Karnataka High Court
Sri. V M Kumaraswamy vs Sri. S G Natarajulu on 6 March, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NO. 3166/2011(MV)
BETWEEN:
Sri.V.M.Kumaraswamy,
S/o Mahadevappa,
Aged about 31 years,
R/o Veeranapura,
Nanjadevanapura Post,
Chamarajanagar Taluk and Post.
And also residing at C/o Nagesh,
No.260, 7th Cross,
II Stage, Hebbal,
Mysore-17. ... Appellant
(By Smt.Suma Kedilaya, Advocate for
Sri.V.Padmanabha Kedilaya, Advocates)
AND:
Sri.S.G.Natarajulu,
S/o Govindarajalu-deleted
1. S.A.Zakeer Hussain,
S/o M.A.Ameer Jan,
Aged about 51 years
R/o No.40, Konteenagar,
Satyamangala, Periyar District
Tamil Nadu.
2
Represented by
S.G.P.Holder R.Nanjappa,
S/o Rachauaiah, aged 52 years,
No.787, 12th Cross, 7th Main,
Kamakshi Hospital Road,
Mysore.
(owner of the vehicle No. KA 1 AD 2444)
2. National Insurance Co. Ltd.,
Branch Office, Gobichattipalyam,
Tamilnadu. ... Respondents
(By Sri.L.Sreekantha Rao, Advocate for R-2;
R-1 notice dispensed with)
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 6.4.2010
passed in MVC No.1066/2006 on the file of VI
Additional District Judge, Mysore, allowing the claim
petition for compensation and seeking enhancement of
compensation.
This Appeal coming on for order this day, the
Court delivered the following:
JUDGMENT
This is a claimant's appeal seeking for enhancement of compensation on the ground that Tribunal has awarded very less compensation vide its judgment and award dated 06.04.2010 in MVC No. 1066/2006.
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2. Heard Smt.Suma Kedilaya appearing on behalf of Sri Padmanabha Kedilaya and Sri L Sreekanta Rao, learned Advocate appearing for respondent-2. Notice to respondent-1 has been dispensed with by order dated 07.02.2012. by consent it is taken up for final disposal.
3. Accident in question and coverage of insurance to the offending vehicle at the time of accident by issuance of policy - Ex.R-1 are facts which are not in dispute. Hence, they are not delved upon in this appeal.
4. It is the contention of Smt. Suma Kedilaya, learned Advocate appearing for appellant-claimant that on account of amputation of right toe and fracture of 5th metatarsal of right foot, claimant is not able to sit with crossed legs and unable to discharge his normal duties and as such she contends that Tribunal ought to have awarded compensation towards loss of future earnings by taking disability at 30% and income at ` 4,000/- per month. She also submits that multiplier ought to have been taken at 18 instead of 17 and as such compensation requires to be enhanced under all heads.
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5. Per contra, Sri Sreekanta Rao, learned Advocate appearing for respondent-2 would support the judgment and award passed by the Tribunal and seeks for rejection of appeal by contending that Tribunal has awarded just and reasonable compensation.
6. Wound certificate at Ex.P-4 would indicate that claimant had suffered fracture at the base of 5th metatarsal right foot. On account of injury of great toe gangrene had developed and same was amputated and it is stated that said injuries are grievous in nature. P.W.2-Doctor who was examined by claimant has corroborated this fact. It is also in evidence that claimant is unable to sit with his crossed legs and his right foot has shrunk. Doctor -P.W-2 has opined that there are scars of skin grafting and there is no sense of touch in the said toe and as such he has assessed right limb disability at 42%. Tribunal has taken disability at 10% to the whole body which is marginally on the lesser side and in view of Doctor's evidence that particular limb disability is at 42% whole body disability would be at 12%. Accordingly, 5 same is taken for the purpose of re-computation of compensation.
7. Accident is of the year 2006 and considering the nature of avocation of claimant namely, being that of driver of Compressor, this Court is of the considered view that same being skilled job, income which can be safely held to be reasonable income that claimant was earning at the undisputed point of time would be `.4,000/- and as such same is taken into consideration. Perusal of the award would indicate that Tribunal has taken multiplier of 17 and as held in SARLA VERMA vs DELHI TRANSPORT CORPORATION reported in (2009)6 SCC 121) for the age group 15-25, appropriate multiplier to be adopted would be 18 and undisputedly claimant being 25 years of age as on date of accident, multiplier of 18 is adopted. Accordingly, compensation awarded towards loss of future earning is re- assessed herein below:
12% of 4,000/- is 480 x 12 x 18 = ` 1,03,680/-6
Tribunal has awarded ` 61,200/- and same requires to be deducted and when so deducted, additional compensation that would be payable is ` 42,480/- .
8. On account of gangrene having been developed because of the injury to great right toe came to be amputated and it is corroborated by evidence of Doctor - P.W.2 as also medical records available as per Ex.P-6 - Discharge Card, Ex.P-73 - case sheet and Ex.P-74 - Discharge Certificate which has been taken note of by Tribunal while considering nature of injury and amputation of right toe. This court is of the considered view that compensation awarded towards pain and suffering requires to be enhanced marginally and as such additional sum of ` 10,000/- is awarded. It is also noticed that Tribunal has erred in not awarding any compensation under loss of amenities and as such, `.30,000/- is awarded towards 'loss of amenities'.
9. Tribunal has awarded a sum of ` 11,300/- on account of the fact that claimant was hospitalized for a period of 43 days and evidence of claimant would indicate 7 that he was advised rest thereafter. Thus, taking into consideration nature of injuries and number of days of hospitalization, claimant would be entitled for loss of income for a period of 4 months. Since, this Court has taken income of claimant at ` 4,000/- per month and compensation towards loss of income during laid up period for four months would be ` 16,000/-. Since Tribunal has awarded Rs.11,300/- or Rs.12,000/- by rounding it off, additional compensation towards loss of income payable for laid period would be ` 4,000/-. Thus, in all, claimant would be entitled to total additional compensation of ` 86,480/-.
Loss of future earning - ` 42,480/-
Pain and suffering - ` 10,000/-
Loss of amenities - ` 30,000/-
Loss of income during
laid up period - ` .4,000/-
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Total: ` 86,480/-
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10. For the reasons aforesaid, following order is passed.
(1) Appeal is allowed in part;
(2) Compensation awarded by Tribunal is hereby modified and additional compensation of ` 86,480/- 8
is awarded which shall carry interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
(3) It is made clear that claimant would not be entitled for interest for the delayed period of 240 days. (4) Respondent No.2 is directed to deposit enhanced additional compensation with interest (excluding delay period) before jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.
Sri L Sreekanta Rao, learned Advocate appearing for respondent-2 is permitted to file vakalathnama within three weeks.
Sd/-
JUDGE *sp