IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DI-IRAWAD _ __
DATED T HIS THE 15'"! DAY OF SEPTEMBER,'v3G»1 O._v
BEFORE /2 "\ r:
HON'BLE MR. JUSTICE ARAVIND _Ié'."-*-.',.'*'.1_\}'1f:;AVI{--.::: V4'
M.F.A. No.35s3/20191 (M9) V ' 'V
BETWEEN:
SANJEEV s/0 S1-IIVAJI KHAMAKARV
AGE: 18 YRS, occ: C.LEAR1'\E.E:'R'QF TRUCK,
R/O ATHAN1, TQ: AT'};AI-:1, ;
BELGAUM "
V ' g ...APPELLANT
(By Sri. HARISH S._M'1~\.IGU§R ADvi0CA:fE FOR '
Sri. M B NAR<;';g.NI3 A--.p\?Q"CAT'E)
AND:
1. PRAEHU ADJRVNATH sANN_AI<K1.
AGE:":MA--JOR,"C-'CCERl3USAIN--E'SS,
R /0 ATHANI, TQ3 .ATHA.N'I»»,«.
BELGAUM V
oREI3:iv1'?AL INSURANCE co LTD,
Cm~' BRANCH OF'FI'C'E NO.2
E 'SUEHASHROAD, LAXIVEIPURI
rNE;;r'\.R"UIVIATALKIES,
*gKQLHRPuR-jV
?~'
THROUGH «ITS DIVISIONAL MANAGER
, ORIE.N'1'AL INSURANCE CO LTD
AADIVISION OFFICE}
INSHANBHAC} COMPLEX
' K-IRLOSKAR ROAD
"BELGAUM.
RESPONDENTS
Sri. IVIAHANTESH S HOSMATH FOR R1;
SR1 H. T. JAGADEZESH ADV(.)CAT¥i? F(f)R
SR1 S. SRISHAILA ADVCDCATE F()R R2}
THIS MFA IS FILED U/S 173(1) (JP MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 14.03.2001 PASSED IN
MVC N().l4’7S/93, ON THE FILE OF ADDL. MACT, ANEf);’ClVlL
JUDGE, {SR DN) AND ASST. Sl?:3SSIOi\lS K.}Ul7)(V}E:,”‘A5T.Ifl’ANi,
PARTLY ALLOWI N(.} THE CLAI M §3E3’l’l’f’l_(f).l_\f:’ » ‘
COMPE}NSATl(f)N.
THIS APPEAL COl\/EING ON ms HEARENG’ ‘*
comm” DELIVERED THE FOLLOWING ”
JUDGMENT A
This appeal is by the claimantquestioning; and A
correctness of the award g3a.ssed,ii’i’ –I.\i/:£_:’.7(l§”-»I\’l<}.1<3i7'5fA1993 dated
14.03.2001, not being satisfied'rW'isth3*icornlpieiisation awarded by
the tribunal.
accident that _occt;irredi’onQ11″.-Q5.lj993 at about 6.30 a.rn., the
claimant soughlt for =pay.rrie;nt«.._ofJcornpensation contending that
he had s1.1.f§<?rt*d ;je1fn3é1ri'ent'physical disability' and was unable to
&in'c*–f1tit5tir<e:.l'l'Respondents appeared before the tribunal and
coiiitelstczdort:h'e._13'iat1'_ci:. by filing statement of obj<:ctioris. On the
*.basis of plearlingis', tribunal framed issues for its consideration.
~..i'_f–..Theree1fter;_claimant got himself examhicd as PW«1 and
1' ex"3.–n1i.net§_«tx\='c) doctors as PWMS and PW–4 2-.-ind also examined the
'"1-.g)l1xi}*11erj% of the ciffeiiciing vehicle in which the claimant was
traxrellingg and which was belonging to the saictl wit.ncss, namely
1 PW-2. The 1"<?spii?2tl1’i1s did not leacl. any C’V1(‘1.{.?.§’](.T(.’ 21 nd the policy
in <;ticst:ion issueol to the (')f{e'nc§in§; vehicle was got m.arl»<:ed as
ggfl… –
:3:
Ex.R-1. On the basis of the pleadings and evidence on record,
tribunal by its judgment, awarded a l(){Z-Ii t'<J1npe1is:ati0n of
390,584/~ under the following heacis:- l
(i) Loss of future income: ;. it ‘
(ii) Fracture of radius and aEna l _ it in
and for dislocation of.ri’gh»t.” _’ M ‘4
clavicle : A’; ” f
(iii) Mentai agony: :
(iv) Medical exr3er1s¢la””se;’..:.l” H
(v) Loss ofea.r_ningsi:l”l_:’ lilV'<V'l75O/-
(vi) Boarding’ Ii. 32.500/_
-,”*irQTuA’i_’;§* iv Rs.90,584I-
3. Heardjlthe le}3;Arne(i..adv0ea’te.s appearing for parties.
4. Sri li-lalrish”Sr;.VNiaigL1r,.–~ learned cotmt-sol appearing for
appellant wouild submit tlf1at~~-‘eompensation awarded by tribunal
‘is_0n lefaver sidellav-,d««eontends that clisabiiity considered by
ltriibiinal. r:mrary to ci0ctor’s evidence, since the doctor
haslstated that ciairnant has suffered disability to an extent of
55%. He. \$>oL1ld submit that entire evidence when read together
A ‘J..V:’iGl3ilCVli”(.’;’lf3&1.I’l_’_y’ gt} to 5′-3l’lOW’ that functional (.§isz-i.l.)iii1,}-‘ suffered by
—rrlaiinant is 1G()% and as such he contends t.1iat. tribunal erred in
“~.asSessin,.; the loss o_f_fi…=.ture esarnirzg cafjacrify by–‘ l’Ej2l<lI1§~_§ disability
at 30%. He woulci also e<)nt.end tliat tE'll)'LEl'1é'.1l aiuglii 10 have
t.a§»:en the lI1('(.)]'T}(:3 of t}:2.e appellant. at ?l5,{}()()f– per anrmrn. as
against ?'9UO,/W per month and he seeks for enharieement. of
compensation under above. heading and als<'} wider the heading
loss of amenities.
5. Per contra, HT. Jagadeesh, learned ec>L,.1r7–;:”;el .
for second respondent/insirzrer wouldmeoiitendi”t’l1es’t.’.§i{idgmeiné”
and award passed by the tribunai is i11:_”‘C()~’:”iS{3J1anC€ “the
evidence on record and contends that._iit d<)es" eaiii for".
interference and accordingly, he iiseelis l"or'"e:_lis'r'nissal of the
appeal.
6. Having heard the~1a:a.1fned-eot1iise1&l'(>r ‘parties and after
having perused_t_he Jfu’d.gmenti and aw.ardi’p’assed. by the tribunal
and aiso on perusal*ofithe”niiateriai evidence available on record,
it is seen that’ doctor treated the claimant has not
stated ijnhis evidenieeiianything with regard to the percentage of
disabiiiity by the claimant. The said doctor was the best
iwhlq-.s.,v:?{>t1Vl.dVhave spoken to about the disability suffered
and he_ Co};1id_vii1:iave also stated the ;3ereen1.agge of disabiiity that
it “~._e’iaimanthHas suffered. However, he has not chosen to do so. Be
l _»as’;it inaly, claimant had obtained the disal:)i.ii.ty certificate
—–_w§”1i.eh is at Ex.F’«3S to establish to what was the extent of
. 4;disa.b§1it_\;’ st.1l’fe’retl h_\;’ him and what was the. pc:r1:e1’1tage of
LllS&1btli{},-“‘ suffered, ttmimant has examined one Dr, Mohan i}3ab%.1
‘I’i,11~;.ade, as PW«4. The said witness has st;.:’it.(‘:t.i ihat permanent:
physical disability that claimant has suffered to the left upper
limb was 55% and he has also stated that there is 20%
moderate restruction of wrist moverrient and 25% for defor,rriity
and restruction of thumb and fingers and 10% for nt’§n¥u«ifi_iori”
alna. Further, he has also admitted in the cross.V.e§<:air1–ir1ationii'
that he has not treated the claimant. He had seen f
only at the time of issuing disabilityfl Certificate has
stated. that with the help of right–ha'i1.d,trtlyaimanltjcaifi in a
vehicle by clinging to bars,':h..e bucket.
Though, Sri Harish S. Maigur, disability is to
be taken at 100″/’o,§.saiiie’–cari;Anoti yiew of the over”
whelrning evidez1eeii’:b_{~,.1j on record. The
tribunal has d«i_s”abili-ty at 30% to the whole body
and awarded, iconipensation’–.._Viiori the basis of the same.
Considering the rriedie’aI evidence available on record, and after
gg .?.grus’ed the photographs of the claimant at Exs.P~31 and
32iia.nd_i.the.,disa’biii’ity}~certificate at Ex.Pw35, this Court is of the
i”=”eorisidered viewiithat the disability that can be assessed cannot
-«i.i’_f:..exce,ed beyond 40%. If each of disability as assessed by the
doctor./l3ilW–4 is ta.l<en, the whole body disability at 1/31"} would
36% which can be rounded off to 40%. Accordingly,
._permanent physical disability is fixed at 40%.
5
:6:
7. In so far as the income, that has been taken by the
tribunal into consideration for assessing the compensation, is in
consonance with the avocation of the claimant, Va-‘hi<:hv.Vwas~.._e1
Cleaner as on the date. of accident. Hence, the conte.n:t..ilor1§_of.{lira _
learned counsel for the appellant that income claimant'
could be taken at ?l:3,000/- per anntiprn i-sen/'itl1oii.tl'any7'basis»l
and accordingly it is rejected. The' income .of'?°9OO3f«l'i' 'perlmognth
taken by the tribunal is hereby conlir'rn_le'd._
8. The appropriate to vbewaplpiied in the instant
case by virtue of the dicta laid..down «b}»;s,ptrie”apel§;”court in SARLA
VERMA’s case bed’-’18f_.not””‘1’6’ as taken into
considerationillliiiyopthe liTf;ribti’n_al( View of the same, the
Cornpensatioin tinder the~.h’eading_.loss of future income requires
to be reassesseCi–«.and. Vfe¢¢:npu.i;=,d, which would be ?900/»» X 12
.:'<vl_8 = '- iiThi.S…Court having assessed the disability at
4.0?/o,;l'the -vcompeelrisation that becomes payable would be
Rs.77'-,7tfi()'/ ~.lun_:V:ler'e:tll1e head loss of future income.
9. it.lAl’:S seen from the judgment and award that the
trivb}.:;na.ll”*~.’ha.s erroneously not considered awarding any
_c’ompen.sation L2{}ClC1′ the heading loss of amenities and
considering the injuries sustained and the ciisa.bility that has
occurred to {lac clairnant, it would be necessary to award
coznpensatéen L.iE1(.’l.(“1” the headirig loss of cmzenities, which
on
or
according to this Cotirt would be a sum of 325,000/–.
Accordingly, the same is awarded.
30. The ciaimarit was an inpatient for 125 de1ys…ar1d:i~has
taken treatment and by virtue of the injuries sustaiiiec}~,..’_’i*t-e_mas’ _
confined to his house without carrying on ar1}’~–:tax{_r)’cVVe.tiori«. .oh-.,
account of injuries sustained nameiy]frac_ttir3:e i’qf”left._u1nar arid’
radius as also dislocation of right ciavi’ea1i,*~this [(3-otitrit is of theh
considered View that ciaimant be iéiitx-f2ir<;1–réd sum of
330,000/– towards pain anioi~~.suffe'rfr1gii.
11. The compensatiorrawarded ._ tribunal towards
medical experises aE3y”sr11a’113}’ ‘1ow…….th.is Court is of the
considered View VtVhiat”v.the»ciaima1’:t.~ has to be awarded a sum of
315,000/– tznider i’the”.:’headii’imedical expenses, food and
nourish§7iei1.t and eoneeyarice in as much as the ciairnant was an
, iIi1i1ii>e.tiie”nt aiiperiod of 25 days.
;tiei*V’t1s2:i of the Exs.P–3f3 and 36 and the
photogr-ap}<isi 'produced by the claimants, it is seen that the
"iv.i'c1Laimant has suffered injuries, on accourit of which there is a
siight–di'sfig'L1re=;1tior1 to the right" hand, on aeeotint. of which, the
'po.ss'ibiIities of gettiizg married is aiso redticed and considering
this aspect also the of the claimemt as on 'the date of
a<:cideI1t:, a sum of €"*§t),0OU/– deserves to he E1\\'I:t§"('i(:?('i tinder the
W
: 8 :
heading loss of marriage prospects. Accc’)rdiii;2;}_v, the same is
awarcieci.
13. in View of the above discussion, the jLtdgrriéin4t’i21nd
award passed by the tribunal is modified and the ooiript:’ii-s:a’ti:or3«A
is awarded, as herein above, would be in modi-fic_é1:tii<)n_'and iii.' "
substitution to the compensation é.w.21rd,ti!cl be. erijtitlcd
to is as followsr»
(i) Loss of iutV:,5re iiiooriied _
€900/~ X ~32 X is it 40% .;j t _ ‘€77,760!-
(ii) with aflf3″‘s’uffé’t7ihQ’:Q’,,. it $309001-
(iii). of éméniiieegi j; i 225,000/–
__(ivi)i M.e_d’isaI ‘s§pe_nses, food &
‘ _ nou’rish:n_.énti ‘oonveyance,
V t’tan’sp’o{tat.ion & attendant
– oha_rge_S:=…~’ ?15,000/-
(y) i”Las._S__Qfmarriage prospects: ?’10,000i-
TOTAL: 31,57,760!-
2:4. Sir; .\riew of the above discussion: the following order is
” If”–__pdassed:– ”
O R D E R
(i) The appeai is aiiowed in part
(ii) The judgment and award passed by the
tribunai is modified and a compensation of
?’i.57,”?6O/A is awatdod in substitution to what
at”
t%
has been awarded by the trébunai;
(iii) The said amount shat! carry interest at the’
rate of 6% per annurn from the date
petition till the date of payment or;’_d’epo’s–it,: r.-
whichever is earlier; i it in i
(iv) 50% of the award arrtountéjiis. csaé-‘r¢d.:tc..
kept in fixed deposit’*.i’_nb:’*th.e nan_:e”of it
appeliant in ain_y”‘–~.nationaiised _ a”
period of five and ._iaippeiEajnt is
entitled to~withdra’\5r peréodlicat interest.
(V) The baian”c_:e’i’ :bord’ered:4.i’toi.’–be released
_ En”fa–v_our¥ofthe’_appet%ba_nt;u ‘
(v?’)’H deposit the entire
..Jiit.am’5?:ghr aisflgwrardedii herein above, within a
V peri’o.d:iofvtodrwweeks from the date of receipt
of”ce’rtiffie.d””copy of the judgment and award
” r_:befor’e tribunal;
. E’…-LV’ir”fEviV”)’.”‘ No as to costs; ‘
JUDGE