IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE: 5'?" DAY OF MARcHvA#2'o':i'o"o:'Q..V
BEFORE
THE HONBLE MR. JUS'FIC-E'ARAViND«
MISCELLANEOUS FIRST APPEAL' «No--.£§6o3 2007" vi " ~
BETWEEN :
Sri. H.A.i\/Iohan Kumar,
S/o.Sri. Ache Gowda,~.__
Aged about 37 years. ._ A
Residing at No.934. V
Kamade11u,81i1'.CI'oss;
Church Street, E{A._L 3'31 Sefage,» if; . V H
NewThippasa1'1d'i'a}~._ ,
Bangalore-?'5;'~-- 1» .. APPELLANT
(By & Sathyapal, Advs.)
!§_i\Q}. _
1. New Indiet AVs"Si1'1'a11(:e Co., Ltd.
., No~..6 7/A Reddy complex.
V _ 'Whitefield Road,
~. E" ---.Vi'Mah'ade:fapura Post.
Bai"igajiore--48
" Byaits Divisional Manager.
'A N. Shivaprasad,
USS/o. Sri. Narayanappa,
Major, Residing at No.37.
2"" Cross. Behind Govtfiigh School,
New Extension. KR. Puram, ._
Bangalore. RESPONDEN'l*S
(By Sri.N. Manjunatha Adv. for R- 1,
Sri. DS. Sridhar. Adv. for R-2)
This MFA filed u/S.173(1:}~~0.f_4MV"Act':againstV the"
judgment. and award dated: 8:111.2AOQ6'*_pas'sed,inL
No.326«:."},_. "t:1'1at:.'."--~ it
accident occurred OI1ij{r(i1,1€ to" the .{ie'g"1ig.,eric'e"
of the petitioner as a1.1__<§ge_d'VVi_n par"a.,NQA__.?J, of
the written stat--e_f'i*.en'--t? . V. "
. Whetiher_'Lh_e res;joIidtcri't.t.i§fQV: 1V'proV"es that the
riderof vehicjie had j--r1'oV'v'aiid license to
sai:d"vehiceie at the time of accident?
. Whether No. 1 proves that the
_petiticr__1V bad "for" riorrjoinder of necessary
.....
the petitioner is -entitled for
cortiperisation amount? if so how much and
i z from whom?
“What order or award?
5. The claimant in support of his claim got
himself examined as PW.1 and examined the _-Doctor
who treated him as PW.2 and got marked
P13. On basis of the respondent no oral
let in and no documents were a’ls”0″g0l :.fr1a;1*l.<.e"cl._ On' the
basis of the pleadings and the Vex/idence
Tribunal allowed the petitlioniin pare and lawéirded a
total compensation folloudng
heads:
1. Pain. inju;i”i’es_and 1surf.gr1nrg«s::” Rs. 25.000/~
2. Medieal’ : Rs. 1.00.000/M
3. Incidenétal ezgpéggisievsj5 ; Rs. 5.000/M
4. of lir:elome’-
..«iireatment,”peri_Q_d. : Rs. 10.000/–
» ‘Qf”an3enities in future
llif.€_:”»._¢ ” : Rs. 10,0001-
Total = Rs.1,50,0{){)[-
It tlilis jndgment and award which is now assailed in
. ., appeal.
(3
6. I have heard Sri.Sathyapa1. learned Counsel
appearing on behalf of appellant and S1’i.I).S.S_.r.i_dhar,
learned Counsel appearing for second respo1’1de.nt’.-
7. Srisathyapal. learned Counsel”a{§pearirig for’*
the appellant would contend
taken into considerationVth_e evidence off’t§he._Docto2*-”
available before it and ..:aw_arded*:_cvornr3e1’1sation
under the heading which is on the
lower side and A seheksi .fo’1-. if compensation.
He would noticed the
evidence ._o–fl which was to the effect that
the total to the extent of 1 1%, ought
to gra1’1te-devcornpensation towards loss of future
»i:r’1«<:Qn1e.'A.Ml'~f_o"n; awarding of this said compensation has
if prejudice to the appellant. He would
Q also cc3ntei'1d that compensation awarded under the
other headings requires to be enhanced, since the same
15;. abysrnally on the lower side.
8. Per contra Sri.D.S.Sridha1′. learned Counsel
appearing for respondent. No.2 would submit.___ that
Tribunal has taken into consideration all t.he.:niaft.el1=ilal
evidence placed before it and has
compensation and same does n;ot”‘ca:1 for int.e’rfereriee at
the hands of this Court. He would difaw Aattenvti;o’nof.cL
this Court to Para 16 of to
contend that Tribunal wasMju–s:tifi’e-d in not awarding
compensation for loss’0~of0’f’futu1–‘ev since no
material wa;sCpljaeed;1._byL the”‘claii11a.n.t that he was not
thellavocation which he was
hitherto the date of accident.
Accordingly seeks for dismissal of the appeal.
heard the learned Counsel for the
parties,’ following point arises for my consideration:
2 ,. ‘illlfhether the compensation awarded by
the Tribunal in MVC.No.3264/2005 dated
08.11.2006 is just and reasonable or it
requires to be niodified/enhanced’? If so. to
what extent?”
10. The Tribunal while rejecting theleilaijrn
appellant for not awarding thereolnipenséationi
heading loss of future income has (fame tort}leonclusionr,
that when there is no restrictlion of’.rnov–en12e-nt of the
right forearm and there rarove that
petitioner had the maxillary
region and is no permanent
disability “”l5hie;§fi’nd1ng when read with
the l?’W.2 is to be held
erronexo’t1_s”for the :l%oll’oVii1:’:ii€i;:;”‘reason:
“l’14¢§”D9Qt,o.r htisfibeen examined as PW2 has
that X~rays were taken which
Injuries:
1. “l?rac_;’tLrre”bilateral L€”fOrt.*H fracture
2.rrtCorrrp:ound fracture lower l/3″” ulna with closed
Head injury
l radial styloid fracture right side
9
and subsequently the claimant: has undergone surgery
on 28.03.2005 for debridement with ORIF
and radius by K-wire and Doctor has
permanent disability to the right””u-ppery ardund
20%. maxillary region i.e.. iaceaivslaround’.,yl5%.
whole body it is around ‘been’
suggested in the cros’s;.exami’nat’ion”eeiyhereivn’ itis stated
that assessment of side which
in effect wo§1,1ldfVyly;t>.e of any
disability. of disability is
being facial region
cannotz’–fo’rmVa– It is admitted fact
that Vclaimaritwasiworking as a Fabrication Manager in
i’a.eto.rI’3* and avocation he had to use both
Doetor’s evidence clearly goes to show that
disa.bility’to}t.he right upper limb is to the extent of 20%
of fracture of bilateral Le-fort-Ii and also
_ contend compound fracture lower l/3″‘ ulna which is to
right hand. When the profession or avocation of
€:,:%/,..
claimant is fabrication work, the use of right hand is
foremost. and the evidence of the Doctor xivhichtjtootthe
effect that on account of the said injury,
would find it difficult to lift weight and..11s:e.gVthe: 1.,_1pi);€'”i-..
limb freely cannot be doubted;
evidence and not awardirlg cornpveiisati-an”pander? theft»
said heading on the finding Thsibunal is
erroneous and liable;::..t’:C’ Accordingly the
said finding of The Tribuhnial The Tribunal
has not if the basis of the
finding” of the finding having
been as aforesaid. the disability
of the_ clai4n;a_nt..i’.s to assessed on the basis of the
V’ .ava-ilabiee e’vidence.l”by taking the said disability.
1l’l}lf–‘l;2}.~: lperusal of the Trial Court records would
shoyvg when wound certificate and discharge
if ll..j’jw»sAu’frri-rnary are read together with the evidence of the
‘ Doctor it would show that particular limb disability is to
fig/.
the extent of 20%. Thus the whole body disability
would be around 6.66% i.e.. 1/31″ of particular limb
disability which can be rounded off
accordingly disability to the whole body
arrived at 7%.
12. The Tribunal lfiavirig taken’ fii’1«c.0.mle at-6′
Rs.5,000/w and the said “riot being
under challenge it can be
safely held that__ is at
Rs.5,000/:__–.~ ted under the
h eadiizig loss. ()”f V-Fl.’l-.l_lLVi’1’_(3l “in_oeIi1e.
_.fi3. age of claimant as on the date of
. .”’–.att{:ideh’1iA xzfias 37 and the appropriate multiplier
be-.la~dopt:ed would be 15 as per Sarla Verma
afid ogihersl vs. Delhi Transport Corporation and
ll”l”–..l:”‘anotIie:’:. reported in 2009 ACJ pg. 1298. Hence
–.:l”c’§._lCll’L’3ptil”Ig the multiplier of 15 and taking into
~»vc:’or1siderai,io1o1 the disability at 7% the comper1sa_tion
that becomes payable to the claimant under the heading
loss of future income would be Rs.63.0OO/A nan1e__1y 7%
of 5,000 = 350 x 12 x 15 = 63,000. A(:c<)rdi.n:'gi"y.<a
compensation of Rs.63,000/~ is awarded?"
heading loss of future income.
14. insofar as the com_pensation aixfvarde.dvVu11derVi’
the heading pain and suffe_ri’ngs’.,_1 the opinion
that considering the”‘niat.ui*.e -rnedicai evidence
on record inc1_ud_ing the by the Doctor —
PW.2 a fI,’1I.’f,3;1vF;’I’ 5c0’mpeii_sat_ioi.1 Rs.év0,000/- is required
to be:7awar heading and accordingly it
is so awarded. _ V
15. The claimani has undergone surgery twice
andi'”co~rr1.:pensation awarded under the heading
in”ci_den’t’aIncharges is Rs.5.000/~ which according to this
.CVo_urt.’=—is on the lower side and hence a further
“g_com’f:)ensation of Rs.5,000/– is awarded under the
” ~–‘heading food. nourishment. attendant charges and
incidetltal charges in addition to what. has been
awarded by the Tribunal.
16. Thus additional compe»ns.ati01’§H§\fh1’e1¥
payable by the first respondent. IEQ ‘elazii-amen’:
Rs.88,000/–:
1. Loss of future ineonje I5{‘s’.’83;€)§OO/~
{not awarded by tI’i”e:e”«’lT”1fil’31_,1_Ifg2V;1′,7_]” _V
2. Pain and Su.fferings– 1:» _ 1″.1_’Rs.2O.O0O/-
(in additi;3t17§jfi1’Rdg.;5é,0:QO79″ u
awarded V A
3. ‘aftefi’da:’1′{
‘ ” : Rs.5,000/»
(in é1dd4iti0r’1’t.d
e_1warde’d Trihwfiinal}
A Tefalfl eeeee : Rs.88,000[-
v.AE:et;rdin:gly the compensation is enhanced and
pe.i_nt.v_No,’1–‘Ais answered in favour of the ciaimant M
” ($P__’__,___ …. ..
In view of the above, the following order is passed:
ORDER
The appeal is allowed in part.
awarded by the Tribunal is enl’Ianr.:ed-‘_’by,4awarding an ‘
additional compensation of 4’
Carry interest at the rate o.1f”’69A) iA:”.()if’I”\1 ‘date of’
petition till the da’te_p OiitV”‘ofr”lthe said
compensation enhanee.d’ ll 50% with
proportionate»;-lnttereatll Fixed Deposit in
any of the appellant for
a period of riv¢;yéa’rs lelaimant would
be entitled interest. The
remaining {E00/Q proportlionate interest shall be
relelaeetl “favo’ur “(Jfthe appellant – claimant forthwith.
No order to
Sd/-
“JUDGE