High Court Karnataka High Court

Smt Sharadamma vs Sri Manohar Ladwa on 10 December, 2009

Karnataka High Court
Smt Sharadamma vs Sri Manohar Ladwa on 10 December, 2009
Author: Anand Byrareddy
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