Karnataka High Court
Sri S Narayana vs Managing Director, M/S. Ushodaya ... on 7 October, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
MISCELLANEOUS FIRST APPEAL NO.6719 OF 2010 (MV)
BETWEEN:
SRI. S. NARAYANA
S/O LATE G. SHANKAR IYER,
AGED ABOUT 61 YEARS,
RESIDING AT NO.87, 4TH MAIN,
CHENNAMANA ACCHUKATTU,
BSK 3RD STAGE, 3RD PHASE,
BENGALURU-560085.
... APPELLANT
(BY SMT. C.G. ASHADEVI, ADVOCATE)
AND:
1. MANAGING DIRECTOR
M/S. USHODAYA TRANSPORT,
NO.55, 8TH 'F' MAIN ROAD,
3RD BLOCK, JAYANAGAR,
BENGALURU-560011.
2. MANAGER,
ROYAL SUNDARAM ALLIANCE CO. LTD.,
SUNDARAM TOWERS,
45 & 46, WHITES ROAD,
CHENNAI-600014.
... RESPONDENTS
(BY SRI. C.R.RAVISHANKAR, ADVOCATE FOR SRI. K.SURYA
NARAYAN RAO, ADVOCATE FOR RESPONDENT NO.2;
2
VIDE ORDER DATED 20.05.2020 NOTICE TO RESPONDENT
NO.1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
31.08.2009 PASSED IN MVC NO.7881/2005 ON THE FILE
OF MEMBER, MACT, IV ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, BANGALORE CITY, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT THROUGH VIDEO CONFERENCE
DELIVERED THE FOLLOWING:
JUDGMENT
This is an appeal filed by the claimant challenging the quantum of compensation awarded by the Tribunal.
2. It is stated that on 18.10.2005 while the claimant was traveling on a scooter, a lorry bearing registration No.KA-01-AC-6656 came in a rash and negligent manner and dashed against him from his left side. As a result, the claimant alleged that he suffered non concussive head injury, back pain and injury of the right rotator cuff. He stated that he was initially admitted at Ramakrishna Healthcare and Trauma 3 Centre and thereafter at S.G.Hospital. The claimant contended that he had incurred medical expenses of Rs.15,182/-. He claimed that he underwent treatment for 14 days and as a result of injuries, he could not attend to his work and that he was denied salary by his employer.
3. The Tribunal in terms of its Judgment awarded compensation of a sum of Rs.55,182/-. The claimant being not satisfied with the award passed by the Tribunal, filed MFA No.2779/2007 before this Court. On the request of the claimant for an opportunity to produce the wound certificate and examine the doctor to prove the disability and also the future loss of income, this Court without going into the merits of the claim, remanded the case for fresh disposal. After the remand, a doctor was examined as PW2 and Exs.P10 and 11 were marked. The claimant was further examined and he marked Ex.P12. 4
4. The Tribunal noticed that PW2 deposed that as per the records available, the claimant had suffered concussive head injury, back pain and rotator cuff injury on the right shoulder. The Tribunal however, found from Ex.P6 that these injuries were not found in the discharge summary. Thus, based on the evidence of PW2, the Tribunal awarded a sum of Rs.10,000/- under the head pain and suffering.
5. Insofar as the medical expenses are concerned, the Tribunal disallowed certain bills on the ground that the claimant had repeatedly claimed the very same bills and as against Rs.15,182/-, the Tribunal awarded Rs.8,650/-.
6. Insofar as the claim regarding loss of income during the laid up period, the Tribunal noticed that the claimant had not produced any material to show that he was earning a sum of Rs.10,000/- per month and on the contrary as per Ex.P7, it was found that he was 5 earning a sum of Rs.8,500/- per month. Therefore, the Tribunal passed an award granting Rs.500/- towards loss of earning during the laid up period and also awarded Rs.9,500/- under the head loss of amenities and pleasure in future life.
7. Insofar as the disability is concerned, the Tribunal noticed that PW1 claimed that the permanent disability was to the extent of 15% to the whole body. The Tribunal noticed the claim of PW2 that the fracture was caused at the place where the frontal nerves passed was not supported by any document and therefore, disallowed the disability. The Tribunal took the notional income of the claimant at Rs.5,000/- and having regard to his age, adopted 5% as disability and awarded a sum of Rs.30,000/- as loss of future earning.
8. It is noticed that as per Ex.P10, the disability of the claimant was assessed by the doctor at Bowring and Lady Curzon Hospital on 29.04.2009. It was 6 noticed that the claimant had suffered from swelling and tenderness over the thoracic vertebra and the range of movement of the spine was reduced. There was a reduction in the strength of the muscle power on the thoracic spine. The disability is assessed at 15% to the whole body having regard to the restriction in the movement of the rotator cuff of the right hand. Ex.P10 would disclose that the fractures were united. However, there are documents to indicate that the claimant was first admitted at Ramakrishna Healthcare and Trauma Centre to which he was shifted by an ambulance.
9. The Tribunal has not awarded the ambulance charges of Rs.1,535/- and Rs.385/-. A diagnostic bill issued by an Ortho Hospital at Rs.4,200/- is not taken into account. It is noticed that the claimant was 58 years and as per Ex.P12, the claimant underwent rehabilitation at Abilash Hospital Sara Rehabilitation Centre. The claimant has claimed 7 that he was employed with a private caterer called Latha Catering Service, as per Ex.P7 and was drawing Rs.8,500/- per month. This was not disputed by the insurer.
10. In view of the above, the compensation awarded by the Tribunal needs to be enhanced marginally. Hence, the compensation is re-worked as follows:
(Amount in rupees) Towards pain and sufferings 20,000 Towards loss of income during the 2,000 laid up period @ Rs.3,000/- per month Loss of income due to disability @ 38,000 10% Medical expenses 10,000 Conveyance, Nourishment and 10,000 Attendant Charges Loss of amenities 10,000 TOTAL 90,000
11. The appeal is allowed in part. The insurer is directed to pay the total compensation of a sum of Rs.90,000/- along with interest at the rate of 6% per 8 annum from the date of claim petition till the date of payment.
The insurer is directed to deposit the enhanced amount within a period of two months from the date of receipt of a certified copy of the Order.
Sd/-
JUDGE GH