IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10TH DAY OF DECEMBERQSOQQ BEFORE: THE RONELE MR. JUSTICE ANAND _: I' MISCELLANEOUS F1 RST APPEALS.-N.d.34.1E6 OF' I BETWEEN: Smt" Sharadamma .. _ W/O Sri.Thimmeg0wda" E' , Aged About 46 Years I R/At K R Ext§:r,IS10_n A E ' Tumkur I f "'.,';';¢';PPELLANT [By Shri: & Sat1Iyap.E},"§I3xd\5<;cEII,e:Sj~« _ ' AND : 1 ; 'Sr: Me§noh'ar" LaIi\v;:I Mgjor, M/Slvlanuman Motor Service H':31dWé:..Street., Harihara 577005 " %«T1'Ié"'N_euf'iVhdia Assurance V Corriptmy Limited N:;.24'9/I And 2. Shamanur Buiiding E " Chamarajpet, _:.'Davar1agere 577002 By its Divisionai Manager RESPONDENTS
” (By Shri: A.K.Bhat, Advocate for Respondent-2}
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This Miscellaneous First Appeal is filed under
Section 173(1) of the Motor Vehicles Act, 1988, against
the judgment and award dated 31.10.2007 passed in
MVC No.426/ 2002 on the file of the Presidirigl’Oi”ficer,
Fast Track Court-V <3: Additional IVEACT,
allowing the claim petition for compensation._and-.seekinlg V'
enhancement for compensation.
This Appeal coming on for ladrriissiiorrl ‘ttiie
Court delivered the following; ‘ ” ‘ ‘-
Junoeivgmig ‘
The appeal coming _o1i forjad.rniAs’si»on is considered
for final disposal, “1f”C§ard«V.’tol’lthe facts and
circumstances. ‘ 0
2. The” appellafntl =was about 42 and she was
employedlassllavtalilorp, she had met with an accident
in serioii–s«’injuries which required sustained
grafting and surgery for removal of
foreign bodies” and damage caused to major nerves of her
lgleft elbow. As a result of the same, even after treatment,
i.,:”_,shel.jltrJas left with a permanent disability of 40% to the
wliinb. According to the medical practitioner. it
would translate to a whole hody disability of 20%. The
Motor Accident Claims Tribunal [hereinafter referred to
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as ‘the Tribunal’ for brevity] however on a claim for
compensation has awarded various amounts in a total
sum of Rs.1,79,500/e with interest thereon. Itfjiseptuliis
which is under challenge seeking er1ha1icernent,;.t’VV’.___l’ . it
3. The Counsel for the appellant woulci..l..su.bn:1″rt”ithlatl»t
the appellant had to underglo”‘«sus«tainedl._ irnedivcalb
treatment and she has Vproducedl.
expenditure exceeding Rs.”}i.gC4,00tl/«.u.,_l
however has granted’~the .e§§actlj4arrl()Aunt to the ruppee
while:’tign’ori.ng that””there are other expenses
whjchxare..nVo[. bills. and the appellant was
entitled aslla inatterl’oflc’oL1rse. The Tribunal insisting on
l:)’il1s~-.wouldlpiace the appellant at a disadvantage
ai1d’theijet*oie_.”_11e has been denied of a just compensation
towards .rr1’e.:liCal expenses.
Counsel would also submit that the income of
uh’V-.Ath.erappe11ant has been taken at Rs.l.500/–. though she
ll .._was capable of earning more than Rs..’3000 to Rs.4iOOO/~
per month as a tailor. T he compensation has thus been
reduced under various tgxds. on the basis of the low
income attributed to the appellant. The appellant is thus
entitled to loss of income during the period of treatment.
She is also entitled to loss of future ea1’nJI:ng’
on account of the permanent disability she’ “hla_rblours and”.
the Counsel would submit
miscellaneous eXpenditure,l_ “‘!zgIhich’v~ has ~just1y.l’
compensated while co11te11di11ugiA”vt_hat the “apypeVI_lant ought
to be awarded larger under the other
Conventional heacds ofclaim
4. fi’hhel’CAo.uriseli reslpondeiit on the other hand
would submit will have to be considered
on merits therefore}: the records ought to be called
“V….,fQr-l:c._,§_hti’tr.further”lonmthe face of it, the Tribunal having
that was suggested by the medical
practitioner} as on account of the medical practitioner
ill'”-__lV'”having-…exaggerat.ed the whole body disability at 20%,
it the disability in respect of the upper limb was
about 40%, this is not in accordance with the accepted
medical norms and th_erefo1’e, the Tribunal having
possibly entertained dou .s as to the correctness of the
assessment has ignored the same. T his Cannot be held
to be an infirmity.
Insofar as the medical expenses are con~e.erri_es’d.j;
the appellant has produced extensive
the same, it cannot be imagined
to produce the other bills ,fo.1j_ other_ve:;pene(jiture.«. ‘Fhere
no warrant for enhancing thel’i’arnot1.nte.l ‘ ”
Insofar as the Vc–1ai’–m –‘to\§.rard.s»vvhlo.ss of earning is
concerned, there is m_ate’rial, p’l’acedI_belore the Court.
The selfvser\?ing;;1:i’el_jairrtthat she..lvwa’s”‘e’mployed as a tailor
is not ‘leVid’en.,eed a_n’3r_”rnatelrial. There is no warrant for
interference, ‘ the award of loss of earning
capacity or lo’ssll'”of income during the period of
treat’rr§ent’;’..ln thlemabsentte of material., the Tribunal
atleast, a sum of Rs.l500/– is also
wi’t..hoLtt~bé1sis and the-reiore. there is no room for
enhancen1ent:.
” Given these rival contentions, suggestion that the
appeal should be heard on merits, after calling for the
record may not be necessary. On the face of it, it is seen
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that the material available and which is referred 1:0 in
the judgement is adequate for the disposal of this ‘appeal.
The appellant was an ablewbodied person,
when she met with accident. Even assumiiigv her,
avocation as a tailor was not es:tabl.ish}eci–._ it_canw.b.te said
that she was capable of earning Rs,3l(500/
this is applied insofar as the4ll’lo:ss.uof earning capacity is
concerned, the appeiiaritpwa.s_’en*titled__to a substantial
sum which hasbeen ll
Insofar’as:-.’th»e:«_di_sab«ility concerned, even
assuming; there an incorrect assessment by the
medical.practi–tio’n:er,”«..__:”ag..—opposed to accepted medical
norms, this _dis.a,’3i1Ai’L.yl’witli a person with 40% disability
“-to 51imb,.would”h’arbour a disability to the whole body
20%. This is an area which requires
expertise therefore, the medical opinion cannot; be
whollyvi.g’noi*ed. However, to err on the side of prudence,
-is..’t”app1’opriat.e to adopt the percentage of disability at
..,_.lF3% in which event, applying the multiplier method, the
appellant would be entitled to a sum of Rs.65,520/~
towards loss of earning cgacity.
Further, the appellant would also be entitled to
atleast three months earnings towards loss of Vtihrieorne
during the period of treatment and is
Rs.9000/»– towards loss of income du1’in.g,lV_t:lielperiod
treatment.
Insofar as the rni’se_ellan’eous expenditure ”
concerned, the Tribunal has ded of :lRs.6000/–
which ought to be V further sum of
Rseooo/-.
Insofar as inedieal expensesllare concerned, as
rightly’il”pointe.d byfthe _”lCou1’1sel, it is not to be
expected. that would document bills in
respect of t’ne_:lmec’iicia.l expenses to the fullest extent and
produced bills to the extent of
an indication that she has undergone
sustained ttreatment Costing much and therefore, it can
saleylyi’ presurned that there were other miscellaneous
–expenditu1*e bills may not have been produced before the
…Ti*ibunal . Hence, the appellant is entitled to a further
sum of Rs. l5000/- towards medical expenses.
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The appellant. suffering from a permanent
disability is ceriiairily deprived of amenities thrciiighout
her life and therefore, the Tribunal ought.’.’_&>f£hr’l;”1:a’»ze
awarded compensation towards loss of a_me_hi.tie–s:;’ f_W’hi’Cl’1x
in the opinion of this Court woiald he
amount awarded towards pain and suffering. rd in é; sum’,
of Rs.25.000/~ and the samevlvlis.awarded; ‘
Accordingly, the in part. The
appellant is held enti1;l.ed._i0 compensation
of Rs. i,20,5.?:(3/ annum from the
date Qi*lellai’1*rii.9vf,_V lxff’
l _ i JUDGE