Karnataka High Court
Sri K N Nagaraj S/O Sri Narasimha vs Smt Lakshmi Devaraju on 3 September, 2010
Bench: D.V.Shylendra Kumar, Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
Dated this the 3"? day of September, 2010'"-.»
PRESENT
THE HON'BLE MR JUSTICE D V
. ._ ;
THE HON'BLE MR JUs'r1cE:..A1;iAi.r1z§:1) I
Miscellaneous First Appeal fV'o, .4007 "
§.F2.,T_WE_.._E_3.Y_=
SR1 K N NAGARAJ _
S/O SR1 NARASIMHA' .
AGED ABOUT 28 YEARS ' ' ,.
RESIDING AT KUNDUR VILLAGE '
KUNIGALTALUK V A ' " .
TUNKUR D1ST'E4i1C"]'- 1: ~ j APPELLANT
-------- .;':¢i::A3[E3y"--St»1*i..vE'{ 'I--iari§3h Babu and
A' ' . V N Nfrgxgaveni, Advs.]
1. SMT LAKS"HMl. DEVARAJU
_ _ W/O=DEV.A}«tAJ"v_
' RESIDITJG AT No.15
' ,_aw.,%1MA1N'£<0Ar;; 3RD BLOCK
T R NAGAR, BULL TEMPLE ROAD
~._B1\NGALORE A 560 028
A = BRANCH MANAGER
V'F§iE"_ORIENTAL INSURANCE CO. LTD.,
'*--DO'--6, NO.364/ 1, 10'!" '13' MAIN ROAD
' V 31?") BLOCK. JAYANAGAR
"BANGALORE - 560 011
[INSURER OF' THE CAR) RESPONDENTS
[By Sri K N Srinivasa, Adv. for R2 and R1 -- Notice dispensed with vide court order dt: 19.12.2006} 2 THIS MISC FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.12.2004 PASSED IN MVC NO.3990/OI ON THE FILFLOF THE IX ADDL. JUDGE, MEMBER, MAC'I'-7, COURI' OF SMALLDOCAUSES. BANGALORE, SCCH NO.7. PARTLY ALLOV£fING_."~.'Fr£.E'~t. CLAIM PETITION FOR COMPENSATION AND SEEKING OF COMPENSATION AND E'PC., f THIS APPEAL COMING ON FOR THISS" DA'Y~,._ Amvnvnxzmmn J.,DELIVEREDvTHE~FQL1.0W1NG:' * E. < JUDGMyNTflf&V This appeal is "itfor enhancement of eotnpensatieant"ayvat*de€i--.. the Motor Accident Ciaims Tribufinna1t,:;; MVC No 3990 of 2001 dateti claim petition filed under Vehicles Act, 1988 [for short, Cornpensation of Rs 15.00 lakh, came Ftoaébe alinwed and a total compensation of Rs Iakh.VWith'ir11tefest 6% pa. has been awarded. I _ Iaets leading to the fiiing of this appeal are as I 1;_nde1f_ fjarties are referred to as per the rank before the tribunal. fig 3
3. On 18-4-2001 at about 5.30 pm, the claimant was proceeding on Seshadripuram road in front'»c. of the government school as a pedestrian and was car bearing registration No KA-05 P--69_813.,,.u_:':o;je.0.:ac_co0ui1t,V0 Which, the claimant sustained' injurifes'and'Was-tsh.ifted to I Victoria hospital for tre-atrnent"Aarid was 'ggtreateldean inpatient.
4. On account of*t'the'- ..sustained in the said accident, a claim petition;11nid:e--r_ 166 of the MV Act came to§.b-er 1'~I'o::f;3990 of 2001, on the file of Bangalore city. On registering the notices Were issued to the respondents andA"the: first respondent --~» owner of the A inyolvedfluitndthe accident -- though served vxdth the " .s.un1rno_n'su.fremajned absent and as such was placed ex Apc__trtev_,.~ fhfeitinsurer of the vehicle in question appeared and pg adrnitted of having issued the insurance policy cover by 'A.V'V'ad..n1itting the validity for the period from 4-5-2000 to 3-5-
"
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2001. However, other averrnents made in the claim petition came to be denied.
5. On the basis of the pleadings of the tribunal framed the foliowing issues for
1. Whether the peiitionedr' «proves.V:thaiV"'he sustained injuries RTA ..f}tai<.oceiirred~Qf1?1.s_' 18.4.2001 at T. about 53,30 0'wh,iI€r V proceeding on"rP.F,.. Rociel, 131 fr'oni.i.of.Go1vt. School, Seshadriptiram, Bangalorevsédue to negligence of the.._ciJ=iuer_»of Car.b_earing No. KA 05 P6986?" * t
2. Whether the prorges that he is entitled :for"'c(JrT.I;'3€i"1r':"i1tio§rii?' if so, what :_ani§aI1'nt and
6. 'I0'he_' "support of the claim made in the got" examined as PW} and got marked 0 Ito _ "1'he claimant also examined the doctor who 0' '- PW2 and through the said witness, got ~ A' of «documentary evidence.
EXP7 to 10. The respondent did not adduce oral W. 5
7. The tribunal, after considering the pieadings of the parties, evidence on record and after hearingptheetlearned advocates appearing for the contesting the judgment and award dated 20»12--200p4,t;i;;ev¢edV0..the_:
petition in part and awardedlia
3. 16 lakh under the following heVa«d_s'.
._ [Amount . -- _ -- 'In~RuVpees Pain, sufferingsp"& aigony 0' 65,000 Medical expenses to 5' " = 10,000 Loss of earning f=duri:r_1g "the 10,000 peri0d'o_f't.reatment ' of future" earning} 2, 1 6,000 Ftituife» _1nediea1i0'expense's 15,000 0' Totai " 0 3,163,000 Head
8. Kprme "not" being satisfied with the compensationdVtavsiarded' by the tribunal, is in appeal and is for enhancement of compensation.
-. .__the iearned advocates appearing for the = eemes.'etr A u N Harish Babu, learned counsel appearing for 2 the appel1ant--claimant would contend that tribunal erred 6 in not considering the total functional disability suffered by the claimant on account of the injuries sustaitileduy and he would contend that in View of the ldoctor PW2, the functional disability that had. 100% and the tribunal the functional disability suffeiedl' the 50%, which is equivalent totallibodyvyfidisability as opined by the expei't-E' ourfattention to the evidence of PW2 ivfctnctional disability ought to. at 100%, since the accident, was carrying on the 'marble stones for construction of buildin'gs_l".an'(j"- would contend that due to the a.a'1ap'utautionV.'of» tlf__1_e_right leg and the combined amputation ' vto.e_saof.:the left leg, the claimant is unable to carry on " aV*ocaVtio'ri--: which he was carrying on and which he was conversant with and also in View of the fact that he being * not conversant with any other worthwhile avocation to eke out his livelihood and also in view of the fact that he is t%// 7 unable to do any other work. the functional disability ought to have been taken by the tribunal at and nothing less than this.
11. Learned counsel for the appe1lant..w:o:uld:.f_laJso that tribunal committed an error in yconsidering. the .jn(';onie_ ii of the claimant at Rs claimant had produced which is marked as EXP6 that claimant was drawing a_ /-- as on the date of accident: ;.alsos.centen'd"that on account of the inju1'eslVlVsu.:gft(:1intf;d theuufunctional disability suffered, the future ofhas been rnarred and he has lost the _pros4f)ec:ts'.of getting married and deprived of normal V' _ A or liifeand also deprived of normal facilities available to human being which is purely due to the fa-nflpuvtation he has undergone and as such he seeks for AA eynhanceinent of compensation under other heads also. we 8
12. Per contra, Sri Srinivas, learned counsel appearing for the respondent -- insurer, would support thejorder and award passed by the Tribunal and had failed to discharge his burden_..by4_: u author of E.xhibit.P6, the absence of any posit.i_,ye rnaterial factum of salary that was as on the date of the acciden:i.;,..'t:i"i' "Was:j'u>stifieAdVAin arriving at the income ofathe clairaaht
13. disability that has been has been analyzed while Considering of disability by the Tribunal, is in A,consonancew&vi£h the medical evidence tendered by the and he would contend that disability Tribunal at 50% as whole body disability Acanngit abet disturbed and as such, he seeks for n coniirihation of the award of the Tribunal. He would also it >_V"e-iaborate his submission by contending that the reading of W, 9 the claim petition with the evidence tendered would go to show that claimant was not in the avocation of marble polisher and it is only the brother of the claimant "who was working as 'marble polisher' and there WE1VE%.._IiO:"1'f1;2it'{§I'iE1l whatsoever before the Tribunal to arrive__at,_a:.A_eoneIusior1~_ that the avocation of the polisher and as such he seeks for--npholdipn-Q' order and award passed by the tribunal' a1sVo*.oor1't'enxds that there was no other materi'a:la."procfi1}eeAd' :t'_(J'.e's.tahlish the income of the claimant and as he dismissal of the apileal. H
14. :§:1av'i11gVv "Advocates appearing for the parties, t'i1ehfo1lo"wing 'pdints arise for our consideration:
H {i] theprder and award passed by the Tribunal No.399O of 2001 dated 20.12.2004 is " . n reiqihre-iivito be affirmed, modified or set--aside'? 10 [ii] 'Whether the compensation awarded by the Tribunal is just and reasonable or it requires to be erihoanced? [iii] What order?
15. Re: Point No.1 and 2: The accidefit..:.in:.A_:questiori well as the injuries sustained by 4th,e'*_c11aim:ant.__ not it; dispute. In order to establish the claimant, he has examinedvdvthe' working at Victoria Hospital eiaiiriant as PW.2.
The said witness day the claimant met to the Hospital, the exarnination was conducted and = injuries were noticed on the c1emant- -4 "I, '«..}"'71'__rarru1atic auto amputation of right leg " V"r-Oyboue the ankle joint _v1'I. AiCru.sh iryury of left food with amputation of 2nd, 3"' & 4*" and 5*" Toe. Loss of skin over the great toe and dorsum of fore foot, III. Fracture shaft of left femur. " 1 1 1
16. It has also been stated by the Doctor PW2 that claimant underwent surgery for fracture of leftffernur and he Was re-admitted on 1212004 for "leftfl'foe.t was done on 3-2-2004 and was discharged the surgical operation.
17. The Doctor (PW2) has on 6.5.2004 for the purpose of.:.eis.certeining. ."the"1diHsal3ility land has found on cliziizéel that elajmant was suffering with the utee _ thettbial tuberosity «--Rlght'knee'full range.
2 dnoé'.u}eakness of quadriceps Wedringloelow knee prosthesis 5:2; :3 .
Tenderness over left knee '15'¢zi.r;z.'u1 Joint ~_ 3% & weakness of left thigh ~ 3% . hfjeformity left thigh & knee -- 3% Restriction of flexion of left hip by 10 Degree - are ~ 2??' 3%, External rotation by 10 Degree ~ 3% 12 j. Restriction offlexion of left knee by 20 Degree
-- 6% V " _> k. Restriction of anlcleflexion left by 10 to l. Amputation of all the toes leftfoot ._ 3" 9 rn. Deformity Cffoot left A M t n. Discharging sinuies A' it
0. Shortening of
18. on radiological.' exai~:iiii.é';t--i6i;i._.it "astound that the claimant was sufferirligxlwiritii. disability :-
"a. BKiolniputoiioh:',i:'ig-hlt'~legV' 7' ' b. §.Arh1pLiiEa:%go'r;..i,;f_'citz ta'e.~:'_of right foot __c%:__.V -- left: with mal--union and irT_1_1:'>loL'f'1.tV o e
19. fjoetor has opined that the claimant llsufferelnd" to right lower limb at 70% and to » Vifl-euft }.ower,:llim_b at 42%, which is about 50% to the whole H " also stated that with the abovesaid disability claitriant lcannot do his Coolie work. As stated by us herein above, the injuries sustained by the claimant is not in dispute. The learned counsel for the claimant would ac"
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contend that functional disability is to be taken at 100% as against the contention of the learned counsel 'forugthe 2nd respondent--1nsurer that it is to be gOn examination of evidence of the clairn.a,nt_:':'a:Vs"ifirell as-« evidence tendered by Doctor medical records produced at E§is,lP4~ :0 that evidence of the rand claimant has withstood and there is no reason to disbelievethe. by the claimant. Further,_ Working With M/s.
fact he has produced salary "at Ex.P6. It is no doubt true that author' not been examined. However, is not "e-v.egn__ga.t suggestion made to the ciairnant that ' _'said..Vdocu_r'I'ient is not a genuine document, in his cross- ".eXan1inaTtioAnnor the claimant was not working with M/s. Vedalifinterprises, which is engaged in the business of niarble cutting, floor polishing and floor polishing stones etc. A perusai of Ex.P6 would reveal that claimant was a"
PWZI. "I la' got' the 14 working three years prior to the date of issuance of Ex.P6 as a worker in M / s. Veda Enterprises and drawing a salary of Rs.3,000/-- per month. This is not in dispiitdeyas seen from the cross--examination of PW1 by the;'_"inst_1v:i:e__il9* in the absence of any denial by the contesting'itesponldenlt;, there was no justification for the. -:
contents of Ex.P6.
us, that as on the date 18.4.2001 it cannot be said being paid to the claimant is C(:)IiSi.i"i,ted' View of the same, We are ieyidence tendered by the claifziant' by the salary certificate to accept income of the claimant as on the of accidentyyass Rs.3,000/-- per month. ' ..VA_vIn,so:i'ar_'_as the disability is concerned Tribunal has . " taken 'in'toly'eonsideration, the whole body disability at 50% me"; of the evidence of the Doctor (PW2), wherein it is opined that claimant will not be able to pursue the earlier Vfavocation and would not be unable to do coolie work, we 48/, 15 are inclined to accept the contention of the learned counsel for the appellant that disability suffered by the claimant has resulted in 100% functional disability, insofar as his avocation and earning capacity is concerned', sustained and the percentage of disability':-assessed tithe Doctor is also not in disp1,:'g'tem.V Ejhg the claimant is not in dispute. legof. is amputed up to the knee and all thehleft foot are also a lrriaigunion of the fracture and the I-Ience considering this medic_aI'«'§ts}'idencei:_ to state that it is obvious eveI'i'.t:c.:a layperson that claimant cannot pursue the avocationx' eyen' a coolie, which involves physical '1'he'ret"ore,_ we are of the opinion, that functional ' V;V'disabilit3*.Efor the purpose of computing future loss of . " be taken only at 100% and nothing less and accordingly, the compensation is being re--computed as Q'/'I 16
21. The compensation awarded by the Tribunal under the head 'Loss of amenities' is concerned is onvvthierilower side, considering the age of the claimant as accident at 19 years, the loss of marriage»..pfrosp:ects and loss of amenities in life for the rest ofehpiis life cann~o't__be;V lost sight of. However, considering claimant was carrying on 'dilscjomvfort that he would face on acconriinof and amputation suffered, we are _inc1ine'd compensation, which is (3,000 X 312 K4418] . = Rs.6,48,000--00 Loss o1"'~-in ' ''1fife' ' = Rs. 50,000-00 Rs.6 98 000-00 The atpotallll'compensation payable to the claimant two heads is Rs.6,98,000/ -- and insofar as awarded under the other heads by the remains undisturbed. Accordingly, the following 0' order is passed : @'// *pjk¥ntAW'~;hiNG* 17
23. Appeal is allowed in part. Compensation awarded under the head 'Loss of future income' and of amenities' is enhanced by awarding total under these two heads at Rs.6,98,000/--, gaiésy interest at 6% 13.21. from the date of id date of payment. Cornpensation awarded other heads are hereby duantified at Rs.5,000/--. Costs :'t11'eHappe11antVvudthin four weeks from today by the claimant before the? the' enhanced balance amount. of terms of this judgment within' per if .. troni today. _ sal-
Judge Sd/-n Judge