Karnataka High Court
Sri. Altafhussain S/O Nizamuddin ... vs Basuraj Madiwalappa Sutagatti on 6 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 6th day of December, 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal No.23284/2011 (MV)
BETWEEN:
Sri Altafhussain
S/o Nizamuddin Saundatti
Aged about 34 years
Occ: Band Master
At present Nil
R/o Indranagar
Bailhongal, Belgaum ...Appellant
(By Sri T M Nadaf, Advocate)
AND :
1 Basuraj Madiwalappa Sutagatti
Aged major, occ: business
R/o Neginhal, Tq: Bailhongal
Dist: Belgaum
(owner of Motor cycle bearing
No.KA-24/H-1455)
2 The Branch Manager
Oriental Insurance Company Limited
Merchants Bank Building
Bailhongal
:2:
Belgaum ...Respondents
(By Sri. S S Koliwad, Advocate for M/s.B C Seetharama
Rao Associates, Advocates for R-2
R-1 served and unrepresented)
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This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 08.04.2011 passed in MVC
No.156/2010 on the file of Sr.Civil Judge, Assistant
Sessions Judge and Addl.MACT, Bailhongal at
Bailhongal partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
This appeal coming on for orders this day, the
Court delivered the following:
JUDGMENT
This appeal is for enhancement directed against judgment and award passed by MACT, Bailhongal in MVC No.26/2010 dated 08.04.2011 whereunder claim petition has been allowed in part and a total compensation of Rs.1,72,100/- with interest at 6% p.a. from the date of petition till date of payment of deposit has been awarded.
:3:2 Heard Sri Nadaf, learned Advocate appearing for appellant and Sri S S Koliwad, learned Advocate appearing for second respondent. Though respondent No.1 is served, he is unrepresented. Appeal has been admitted on 28.11.2011 and records have been secured. 3 It is the contention of Mr.Nadaf that Tribunal committed a serious error in construing percentage of disability of claimant at 5% when there is positive evidence available on record by way of evidence tendered by P.W.2 - Doctor who has issued the disability certificate as per Ex.P-7 and who has stated that permanent physical disability to the right upper limb is 40% and as such, Tribunal ought to have taken disability at atleast 13.33% while computing the compensation under 'loss of future income'. He would further contend that Tribunal having noticed that claimant had suffered shortening of right upper limb to an extent of 2.5 cms, further disability had to be :4: assessed as opined by the doctor and ought to have arrived at the whole body disability at 100% since the claimant was carrying on the avocation of Band Master and on account of disability suffered, he would not be able to perform the job of Band Master in future. He also submits that Tribunal erred in awarding abysmally lower compensation under the head 'food, conveyance, nourishment and attendant charges' though claimant was hospitalized for more than 11 days and as such he seeks for enhancement of compensation under these two heads.
4 Per contra, Sri Koliwad, learned Advocate appearing for Insurance company would support the judgment and award passed by Tribunal and submits that on over all appreciation of entire evidence placed on record, Tribunal has awarded just and reasonable compensation and it does not call for enhancement and seeks for dismissal of appeal.
:5:5 Having heard the learned Advocates appearing for the parties and on perusal of judgment and award passed by Tribunal as also the evidence of Doctor P.W.2 who has issued disability certificate as per Ex.P-7, it can be noticed that claimant had sustained following injuries:
1) "Abrasion over right knee measuring 2x1 cms.
2) Bleeding present over right knee.
3) Tenderness over right middle/3rd of leg.
4) Movement of right knee painful, crepitus present.
5) Fracture right leg lower/3rd tibia and fibula
6) Open reduction and inter lock nailing was done on 21.10.2009 for fracture right tibia with S.A.
7) A/K Slab He was an inpatient at Sri Sai Hospital, Bailhongal from 20.10.2009 to 30.10.2009 as per case sheet of the hospital which came to be produced and marked as Ex.P-16. The doctor who has assessed the disability :6: has entered witness box as P.W.2 and has found on clinical and radiological examination of the claimant that permanent physical disability to the right upper limb is at 40%. It has been stated by the doctor that claimant at the time of clinical examination was found to be limping and he was finding it difficult to walk, squat, sit cross legged and finding difficulty in standing on the affected limb and it hinders his routine work.
P.W.2 - Doctor has also stated that on clinical examination of claimant, he found that there is shortening of right upper limb to the extent of 2.5 cms and wasting quadriceps to the right upper limb. Though doctor has opined that permanent physical disability is to an extent of 40%, Tribunal has accepted contention of claimant that he used to work as Band master/musician and has inferred that injuries suffered or sustained by claimant would result in 5% disability to the whole body. To arrive at such conclusion, neither Tribunal was possessing expertise nor it had any contra :7: evidence available on record. Admittedly, Insurance company did not examine any medical expert to disprove the contents of disability certificzate - Ex.P-7 nor it tendered any evidence to demonstrate or establish that percentage of disability as opined by P.W.2 is not in consonance with the injuries sustained by claimant. In the absence of such positive evidence or any other material available on record, Tribunal committed a serious error in drawing an inference that disability cannot exceed 5% which is without any basis and same being contrary to medical evidence available on record and as such, said assessment of whole body disability at 5% by Tribunal requires to be modified. When the doctor has spoken that disability to lower limb is to the extent of 40%, whole body disability would be 1/3rd of it, which would be 13.33%. It is to be noticed that contention of the claimant has been accepted by the Tribunal that at the undisputed point of time, claimant was carrying on avocation of Band Master/musician :8: and he requires to walk long distances during his performances or in the alternative it requires long hours of standing. On clinical examination of the claimant, doctor has found that there is shortening of right lower limb to 2.5 cms. He has also found that claimant had gait antalagic with limping together with swelling over lower 1/3rd of right leg. This would naturally result in certain amount of disablement to the whole body particularly in the background of claimant's avocation which is that of a musician or Band Master. As such, I am of the considered view that whole body disability is to be construed as 15% which would be in parimateria with the assessment of disability made by doctor P.W.2. Thus, in substitution of what has been assessed by the Tribunal which relates to whole body disability at 5%, same is modified and substituting the whole body disability at 15%.
:9:6 Though Mr.Nadaf has contended that income of the claimant is to be construed at Rs.10,000/- per month, I am not inclined to accept the said submission, since it is without any proof or any other evidence and as such, I am of the considered view that income determined by Tribunal at Rs.4,000/- per month is just and reasonable. There is no dispute with regard to multiplier adopted by Tribunal which is 16. It is in consonance with the age of claimant being 33 years at the time of accident. Hence, computation of loss of future income is re-computed as under:
Rs.4000x15% = 600 x 12 x 16 = 1,15,200/-. Tribunal has awarded compensation of Rs.38,400/- under this head and same requires to be deducted and if so deducted, claimant would be entitled for additional compensation of Rs.76,800/-. Same is hereby awarded. : 10 :
7 Admittedly, claimant was an inpatient at Sri Sai Hospital, Bailhongal as per the medical record produced as per Ex.P-16 namely from 20.10.2009 to 30.10.2009 and Tribunal having so noticed, has awarded a sum of Rs.4,000/- only towards food, nourishment, conveyance, attendant charges, same being marginally on the lower side it requires to be enhanced by awarding additional sum of Rs.8,000/- and the same is hereby awarded.
Thus, in all, claimant would be entitled to additional compensation of Rs.84,800/-. 8 For the reasons aforesaid, following order is passed:
(i) Appeal is allowed in part;
(ii) Compensation awarded by Civil Judge
(Sr.Dn) & Addl.MACT, Bailhongal in MVC No.156/2010 by judgment and award dated 08.04.2011 is enhanced by awarding : 11 : additional compensation of Rs.84,800/- which shall carry interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
(iii) Respondent No.2 - Insurance company shall deposit the enhanced compensation amount awarded before the jurisdictional Tribunal within a period of four weeks from the date of receipt of a copy of this order.
(iv) No order as to costs.
(v) Registry is directed to send the records to
the jurisdictional Tribunal forthwith.
SD/-
JUDGE *sp