Karnataka High Court
A P Haris S/O Late Hamsa vs K K Devaiah S/O K M Karumbaiah on 24 June, 2009
Bench: N.Kumar, B.Sreenivase Gowda
IN THE HIGH COURT OF KARNATAKA 4 Ar P BANGALORD DATED THIS THE 247 "DAY: OF JUNE, 2009 P KE Si. Na e a | . THE HON'BL avin STICK © NRUMAR THE HON'BLE MR. STICh > B. SRBENIVASE GOWDA Miscellaneons First Appeal Ne. $094 of 2006 (MV) Between: _ ALP. Haris. Si: 1 of late Hamea, Aged about 30 years, - R/o Pollibetta, Viraiper' Tahuk, S. Kodag: L. oe oS . Appelanit (Py Sri 8. Mahesh, Adv.) An d: . ol RUD Devaiah, 5/0.K.M, Karumbaiah, ; Aged about 40 years KR/fo No.27, Poll ibetta, " Viraypet Taluk, S S. Kodagu, Bae The United India Insurance ¢ Company Ltd, Rep. by its Branch Manager, C 'ollege Road, Madikeri. .. Respondents (By Sri M. Arun Ponnappa, Adv. for R 2 notice to R 1 dispensed with) a This M.F.A. filed under Section 17eH1) of tt + Motor Vehicles Act, 1988 against the judgement and awar rd 4 dated 28.01.2006 passed in MVC No. 22/2005 by the Civil Judge (Sr.Dn.) & MACT, Virajpet, varthy all lowing the claim». petition for « compensation and: se sceking enhancentent of com petisation. This Appeal coming om for Adm ission, this day, KUMARAT, delivered the following, JUDOMEN . This isa Claimant's S appeal SEE cking ennancement of compensation ¥. ior. the. ; personal : injuries sustained im a motor velticle accident, 2, For, the purpose of convenience the parties are ai referred to as ihey ave referred to m the claim petition. 3) Tratocon 16.09.2001 when the cls aimient was proceedings on his motor cvcle bearing registration No.KA- © 12-E-68680, when he reached near Post Office at .Ponnampet at about 1.20 om. an Esteem Car bearin i "Yegistration No.KA-12-M-3727 driven by the -- Is respondent in arash and negligent manner coming irom the opposite side dashed against the motor cycle as a Abd result the claimant fell down, Sustained iguries, He was working as a writer of one KA, Nobama earning P °8.5,000 fe pom. Therefore he fied a claim petition seeking compensation of Rs.5,00,000/%, 4. After service of notice, owner ; af "the car remained absent. [t is only. t he Insurance C Company which ha as Bled detailed samen of - objet Hens: contesting the claim petition. Howe ever, "they: sai HOE 'dispute the accident nor ihe j insurance coy veraige. oO. wh { On h the aforesaid pleadings, the Tribunal has framed iss: 'So, in order io substantiate the claim the claimant himself was "examined as PW 1. He has examined the . employer as PW 2 and examined Dr. Dinesh Kadam and Ov. Adyanthava who treated him as PW 3 and PW 4 and produced documents which are marked as Ex. PltoP i4. On behalf of the respondents no oral evidence was cin adduced but produced the Insurance policy marked : aS EX. Ri, a a 6 "Phe Tribunal on ceric sideratic oH of che ad foress aid oral and documentary evidence hias held that the accident was on account of the rast : aiid "negligent driving of the offending car _ Py its. | driver: : and the claimant has established. he : actionable "negligence. Thereafter on consideration fc af the | evidence of the claimarit's cMmplover, that theslaimants-+ We Ss aged about SO vears on the date of the accident, fi is Income was assessed at RS.3,000/- p.m. a we Tet ae] ovis wiped ah =
disability which he has sustained js permanent in nature and the doctors have dey posed that there is 80% perinanent cisabllitv to right upper lnnb, he was an . inpatient in the hospital for a period of 96 days and in fact he has taken treatment in three re puted hospitals. He was advised to undergo physiotherapy. The Tribunal taking ito consideration all these ASPECTS awarded a sim of ks,.30,000/- towards pam and sufferings, RS: 56,¢ i 00 f- towards medical expenses, Rs. 1,200 f: "towarris : attendari al | charges, Rs.1,200 fr tor wards food 'and citra nonaiahatent, Qf/- towards conmevanee, R S01 5,000 f- . towards physiotherapy, Rs.¢ 00 f - towards le oss of cming during the period of hospitalisation and °R6.51,200 f/- towards future amen oF iife Or for dis bility. in all it awarded a total sura of RS. 4, 4 84, of a0 / / _ as, global compensation with inferest ait 6% pa froxt thie date of petition till the date of deposit. Aggriewed bs the said award the claimant is in appea seek King ent hancement, Fo Learn ed. Counsel appearing for the appellant ssailing the impugned judgment and award of the Tri bi mee contended that when the claimant has produced SS medical bills to the exterit of Rs. 1.04. »239%-. The Tribunal vithout aliv justification has awarded only Rs 56,000 j- urnider the aforesaid head. The amount awarded towards altendant charges, nourishment , Convevance is on the L-
lower side, though medical bills have 'i oddue ved te wards his treatment only Rs.56 O00} iS. awarded: without. any | one justification. The income of the aimant is assessed, a RS.3,000/- pom. wheres - he Wwe As earning RS-3,000 /- pam. only Rs.9,000/- is svarded towards loss of fhcome during the period of treatment, Thou the doctor t has assessed the disability to igh at upper lim nit ak 80% and 20% to the whole bedy ae rib vin Val "has taken only 10% disability to the whole | body and: i awarded 61,200/- toward loss of future amenities which is on the lower side. Therefore he pray S for evharcement of compensation.
B. Per. 'contra, learned Counsel appearing for the insurance Com pary Supported the impugned award and Opposed enhancement.
9. From the aforesaid materials on records ifis clear that the claimant was aged about 30 years on the date of the accident who was working as writer of one K.A. Noban Le of Gonikoppa. He has examined the proprictor of th 1s said:
estate. iis his case that he w AS esoning Rs.6 Oy 00/ | per monun, it is not in dispute that the . claimant car not be ireated as unskilled labourer, 'His ovidcne' coupled with the evidence of his emplever coupled with « another co- worker the Tribunal « ou ght to he ve iaken his income at R's.4,000 / - arid hot Rs. 3 2,000/. p Bp. °n.. In the accident the claimant has. "sustainéd srievous injuries. Dr. Dinesh Kadam, Plastic § S. rgeo in who ti treated the claimant and conducted wine's nas. deposed that on account of the accident the claimant has paralysis of right upper Hob : due t0 brachial plexus and there is nerve injury which is : severe: in nature resulting in complete Wansaction of all ner 7 roots in the neck. He has advised Surgery for nerve Oo. reconstruction. He was operated on 8.1 1.2004 by him by exploration of brachial BICxUS Herve and on construction t with nerve Wansaction with nerve transter was done. He "Was given necessary POSE Surgery. According to the do ctor he could use his hand Partially with assistance for his om activities of daily ving. The prohab ity OF further 3 recovery Yom. his evidence sated _ that the claimarit c cannot (hold ihe pen and write even with the assistance of -- other han ed and. he cant Aol drive the 4 vehicle, He was advised - the -claimant to lirmlergo phvsi otherapy to avoid a of Thejaswini:. Hospital, "Mangalore b aS deposed that he found weak vad the right upper cervical r ego On, Glinicaniy avulsion mjirv to right brachial plexus in C5, 65, OF MRI Scan sows brachial pices WHuUrY nerve re 30. A: ccordiig fo the doctors the permanent ~ <b8abilitv to a particular limb is 80%. Therefore the ike tovtne whole body would not be less than 20. The Trak burial Was Rot justified in assessing 10% disability to the whole body. Even after trial the claimant is under treatment and spending money from his pocket. Pro bably he needs treatment. in addition to tnat he also needs physiotherapy for the rest of hus life. In view of the aforesaid materials on record award of Rs,30,00G6/- omen Beant filed producing documents showing the medical 't ty eatment and expenses incurred after" tas treatment till . ioday | having regard to the na BILE ( of in yuries anid the treatiaent taken the claimant requine S mecdie val treatinent through out his life. In fact. he has Spe | : shat consiér 'able araount while taking treatment. ~The. over: all picture of the disabibty, | treatment, atu -- of. mpuries we award Rs.50, o0ay~ " "tow: ards: fatiire tucdical expenses. Therefore ed for 2 ari ac dilitional con upernisation of ; : thas been awarded by fhe Tribunal Hence noe pass the following:
GORDER
i) The appeal is allowed in part; .
Ay Tie Claimant i§ entitied fora sum of Rs. 2,03,000 /-
in addition to the compensation awarded by the Trifainal with interest ai 0% p.a. from the date of petition till the date of payment, Parties to bear their OW) cost, y