EN TEE HIGH OOORE OE KARNATAKA AT BANGALORE
DATED THIS THE 22M}DAX OE OCTOBER, 2009 yya'
BEFORE:
THE HON'BLE MR. JUSTICE v.JAGANNAIEAN,yff
MISCELLANEOUS FIRST APPEAL No.I497§Eg§ gggj°{MV1,'if
BETWEEN:
Giriyappa,
S/O.
Chikkabyatappa,
Aged about 29 years,
R/at No.166,_?" Cross,
Devasandra, _ ; _ ,--y ''p
BangalOrew560 036.34' .€'§y" "._*":,;
[By Sri. N.O§pa;krisEna}§Aav.
K.RrPuram,
APPELLANT/S
s.3,_: 'I -.
AND:
E.
C.ByregoWéa;yV _ A V';
S/o.vChikkamOniyappd,"
Major by.age:V
x *R/ati'Bavanahalliwvillage & Post,
'DJ
'1 Rap. by its Manager.
. Branch Office,
KaSabaAflObli,
'yMalOr1TOwn;g
'ficlar Uéstribti
The Bnited India Insurance Company Ltd.,
I Fioor,
"Bagalur-ManSiOn,
.fDOddapet,
'KOlar--563 101,
RESPONDENT/S
{By Sri. M.R.Shalamala, Adv. for R1 [absentfi
Sri. S.KriShna Kishore, for R2.}
zk-A’*
2 MFA l4973/O7
This MFA is filed u/Sec. 173(1) of the M.V. Act
against the Judgment and Award dated 25.4.2097
passed in MVC No.2015/2006 on the file of X:E.Addl,
Judge, Court of Small Causes, Member, .uMACE,dag_}
the Court delivered the followingi, 2
JUDGEMEX:
The appellant seating. enhancement of the
compensation on the grease that the MAEE had failed
to take into apcount tha iossiof earning capacity
35% as per the medipal euidence on record, loss of
amenitiesj and’ alsoW loss, oi income during the
treatment period. V
2{fi%;,The learned counsel for the appellant
stbmitsa that gin._the doctor’s evidence before the
if; VTribudal, he has clearly stated that the appellant
7_ has got 35% disahiiity for the whole body following
_ the fracture of both the bones of right tibia and
fracture of right femur and as there is a nonwunion
-of the right femur and right tibia and dislocation
“55 right shoulder, the doctor had opined that the
disability is at 35% for the whole body. The MAC?
erred in taking the disability at 15%. More over,
E’
3 MFA 149?3/07
the appellant is a mason by occupation and with the
aforesaid disability the earning capacity reduced to_
great extent. He has sought for enhancement tofiardsq *
loss of amenities and enjoyment in life and loss of ”
income during the treatment period of €_fi©fithSglfi_l
View of the treatment taken for” fiixation :of*
interlocking nail.
3. Sri. O.Mahesh,?ilearnedimcdnnsel for the
Insurance Companyvplacing reliance pfiffithe decision
reported in 138: aéd ad ghahuchafifia fig. Anantharaman
& Ors] submits that as the’in§ured§claimant did not
co–operabs with fling doctor _ami refused tr) undergo
operation ofi his leg, the damages will have to be
reduced -on that -account and consequently, the
?compensation would also come down.
d_4ta 1 have heard the iearned counsel for both
side.
ini, As for as the decision referred supra by the
learned counsel Sri. O.Mahesh is concerned, that was
a -case where the Court foundi on facts that the
Aninjuredwclaimant did not co~operate with the doctor
and, refused. to undergo operation of his leg and
%
g ;
4 MFA 14973/07
therefore, it is in these circumstances the Court
took the view that the damages will have to _he
reduced on that account, whereas in the case before ”
us, it was not refusal on the part of themappellanti”
to undergo operation, but there was delay_in”getting_,
treatment on account of financial reasons,a As such,*
the aforesaid decision is finapplicahleT {Q the
instant case.
6. On going xthrough» the*_eVidence° on record,
particularly tbdt of Dr}PLManohar, iwam of the view
that the loss. of_ earning._capacity taken as 35%
V …. ..A’, *g,_»a.y «-i f N
having regard_to the nature_of the injury sustained
and the occupation of.the appellant as a mason and
consequently uunderr thef head of loss of future
Vearning capacity, the appellant is only entitled to
Ra;;;i4}2Q0gcfi*_ as ‘ against Rs.86,400–OO. The
‘v’.»difference_will be Rs.l,27,800-00. Towards loss of
*w,amenitiesg*a further sum of Rs.10,UO0~00 is awarded
‘”4and’ towards loss of income during the treatment
‘”a_period, in View of the operation undergone by the
hi”, uapoellant, Rs.18,000wOO is awarded. Thus the
appellant gets enhanced compensation by
}/
. i”
5 MFA 14973/O7
Rs.l,55,800–0O. That amount shail carry interest at
6% p.a.
The award is modified by allowing the’a§pea;ninnné
gart.