Sri Guthalegowda S/O. Late Dyavegowda Vs. Sri. Avinash S/C Lakshmanna and ors - Court Judgment

SooperKanoon Citationsooperkanoon.com/907673
CourtKarnataka High Court
Decided OnNov-08-2010
Case NumberMiscellaneous First Appeal No. 3535 of 2008 (MV)
JudgeB.SREENIVASE GOWDA J.
AppellantSri Guthalegowda S/O. Late Dyavegowda
RespondentSri. Avinash S/C Lakshmanna and ors
Appellant AdvocateSri. S Raju & Associates, Advs
Respondent AdvocateH R Renuka, Adv
Excerpt:
[b.sreenivase gowda j.] this mfa is filed u/s 173(1) of mv act. against the judgment and award dated 04.07.2007 passed in mvc no. 163/2006 on the file of member. additional mact & principal civil judge (sr.dn.), rajianagaram, partly allowing the claim petition for compensation and seeking enhancement for compensation.1. this appeal is by 'he claimant, tor enhancement of compensation awarded by the tribunal.2. heard. the appeal is admitted and with the consent of learned counsel appearing for the parties, it is taken up for final disposal.3. for the sake of convenience parties are referred to as they are referred to in the claim petition before the tribunal.4. brief facts of the case are:that on 4-12-06, when the claimant was going on a motor cycle bearing registration no.ka-01-tr-719 near shivanahalli vaddaradoddi road, the motor cycle bearing registration no. ka-42-e-0086 came in a rash and negligent manner and dashed against his motor cycle. as a result, the claimant fell down and sustained injuries. hence, he filed a claim petition before the mact. ramanagaram. seeking compensation of 6.00.000/-. the tribunal by impugned judgment and award has awarded compensation of 1,37.000/-with interest at 6% pa. aggrieved by the quantum of compensation awarded by the tribunal the claimant is in appeal seeking enhancement of compensation.5. as there is no dispute regarding occurrence of accident, negligence and liability of the insurer of the offending vehicle, the only point that remains for my consideration in the appeal is: whether the quantum of compensation awarded by the tribunal is just and proper or does it call for enhancement?6. after hearing the learned counsel for the parties and perusing the award of the tribunal. i am of the view that the compensation awarded by the tribunal is not just and proper, it is on the lower side and therefore it is deserved to be enhanced.7. the claimant has sustained the following injuries:1) clinical fracture of mid tarsal bone with bleeding2) clinical fracture of proximal phalanx of index finger3) clinical fracture of proximal phalanx of right middle finger injuries sustained by him are evident from the wound certificate - ex.p.3, discharge summaries -ex.p.4 and p.5, opd card - ex.p.6, case sheet -ex.p. 12, x-ray reports - ex.p. 13 and supported by oral evidence of the claimant and doctor examined as p.ws. 1 and 2 respectively. p.w.2, an ortho surgeon has stated that he examined the claimant on 9-6-07 and noticed the following problems:i) deformity of right index finger with ventral angulations.ii) grip strength reduced and hooking is painful.iii) right foot dorsum has post-traumatic irregular scar.iv) mal-united proximal phalanx of right index finger.v) mid tarsal bone fracture of right foot healed with restriction of joint movements to mild degree.he has stated that claimant has suffered disability of 49% to right upper limb and 24.5% to whole body.8. considering the nature of injuries, 50,000/- awarded by the tribunal towards pain and suffering is just and proper and there is no scope for enhancement under this head.9. claimant has produced medical bills k for 21,061/-. he was treated as inpatient for a period of 51 days. considering the same, 35,000/- awarded by the tribunal towards medical and incidental expenses is just and proper and therefore, it does not call for enhancement.10. claimant claims to have been earning 15.000/- per month by doing keb contract work and agriculture. he has produced contractor's license at ex.p. 10. tribunal considering the same, has assessed his income at 5,000/- per month and considering the period of treatment as three months, has awarded 15,000/- towards loss of income during laid up period. the same is just and proper and there is no scope for enhancement under this head.11. with regard to awarding of compensation under the head toss of future income', learned counsel appearing lor the claimant submits, claimant after sustaining injuries in the accident is not doing any business and there is total loss in his future earning and he prays for awarding compensation towards loss of future income. whereas, learned counsel appearing for the insurance submits, claimant has sustained 4% fracture of middle finger which will not affect his future earning and therefore, the tribunal considering the same has rightly declined to award compensation towards loss of future income.12. the claimant claims to have been earning rs. 15,000/- per month by doing contract in keb. except producing license at ex.p. 10 he has not produced any other document regarding income that he was earning prior to the accident and reduction in his earning after the accident. even natures of injuries do not suggest their effect over his future earning from contract business. nevertheless, he has to bear with the disability stated by the doctor at 49% to right upper limb and 24.5% to whole body, in addition to certain amount, of discomfort and unhappiness which he has to undergo for the rest of his life. considering the same, 25.000/- awarded by the tribunal towards loss of amenities is on the lower side and it is deserved to be enhanced by another 15,000/- and i f award 40,000/- under this head.13. considering the evidence of the doctor that he has to undergo plastic surgery and is required to spend some amount, tribunal has awarded 12.000/-towards future medical expenses. the same is just and proper and there is no scope for enhancement under this head.14. accordingly the appeal is allowed in part and the judgment and award of the tribunal is modified to the extent stated herein above. the claimant is entitled for an additional compensation off. 15.000/- with interest at 6% p.a. on the additional compensation from the date of claim petition till the date of realization, excluding interest for the delayed period of 132 days in filing the appeal.15. the insurance co. is directed to deposit, the enhanced compensation amount with interest excluding interest for the delayed period within two months from the date of receipt of a copy of this judgment and the same is ordered to be released in favour of the claimant.no order as to costs.
Judgment:

1. This appeal is by 'he claimant, tor enhancement of compensation awarded by the Tribunal.

2. Heard. The appeal is admitted and with the consent of learned Counsel appearing for the parties, it is taken up for final disposal.

3. For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.

4. Brief facts of the case are:

That on 4-12-06, when the claimant was going on a motor cycle bearing registration No.KA-01-TR-719 near Shivanahalli Vaddaradoddi road, the motor cycle bearing registration No. KA-42-E-0086 came in a rash and negligent manner and dashed against his motor cycle. As a result, the claimant fell down and sustained injuries. Hence, he filed a claim petition before the MACT. Ramanagaram. seeking compensation of 6.00.000/-. The Tribunal by impugned judgment and award has awarded compensation of 1,37.000/-with interest at 6% pa. Aggrieved by the quantum of compensation awarded by the Tribunal the claimant is in appeal seeking enhancement of compensation.

5. As there is no dispute regarding occurrence of accident, negligence and liability of the insurer of the offending vehicle, the only point that remains for my consideration in the appeal is: Whether the quantum of compensation awarded by the Tribunal is just and proper or does it call for enhancement?

6. After hearing the learned Counsel for the parties and perusing the award of the Tribunal. I am of the view that the compensation awarded by the Tribunal is not just and proper, it is on the lower side and therefore it is deserved to be enhanced.

7. The claimant has sustained the following injuries:

1) Clinical fracture of mid tarsal bone with bleeding

2) Clinical fracture of proximal phalanx of index finger

3) Clinical fracture of proximal phalanx of right middle finger Injuries sustained by him are evident from the wound certificate - Ex.P.3, discharge summaries -Ex.P.4 and P.5, OPD card - Ex.P.6, case sheet -Ex.P. 12, x-ray reports - Ex.P. 13 and supported by oral evidence of the claimant and doctor examined as P.Ws. 1 and 2 respectively. P.W.2, an Ortho Surgeon has stated that he examined the claimant on 9-6-07 and noticed the following problems:

i) Deformity of right index finger with ventral angulations.

ii) Grip strength reduced and hooking is painful.

iii) Right foot dorsum has post-traumatic irregular scar.

iv) Mal-united proximal phalanx of right index finger.

v) Mid tarsal bone fracture of right foot healed with restriction of joint movements to mild degree.

He has stated that claimant has suffered disability of 49% to right upper limb and 24.5% to whole body.

8. considering the nature of injuries, 50,000/- awarded by the Tribunal towards pain and suffering is just and proper and there is no scope for enhancement under this head.

9. Claimant has produced medical bills K for 21,061/-. He was treated as inpatient for a period of 51 days. Considering the same, 35,000/- awarded by the Tribunal towards medical and incidental expenses is just and proper and therefore, it does not call for enhancement.

10. Claimant claims to have been earning 15.000/- per month by doing KEB contract work and agriculture. He has produced contractor's license at Ex.P. 10. Tribunal considering the same, has assessed his income at 5,000/- per month and considering the period of treatment as three months, has awarded 15,000/- towards loss of income during laid up period. The same is just and proper and there is no scope for enhancement under this head.

11. With regard to awarding of compensation under the head Toss of future income', learned Counsel appearing lor the claimant submits, claimant after sustaining injuries in the accident is not doing any business and there is total loss in his future earning and he prays for awarding compensation towards loss of future income. Whereas, learned Counsel appearing for the Insurance submits, claimant has sustained 4% fracture of middle finger which will not affect his future earning and therefore, the Tribunal considering the same has rightly declined to award compensation towards loss of future income.

12. The claimant claims to have been earning Rs. 15,000/- per month by doing contract in KEB. Except producing license at Ex.P. 10 he has not produced any other document regarding income that he was earning prior to the accident and reduction in his earning after the accident. Even natures of injuries do not suggest their effect over his future earning from contract business. Nevertheless, he has to bear with the disability stated by the doctor at 49% to right upper limb and 24.5% to whole body, in addition to certain amount, of discomfort and unhappiness which he has to undergo for the rest of his life. Considering the same, 25.000/- awarded by the Tribunal towards loss of amenities is on the lower side and it is deserved to be enhanced by another 15,000/- and I f award 40,000/- under this head.

13. Considering the evidence of the doctor that he has to undergo plastic surgery and is required to spend some amount, Tribunal has awarded 12.000/-towards future medical expenses. The same is just and proper and there is no scope for enhancement under this head.

14. Accordingly the appeal is allowed in part and the Judgment and award of the Tribunal is modified to the extent stated herein above. The claimant is entitled for an additional compensation off. 15.000/- with interest at 6% p.a. on the additional compensation from the date of claim petition till the date of realization, excluding interest for the delayed period of 132 days in filing the appeal.

15. The Insurance Co. is directed to deposit, the enhanced compensation amount with interest excluding interest for the delayed period within two months from the date of receipt of a copy of this judgment and the same is ordered to be released in favour of the claimant.

No order as to costs.