Karnataka High Court
Kumari Deep vs G M Basavaraj on 21 June, 2012
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
MFA NO. 6883/2010 (MV)
BETWEEN:
KUMARI DEEP,
D/O RAMAPPA,
AGED ABOUT 12 YEARS,
APPELLANT IS MIOR
REPRESENTED THROUGH HER NATURAL
GUARDIAN FATHER I.E, RAMAPPA,
S/O BASAPPA,
R/O MATTUR VILLAGE,
HARAPANHALLI TALUK,
DAVANAGERE DISTRICT. .....APPELLANT
(BY SRI: MAHESH UPPIN R , ADVOCATE)
AND:
1. G M BASAVARAJ,
S/O G.M. PUTTAIAH,
MAJOR, R.C. OWNER OF AUTO RICKSHAW,
BEARING NO. KA-17/9987,
R/O HALAWAGALU VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT.
2 THE MANAGER,
THE NEW INDIA ASSURANCE COMPANY LIMITED,
DIVISIONAL OFFICE, SHAMNUR BUILDING,
CHAMARAJPET, DAVANAGERE
2
3 M. SATHYANARAYANA,
S/O RAMAKRISHNAPPA,
MAJOR, DRIVER OF AUTO RICKSHAW
BEARING REG. NO. KA-17/9987,
R/O MEGALAPETE,
HARAPANAHALLI. ... RESPONDENTS
(BY SRI: S T RAJASHEKAR ADVOCATE FOR R2, R1 AND R3
NOTICE DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 07.01.2010 PASSED
IN MVC N O. 78/2009 (OLD NO.60/2005) ON THE FILE OF
SENIOR CIVIL JUDGE, MEMBER, MACT - IX,
HARAPANAHALLI, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal filed by the claimant seeking enhancement of compensation awarded by the Senior Civil Judge, Member, MACT - IX, HParaphernalia in MVC NO.78/2009 dated 07.01.2010.
2. As per evidence of the doctor and also on the basis of Wound Certificate - Ex.P5, X-ray film - Ex.P11 and 3 Report of Radiologist Ex.P11(a) which discloses that the injured has suffered fractures of middle shaft and right tibia. In the evidence of the doctor PW2 filed an affidavit statement and stated that injured has suffered fracture of right leg resulted in stiffness in the ankle and injury caused to the right leg and undergone plastic surgery, shortening of right lower limb by ½, wasting of right leg muscles by 1", keloid formarion over both thighs and compound fracture of tibia with a big lacerated wound over right leg. Doctor who treated the injured has deposed that, 60% disability is caused to the limb, it is permanent in nature. In view of the accident the injured has lost her bright future and the portion of the right leg it exposes in awkward position. She lost flexibility of the right leg which has resulted in suffering inferiority and loss of marriage prospects also the tribunal assessed the disability at 20% and taking notional income of Rs.15,000/- awarded for 'Conveyance attendant charges, food and nourishment' and Rs.54,000/- awarded under the head 'Loss of future income' Pain and suffering only 4 Rs.30,000/- awarded by the tribunal which are lower in side.
3. Learned counsel submitted to award suitable compensation on the basis of the materials and also on the basis of photographs which would demonstrate the nature of groups incident and disability.
4. Learned counsel appearing for the insurance company submitted that the compensation under the head 'Loss of future income' is rightly assessed by taking notional income and disability 20% to the whole body. Hence, what has been awarded by the tribunal is just and proper does not require for interference. The accident occurred in the year 2003, though the case is disposed of in the year 2010 by the MACT by taking cognizance of all these materials the slight amount is to be enhanced.
5. I have heard learned counsel appearing for both the parties and perused the records.
5
6. The evidence of the doctor PW2 very much discloses that the right leg of the injured has been fractured and because of stiffness cannot be moved upwards and downward and shortened by ½ inch and further both joints under went plastic surgery it looks awkward and reduce girls marriage prospects.
7. Under these circumstances, the tribunal should have assessed functional disability on higher side. The functional disability on appreciating the evidence of the doctor and also on materials including photographs, I propose to take the disability at 30%. Accordingly the same is taken. Hence calculation would be Rs.15,000/- x 30 /100 x 18 = Rs.81,000/- awarded under the head ' Loss of future income'. Under the head 'Pain and suffering' though the year of the accident is 2005 the awarding compensation itself took about 5 years from the date of the incident of the case and the original claim petition filed in the year 2005. 6 Considering the nature of the injuries, and the impact it has on the body of the injured, I propose to award another sum of Rs.20,000/- under the head 'Pain and suffering'. Loss of marriage prospects RS.1,00,000/- is awarded in addition to what has been awarded by the Tribunal.
Appeal is allowed in partly.
Sd/-
JUDGE DP*