Karnataka High Court
T Jainullabudin vs M A Asif Hussain on 21 September, 2011
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-2- JUDGMENT
The appellant is the injured claimant who _ appeal seeking enhancement of pcompens'atio'n',ll"-.being aggrieved by the judgment and No.6"/'5/2005 by the MACT-IV,*a_t Hijsple-:, [forill;'tlhe:°; Tribunal '].
2. The appellant road traffic accident that occ_ur~r&ed_ on atfabout 3.00 am. when he was rc"tti"r.nin..gT fro.in__;'l<op.palv'to_Hospet in a vehicle bearing regisvtrafion ll' ::;,l\.lo .'»K/9335 / 'l--{.<.3v687. He sustained compound fraetiurel lVe.ft""feiiiur. He took treatment at Government Hlospitvall,' at Sripathi Nursing Home and atVJayan.aCgar~Orthlopedic «Centre, Bangalore. He was an int patientin two hospitals. Contending that he had sufferedhgperrnanentli physical disability, he filed a claim petition sleekingi compensation on various heads. [lifter service of notice, the respondents appeared and l'lc'onte_slted the matter. In support of his case, the claimant let'- iinevidence of Dr.Eshwargouda as PW--2 and his own evidence as PW-1 and produced 21 documents which were got marked .// -3- as Exs.P«l to 2l. On the basis of the l Tribunal awarded compensation of '<'1:A,35:.:7p2j8l/g at the rate of 6% per annum frorn the date ofiipeititiorg realisation. Not being satisfied li'w.i._th _thel'saidaw;ard, the claimant has preferred this:a"ppe;.:il. j,
4. l have heard-theiillearriedpco'o_nsVel1appearing for the appellant and, ieictiirisel-." 'appearing for the 2""
respondent/L' '
5. ltais conitein.d_ed.onb'e_half of the appellant that having regard to they riaturelofe.grievous injuries sustained by the clairnantgand the fact that he was discharging his duties as a aVl'l\./«_lininglmClon"lpany, the Tribunal ought to have awarded {corn-rp'en'sa.:tion under the head of loss of future ii"Vie'r1rning*-capgcitgig since the permanent disability of 30% to the ~ «jiIifialrtictilariilitnib [left femur] was assessed by PW-2, the doctor. contended that the appellant did not attend to his duties for a period of one year. But, the compensation i"'«,rawarded on the head of loss of income during the laid up V. period is meager. He also stated that the award of compensation on the heads of pain and suffering, loss of 'L;
c' ,4c amenities and incidental charges are on the lower sicieelland therefore, it is a fit case where there has l5r:el--'* determination of the compensation, enhanced. Learned counsel for l'fur_thr=:vr~l submitted that since, the vehicle-.__\in questionr.'\xias.._ycoVered_l> under a package policy, the lialbiliityihas to"be'lfastened on both owner as well as on tlf1t3«_lI"1_S1J".'[_'€T;,:_ yehicle.
6. Per contifa,'«.._le'arn:ed :.co.un«sé'ilappefaring for the 2""
respondent/ supporting the judgment aridllla\x;aii%,(:jv th_e"Trlibunal has stated that the same woluld«l.not-- of this.Court in this appeal. He_furth'er_:Vsu.b.miitted"that in View of the policy being a:'pa'cl<age lpo.l'i.cy"; the inislurler is liable to satisfy the award. 'Ha§}ir~;g;';:he;a}d the learned counsel on both sides and l7__on'Vperusalz of the material on record, the only point that f io'r~ consideration is:
"Whether the appellant is entitled to additional compensation?"
8. From the evidence on record, it is established that the appellant sustained compound fracture to his left femur. 9,%.
He was an in--patient at two hospitals and thereafter, has taken follow~up treatment. The claimant was working-«._a's.vva Supervisor in a mining company. PW-2, the_."d.octior;"----h'a--si~ assessed the disability to his left femurat 'Aii.'l*he're_fore_?li there would have been whole body _ar1i:
lO% at least. Under the circumst_arie_es, tlie to" V have awarded compensation un-der"g\:~.thegA'head'vvofldisability however not on the heasl capacity, since the his duties as Supervisor in the View, having regard to the natui"el"of.einjuriielaan-d"the eX't'ent of disability, a sum of 50,000/« hasitio be head of disability.
9._;Further, "th_i_eiaward of compensation on the head of pain, and suJffe.ring, loss of amenities and incidental charges are also-.meiage"_r..__ The said awards have to be enhanced. lO. "El__aving regard to the fact that the appellant had sus'tain,ed--' compound fracture of the left femur and as a result i'riof..Which, he could not have attended to his duties, loss of iii"-«.iVi"in'icome during the laid up period has to be considered for a V period of six months. Taking into consideration the salary of 'Q, -6- claimant at ?9,000/» per month, a sum of ?54,000/-- on the head of loss of income during the laid up period awarded. id ii i i
11. In the result, the re~assessrnen»t.sof as fo11ows:~ i " id i V' H
(i) Pain and suffering: . '
(ii) Medical expenses and"'hos'piita!i_ "$70,728/-- charges: 7 --. *
(iii) Loss or income...dI,iri~ng'it_he_ laid; M A ~ ?54,ooo/-- up P..erio'dv:._[?9;,;OOQ/f'V..X 5] i
(iv) %1o,ooo/-
(V) at i-Lcisisj-of amenities-and""""" =<*3o,ooo/-- I inoomrc--enje"nce«.,;V '
(vi) oisabimy': 350,000/--
T0TAL= Thiis, eliaimant is entitled to total compensation of ?2,3i9i','7_28_/.; of ?1,35/.728/-as awarded by the TriLiunai1.i""Th'e additional compensation shall carry. interest at r.¥ate+..of V690 per annum from the date of petition till 7 fn.rea.1iza'tioni "On deposit of the same, 50% of the enhanced .i"i..uiCompensation along with proportionate interest shall be