IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT
DHARWAD.
DATED THIS THE 5TH DAY OF JANUARY 2010
PRESENT
TI-IE HONBLE MRJUSTICE K.L.MANJUNATH" A ;;.[i f :.-
AND
THE HONBLE MR. JUSTICE ARAVINAD KIJMAR 4'
Miscelianeous First Appe'a.1__No. of 2
Between: 'V A A A A A
Hanumanth Timmappa Naik ..
Aged 26 years A' '
Ex--Latrite Stone Cutter H
R/o Keremane, Gunavante Post A' ' - _ - '
I-IonavarTa1uk A .. Appellant
(By Sri Siddappa.SV;u:3ajjia1z,'"AdVoCa'te for Sri Ravi G.Sabhahit,
Advocate) * ' V "
And:
if. M:'.K.'i\JI{1n¢e::r A. """
'~.Owner of Marutiucar No.TN--21/V~1255
C¢32,e_A11na.,Na,{§ar East
Chennai, _6Q'o" 101
E Tami1__Nadu_ State
Divisional Manager
_ " 2 "U3ni~t'eAC1__ India Insurance Company Ltd.
A' f;").iVi.sio1"'i_. Office, Karwar .. Respondents
A” ‘SriV’j§D.Vijaya Kumar, Advocate for R~2, Rwl notice D / W)
M
This miscellaneous first appeal is filed u/ S 173(1) of MV Act
against the judgment and award dt. 03.04.2002 passed in MVC
330.553/2000 on the file of the Dist. Judge and Member, MACT,
Karwar, partly allowing the claim petition for compensation and
etc. i *
This appeal coming on for hearing this day,
delivered the following: ~
JUDGMENT g
The appellant was claimant in
file of IVEACT, Karwar. The claimi._p’etition”‘was
compensation on account of the inj1.1rie.S -fiustain’gd..)byJ3him in a
road traffic accident that ocicurred at about 21.30
hrs. on National I-Iighj2_I.=ay_. on account of
the rash and No.TN 21 \/-1255.
According to’x_hir(1., 22 years. He was a stone
cutter. Immedkitelyj after)l.:tiie:’_.accident he was shifted to KMC
hospital, ),?.\_§?ianipal.l (there as an inpatient for a period of
ci:~(,,._. ‘(undergone surgery. He had sustained the
fo11oixfing”injiarilég.;___
1. (Com-pletelbrachial plexus injury (R) upper limb.
if 2. ,Type”IlI open fracture both bones (R) forearm.
0 “Fiiacture of 2nd 85 3rd metacarpal (R) hand.
i Fracture of proximal phalynges of 2nd, 3″‘ 85 43* toes,
0 distal phalynx fracture of 5th toe.
<5"
4. 10×5 cm. Lacerated wound over the cubital fossa (R)
exposing entre cubital fossa with underlying fascia.
5. 6×3 crn. Lacerated wound entering across the 2nd,;3fS1, 431
metacarpals on the dorsal aspect of the hand. i 3
6. 5×1 cm. cut lacerated wound at the 151 web s__oTac’e;i;- –1-
7. Swelling 85 deformity of proximal third of
8. Doubtful vascularity of the radial andbrachial*arteriese.3 at
9. A curved lacerated woundc’of_6x3ll’cI”nI of
the patella.
10. A lacerated wound over” ‘heads it er-..3:d; 4t”, 5&1
metacarsals extendin_g”ft.o the space.
2. Contending that he hasdbecornety_plerniaiiently disabled, he
claimed The insurance company
contested the allegation that the accident
occurred on _accou’nt:iof.theirashiland negligent driving of the driver
i_Aiccordingito””the insurance company, the accident
occurred ld11:e”«..to».iiiccin’tributory negligence of the appellant. The
l V’«…insuran’cellcompalnylalso denied the income of the appellant. The
..i_ljjtriale.,pcourt ‘relying upon the disability certificate issued by Dr.
Kumar, Assistant Professor of Orthopaedics, Kasturba
i” lffM_e’dica.l College, Manipal came to the conclusion thwis right
upper limb is completely disabled and the same is assessed at
95%. Since he was a stone cutter, he has taken the functional
disability at 95% and considering his income at the rate of./–
per day has awarded a compensation of T.
head future loss of income and a sum ofMRs.1,OO;’O0iC)_/ 5-T’tov.:a1*ds ” *
medical expenses and attendant charges. Ultirr;ate.13i-.the
awarded a compensation of Rs. 4;j0O__,.0OOi/ Being”i’nAot_satisfiedH;
with the award the present appeal is by the”appe’llanjt, seeking
enhancement of the compensation. _V s _
3. We have heard learned -coun«sel’ appeérirvng for the parties.
The main oi iiappel1anti’siicounsel before us is that
the Tribunal not of the appellant properly.
According to ashstoineiicutter he was getting an income of
/ – and that the Tribunal has committed
a s’ccri(9’VL1:s”ei:”ror ».ii”n.l_:ii§<ing the income at Rs.50/- per day and
T ii'~….Rs.1,5Cl0_;/T; p.miit: further contends that the compensation has
been awarded under the head loss of marriage prospects and
'i._i_:'l._ss«i.T’cfVamenities of life. Therefore he requests the Court to
. i-ifrea’ppreciate the evidence and award just and proper compensation
{*1
to the appellant by enhancing the compensation awarded by the
Tribunal.
4. Admittedly, the appellant is a stone cutter
He contends that he was earning a sum—o’f’I?.s.3(_)¢Ou In
his evidence he has stated that he was la of
to Rs.250/– per day. Admittedly alhfwo whe-ele’r;.V’Theij said” i
vehicle is also shown in the_FIR. :Therefore, it ils’c.1.8ar§ that 12116
appellant as a stone cutter wasilivingv life having a two
wheeler of his own. no :;iou’bt:i;true.:thgatV’appellant has not
produced any positive to,’ shoxifvthe actual income of the
appellant. proof in support of his
income, consvidenng ac’cident a minimum of Rs.100/–
has to be taken aas”inVcom’e ‘stone cutter. Accordingly, we hold
t.hVat=t1’1e gettilng an income of Rs.3,000/– p.m. He
was’ Considering his age, we have to apply
‘ V….the mu’lt_iplier_ pofilglié. Considering the nature of injuries and
..lpipi’_fdi.sabVility to” right upper limb, We have to calculate the actual
4’._’_”1oss«.of.Vinc’ome. According to us, the loss of income per month
i” 7ig”w§u’1d”g:be Rs.3,000 x 12 = Rs.36,000/– x 18 multiplier =
$4
Rs.6,48,000/– out of which 5% has to be deducted since 95% is
taken as the disability. If it is so, the actual future loss of income
would be Rs.6,15,600/– and the same is rounded to
Rs.6,l5,500/-. in addition to that a sum of
been awarded by the trial court considering the T
the periodlof stay at the hospital and we pr’opose._t0– interfe_re
with the said amount.
5. The Tribunal has not ccJn_s’ideredA”-theloss’
prospects on account of the injury byhthe. appellant and
also the loss of amenities in ‘As%.i_a:Vy4ot1;ng’1nan the appellant
has to lead disability of right upper
limb to an aged about 22 years. Therefore,
we are inclined to”av§rard…a Rs.60,000/ – under the head loss
ainepnities lifeyandl loss’ of marriage prospects. Thus in all the
appeol.la;\\\T’»t..I;a claim compensation as hereunder:
ii) income Rs.6,15,500/–
(ii) Meiciieial expenses and
is oaruattendant charges Rs.1,00,000/-
{iii} Loss of marriage prospects
and loss of amenities in life Rs. 60,000/–
/
Thus in all the appellant is entitled for a total compensation
of Rs.7,75,500/~.
6. In the result the appeal is allowed in paaft;
compensation awarded by the Tribunal is enhanced’v:.e:”‘frofin *
Rs.4,00,000/— to Rs.’7,’75,500/~. The _e.nh_ancedVHleolnpenséation
shall carry interest at 6% p.a. from the date oft petition till the-datte
of payment. Out of the enhance_d~..gompensationi “of; then!’
amount with proportionate interest___VVa:;eru_ped th’er¢onJ§shall be
invested in the name of the«–.a’p_pe–lla:.}t»v ._’I’ribunal in any
nationalised bank for aV.period.Vof.fifve Vye«a1fs}w”He””is’ ‘entitled to draw
the -periodical arnonnt shall be released to the
appellant.
33/:
aaaaa 14 . Judge
Sdf-if
Judge