occurrence of the accident, involvement of the vehicle owned by the first respondent, validity of the insurance cover issued by the second respondent are not brought in question either by the insured or insurer. The claimant is seeking enhancement of compensation.
3. From the records made available, it is evident, the claimant has established he has suffered fracture of tibia, consequent to which, despite treatment bone is not well united and it has resulted in physical impairment of 3 18%. The claimant through his ocular testimony as PW1 has proved he had suffered pain and agony and despite treatment physical disability is of permanent nature. PW2- Dr. S.B.Kamareddy has testified to his version, the Tribunal has also accepted it. But the Tribunal has committed an error by substituting its own opinion regarding percentage of physical disability discarding medical evidence, which is improper. Therefore, if we go by medical evidence, it shows he has physical impairment of 18% of whole body. For the purpose of computation, that shall be the basis.
4. He was an agriculturist and had regular income. The Tribunal has accepted his version but took his income at Rs.5,000/- per month. The appellant's counsel seeks re-fixation of it to atleast Rs.6,000/- which I feel may not be proper as the Tribunal has taken realistic view in the absence of any other specific evidence. Therefore, Rs.5,000/- would be the monthly income and it will be Rs.60,000/- per annum. He was aged 45 years and the 4 multiplier applicable would be 14 which gives Rs.1,51,200/- towards loss of future income consequently, award under this head is enhanced from Rs.1,35,000/- to Rs.1,51,200/-. Towards pain and suffering, the Tribunal has awarded Rs.30,000/- which is on the lower side. The award under this head is increased to Rs.50,000/-. The Tribunal has awarded Rs.14,300/- towards medical expenses and Rs.5,000/- towards attendant, nursing, extra nourishment charges and conveyance. While confirming refund of Rs.14,300/-, towards medical expenses, towards incidental expenses, he would be entitled for another Rs.15,000/-. Towards loss of income during period of treatment, the Tribunal has awarded only Rs.2,000/- which is very low. Under this head, he will be entitled for Rs.20,000/- for four months at the rate of Rs.5,000/- per month. Towards loss of amenities, the Tribunal has awarded Rs.10,000/- which is also on the lower side. Under this head, he will be entitled to Rs.35,000/-. In all, the claimant is entitled to the following compensation: 5
1 Pain and Suffering Rs.50,000/- 2 Medical expenses & attendant, Rs.34,300/-
nursing, extra nourishment charges and conveyance 3 Loss of future earnings Rs.1,51,200/- 4 Loss of income during Rs.20,000/-
treatment period 5 Loss of amenities Rs.35,000/-
Total Rs.2,90,500/-
The award passed by the Tribunal is enhanced from Rs.196,300/- to Rs.2,90,500/-.
The appeal is allowed in part. The enhanced compensation shall carry interest at the rate fixed by the Tribunal.
The amount in deposit is ordered to be transmitted to the Tribunal.
Sd/-
JUDGE NB*