Partly allowed

Devadas Vasu Gunagi v. the Divisional Controller

Karnataka HC17 Aug 2017MFA/22043/2010

Case brief

AI extract

What is this about?

In an appeal against a partially allowed claim petition for motor accident compensation, the high court enhanced the award. The court rectified omissions in medical bills, accepted higher notional income, and adjusted compensation for disability and injury severity, increasing the total from Rs. 84,600 to Rs. 1,46,845. The appeal was partly allowed. The judgment concludes with an order to pass the

What did the court decide?

Compensation enhanced by Rs. 62,245. Total award raised to Rs. 1,46,845.

Devadas Vasu Gunagi Vs the Divisional Controller — Motor Accident Claims | Karnataka HC (2017)

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M.F.A.No.22043/2010 (MV)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF AUGUST, 2017

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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MISCELLANEOUS FIRST APPEAL NO.22043/2010 (MV)

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BETWEEN:

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SRI.DEVADAS VASU GUNAGI AGED ABOUT 49 YEARS OCC:AGRICULTURIST, AT PRESENT NIL R/O:MALADEVI NAGAR,GUNAGIWADA KARWAR, DIST:UTTARKANNADA

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... APPELLANT

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(BY SRI.T M NADAF, ADVOCATE)

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AND:

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THE DIVISIONAL CONTROLLER N.W.K.R.T.C., DIVISIONAL OFFICE SIRSI DIVISION, SIRSI.

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... RESPONDENT

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(BY SMT. PRAFULLA NAIK, ADVOCATE)

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THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD DATED:27-01-2010 PASSED IN MVC.NO.79/2009 ON THE FILE ON THE MEMBER, - ADDL. MACT, KAWAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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M.F.A.No.22043/2010 (MV)

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JUDGMENT

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The present appellant was the claimant before the I

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Addl. Motor Accidents Claims Tribunal, Karwar (henceforth referred to as ‘the Tribunal’, for short), whose claim petition for compensation under Section 166 of the Motor Vehicles Act was partly allowed by the Tribunal below in the impugned judgment and award. Claiming enhancement of compensation awarded by the Tribunal below, the appellant has preferred this appeal.

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In his memorandum of appeal, the appellant has taken a contention that the income taken by the Tribunal below at `2,000/- per month was meager and also far below the notional income. It is also contended that the compensation awarded under different heads including the compensation towards pain and agony and loss of future income are all meager. With this, he has prayed for enhancement of compensation.

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M.F.A.No.22043/2010 (MV)

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The learned counsel for the appellant, apart from

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reiterating the contention taken up in his memorandum of appeal, even in his argument also drew the attention of this Court to two documents which are part of Ex.P4 and submitted that a total of those two medical bills is more than 69,000/-, whereas the Tribunal below has awarded only a sum of 45,000/- under the head of ‘medial expenses’, which is not correct. He also submitted that, when the notional income is taken for the assessment of the quantum of compensation towards ‘loss of future

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income’, the same would be of some higher amount.

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On the other hand, learned counsel for the respondent – Corporation in her argument submitted that the injury certificate marked at Ex.P3 undisputedly is issued by the very same hospital, which is said to have issued the discharge summary at Ex.P4. However, the injuries that are shown in Ex.P4 are not reflected in Ex.P3, which raises a suspicion that the claimant must

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M.F.A.No.22043/2010 (MV)

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not have suffered fracture injuries as alleged. Further, stating that the quantum of compensation awarded under various heads are all reasonable and does not warrant any interference at the hands of this Court, she prayed to reject the appeal.

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The present appeal being the claimant’s appeal and the respondent having not preferred either crossobjection or a counter appeal, the question of occurrence of accident on the date, time and place alleged by the claimant and also the alleged fault on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondent to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the quantum of compensation awarded by the Tribunal below.

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M.F.A.No.22043/2010 (MV)

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The Tribunal below has awarded a compensation

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under the following heads and with the sums shown

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against them:

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Amount( ` )

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Towards Pain and suffering	20,000.00
Towards Medical expenses	45,000.00
Towards Conveyance	1,000.00
Towards future loss of earning	15,600.00
Towards loss of income during	2,000.00
laid up period
Towards attendant charges	1,000.00
Total	84,600.00

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The claimant who got himself examined as PW1 in

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the Tribunal below has stated that, in the accident he has suffered multiple grievous injuries including fracture to mid shaft of right tibia. Ex.P3 is the Injury Certificate which does not speak about the alleged fracture of right tibia. Apart from mentioning the history of the case as Road Traffic Accident occurred on 07.12.2008, it refers to two contusions in the form of lacerated wounds, one on the occipital region and another on the left medial aspect

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M.F.A.No.22043/2010 (MV)

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above medial malleous. However, the very same hospital, which has issued the said injury certificate, also has issued a discharge summary as could be seen in Ex.P4. In the said discharge summary, it has mentioned about the compound comminuted fracture of right tibia. In the case history, it has mentioned the said fracture is said to be due to trauma occurred on the date 07.12.2008. No doubt the injury certificate at Ex.P3 issued by the very same hospital though is silent about the alleged comminuted fracture said to have sustained by the claimant, but it refers to two lacerated wounds, wherein one particular contused lacerated wound is on the left medial aspect, which corresponds to the place of comminuted fracture of right tibia. The very same hospital, which has issued Ex.P3 since has issued Ex.P4 also, wherein it has recorded the history as injury due to trauma occurred on 07.12.2008, merely because in the injury certificate only those injuries which are by clinical prima facie examination would be recorded generally, it

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M.F.A.No.22043/2010 (MV)

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cannot be said that Ex.P3 does not have any relation with Ex.P4. It is also for the reason that the evidence of PW1 to

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the effect that he sustained fracture injury to right tibia and that he took treatment in Appolo Victor Hospitals, which has issued Exs.P3 and P4 along with other few documents, also has not been specifically denied or disputed or contravened from the respondent’s side in the cross-examination of the said witness. As such, the petition averment and the evidence of PW1, when analysed

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in the light of Exs.P3, P4 and related exhibits, it can be concluded that in the Road Traffic Accident occurred on 07.12.2008, the claimant has suffered comminuted fracture of right tibia. As such, the argument of the learned counsel for the respondent-Corporation on the said point suspecting the authenticity of Ex.P4 cannot be accepted.

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After noticing that the claimant had sustained comminuted mid shaft fracture of right tibia and also

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M.F.A.No.22043/2010 (MV)

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contusive lacerated wound of occipital region and he was surgically operated, which according to the claimant was twice, the Tribunal below has awarded a compensation of 20,000/- towards ‘pain and suffering’. In the light of the above analysis and considering the nature of injuries and the circumstances of the case, I am of the view that the said quantum is marginally lesser than the reasonable amount, as such, it requires enhancement by another sum of ** 10,000/-.**

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Towards ‘medical expenses’, the Tribunal below has awarded a compensation of a sum of 45,000/-. Though it is stated that the bills produced at Ex.P5 amounts to 92,000/- and odd, however, since there were some duplication, it has decided to award 45,000/- towards medical expenses. But it is clear that the Tribunal below has lost sight of two bills issued by the treating hospital i.e., Appolo Victor Hospital, which are at last two pages of Ex.P4. The first bill dated 11.12.2008 is for a sum of 34,294.25 and the second bill dated 26.01.2009 is for a

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M.F.A.No.22043/2010 (MV)

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sum of 35,151/-. The respondent-Corporation has not disputed the genuinety and authenticity of these two bills in the cross-examination of PW1. As such, the omission of those two bills in the computation by the Tribunal below is to be rectified now. However, at the same time, the observation of the Tribunal below regarding duplication of the bills also cannot be lost sight of. As such, I am of the view that the total medical expenses eligible to be awarded as compensation shall be the total sum of these two bills issued at Ex.P4, which comes to a total of 69,445.25. After deduction of 45,000/- awarded by the Tribunal below under the said head, the balance amount of ** 24,445.25** would be the enhancement, which in the present appeal deserves to be made under the head of ‘medical expenses’.

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Towards ‘conveyance and attendant charges’, the Tribunal below has awarded a compensation at the rate of `1,000/- each. Considering the fact that undisputedly the claimant was said to be a resident of U.K. District, but the

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M.F.A.No.22043/2010 (MV)

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treating hospital was at Goa and also of the fact that the claimant was said to have been treated as an inpatient for short duration on two occasions, I am of the view that the compensation under the head of ‘conveyance and attendant charges’ put together deserves an enhancement by a sum of ` 8,000/-.

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The claimant has stated that he was an agriculturist at the time of accident and was earning a sum of 5,000/per month. Considering the fact that his statement was a mere statement and there were no corroborative evidence or documents, the Tribunal below has taken his monthly income at 2,000/- per month. However, when considered the notional income that are being taken under similar situations by the Co-ordinate Benches of this Court, which is at 4,250/- per month, I am of the view that the monthly income of the claimant in the instant case also to be taken at 4,250/- per month. If the said quantum is taken as his monthly income, then the compensation awarded towards ‘loss of income during laid up period’ of

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one month deserves an enhancement by a sum of

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` 2,250/-.

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It is also the case of the claimant that, due to the injuries suffered by him in the accident, he has become disabled to pursue his avocation as an agriculturist. It is his case that he is suffering with permanent partial disability. In this connection, he has also examined one Dr.Santosh Kumar Rao as PW2, which doctor in his deposition before the Tribunal below has stated that his examination of the injured has revealed that the injured was suffering with a disability of 15% over right lower limb and it comes to 7% of disability compared to his whole body. However, the Tribunal below after assessing the evidence of the doctor and the disability certificate produced in this regard by the claimant at Ex.P12, has arrived at a conclusion that the percentage of permanent partial disability would be 5% to his whole body. I do not want to interfere in the said reasoning and finding of the Tribunal below. With the said inputs of the income and

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M.F.A.No.22043/2010 (MV)

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the percentage of disability, the undisputed age of the injured which was 48 years as shown in the medical record, the proper multiplier applicable would be 13. As such, his entitlement towards compensation for ‘loss of future income’ would be at 4,250 x 12 x 13 x 5/100 = 33,150/-. After deduction of a sum of 15,600/awarded by the Tribunal below under the said head, the appellant/claimant is entitled for an enhancement of a sum of ** 17,550/-.**

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Barring this, I do not find any other ground to add any other heads of compensation or to enhance the compensation any further.

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Accordingly, I proceed to pass the following

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order:

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ORDER

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The appeal is allowed in part.

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M.F.A.No.22043/2010 (MV)

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The judgment and award passed by the I Addl. Motor Accidents Claims Tribunal, Karwar in MVC No.79/2009 dated 27.01.2010 is modified to the extent that the compensation awarded at 84,600/- is enhanced by a sum of 62,245.25 rounded off to 62,245/-,** thus making the total sum at ** 1,46,845/- (Rupees One Lakh Forty

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Six Thousand Eight Hundred Forty Five Only).

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The rest of the terms of the award with respect to awarding interest, its rate, apportionment, if any, and the disbursement/deposit of the amount shall remain unaltered.

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Draw modified award accordingly.

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Sd/-

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JUDGE

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gab

Devadas Vasu Gunagi v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

Devadas Vasu Gunagi v. the Divisional Controller

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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Case details

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