Partly allowed

Sri Harinath G v. Sri R. Subramanyam

Karnataka HC15 Jun 2021MFA/6703/2013

Case brief

AI extract

What is this about?

This motor accident compensation appeal allowed in part, enhancing the awarded sum from Rs.1,25,640 to Rs.3,23,320/-. The Court corrected errors in assessing pain and sufferings, medical expenses, loss of earnings due to a higher income estimate, disability percentage, and future expenses.

What did the court decide?

Appeal allowed in part; judgment and award modified to grant compensation of Rs.3,23,320/-. Respondent directed to deposit within 6 weeks.

Sri Harinath G Vs Sri R. Subramanyam — Motor Accident Claims | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF JUNE, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.6703/2013 (MV)

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BETWEEN:

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SRI HARINATH G., S/O LATE VENKATASWAMY, AGED ABOUT 46 YEARS, R/AT MAJEPALLI, GUNDUGALU POST, GANGA VARAM MANDAL, ANDRA PRADESH - 517 001.

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… APPELLANT

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(BY SRI SUGUNA R. REDDY, ADVOCATE)

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AND:

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1 . SRI R. SUBRAMANYAM S/O P. VENKATAMUNI, MAJOR IN AGE, R/AT BUNDAKUNTA VILLAGE, APPINAPALLI POST, BEDDA PANJANI MANDAL, ANDRA PRADESH-517 001.

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2 . THE BRANCH MANAGER

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ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., PRESTIGE CORNICE, 62/1, 2^ND FLOOR, RICHMOND ROAD, BENGALURU – 560 026.

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... RESPONDENTS

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(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R2; R1-SERVED)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 07.02.2013 PASSED IN MVC.NO.6980/2011 ON THE FILE OF THE 14^TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. COMING ON FOR ADMISSION THROUGH ‘VIDEO CONFERENCE’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though the matter is listed for admission today, with the consent of the learned counsel for both the parties, it is taken up for final disposal.

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This appeal is filed challenging the judgment and award dated 07.02.2013, passed in M.V.C.No.6980/2011 on the file of the MACT, Court of Small Causes, Bengaluru City, SCCH.10 (‘the Tribunal’ for short) questioning the quantum of compensation.

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The parties are referred to as per their original

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rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case is that the claimant met with an accident and sustained fracture. He also claims that due to the accidental injuries, he suffered permanent disability. In order to substantiate his contention, he examined himself as P.W.1, another witness as P.W.2 and the doctor as P.W.3. On the other hand, the respondent – Insurance Company has not led any evidence. The claimant got marked documents Exs.P1 to P8. The Tribunal, after assessing the evidence on record, allowed the claim petition by awarding compensation of Rs.1,25,640/-. Being aggrieved by the said award, the claimant is before this Court by filing the present appeal.

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Learned counsel appearing for the appellant would vehemently contend that the claimant has suffered fracture to lower end of right femur (Type-I compound supracondylar fracture) and also suffered fracture to the head of right humerus. He was an inpatient from 24.11.2010 to 09.01.2011 and he was hospitalized for a period of 46 days. He was subjected to two surgeries. The doctor has assessed the disability to the whole body at 47% and in his evidence, he has deposed that the

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injured requires two more surgeries for correction of non-union of the fracture, particularly, to the right humerus. However, the Tribunal failed to award the just and reasonable compensation and the compensation awarded by the Tribunal on all the heads is meagre. Hence, it requires interference of this Court.

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Per contra, learned counsel appearing for the

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respondent No.2 would vehemently contend that the doctor who has been examined as P.W.3 is not a treated doctor and he has not assessed the limb disability but directly assessed the whole body disability at 47%. Hence, the evidence of the doctor cannot be accepted and it does not require the interference of this Court.

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Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondentInsurance Company, the points that would arise for the consideration of this Court are:-

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(i) Whether the Tribunal has committed an error in not awarding the just and

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reasonable compensation and whether it requires interference of this Court ?

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(ii) What order?

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Point Nos.1 and 2:-

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Having heard the respective counsel and also on perusal of the records, particularly, Ex.P6 - the wound certificate, it discloses that the claimant has suffered two fractures and also subjected to surgery. He was under prolonged treatment for a period of 46 days and subjected to two surgeries. On perusal of the evidence of doctor P.W.3, admittedly, he is not a treated doctor and he suggested for two more surgeries. He also in his evidence says that right humerus is mal-united and requires a correction. Having perused the nature of injuries sustained by the claimant, particularly, the fracture of femur and right humerus, it is appropriate to award an amount of Rs.50,000/- on the head of ‘pain and sufferings’ as against Rs.20,000/- since the Tribunal failed to take note of the fact of hospitalization of the claimant for a period of 46 days.

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The Tribunal awarded an amount of Rs.3,000/- on

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the head of ‘medical expenses and other incidental charges’. No medical bills are produced by the claimant before the Tribunal. Taking into note of the fact that the injured was an inpatient for a period of 46 days, this Court is of the view that the Tribunal committed an error in awarding a meagre amount of Rs.3,000/towards incidental charges. The Tribunal lost sight of the total number of days for which the claimant had undergone treatment. Hence, it is appropriate to award an amount of Rs.30,000/- on the head of ‘medical expenses and other incidental charges’ as against Rs.3,000/-.

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The Tribunal assessed the compensation by taking

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the income of the claimant at Rs.4,000/- per month. The accident is of the year 2010 and hence, the Tribunal ought to have taken the income of the claimant at Rs.5,500/- per month. Taking into note of the claimant having suffered two fractures and subjected to surgery and so also in order to unite the said fractures, it would take minimum 4 months and rest, the compensation on the head of ‘loss of earning during the

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treatment’ requires to be enhanced. Hence, taking the income of the claimant at Rs.5,500/- for a period of 4 months, the compensation on the head of ‘loss of earning during the treatment’ is enhanced to Rs.22,000/-.

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The Tribunal also committed an error in assessing the compensation on the head of ‘loss of future earning capacity due to disability’ without taking into note of the fact that he had sustained two fractures, particularly, to the femur bone and right humerus and he was subjected to surgery and also the doctor has noticed mal-union of right humerus. When such being the case, the disability taken to the extent of 12% is on the lower side. When there is a mal-union in respect of the right humerus, it is appropriate to take the disability at 18% instead of 12%. Having taken the income of the claimant at Rs.5,500/- per month, the disability at 18% and by applying the relevant multiplier as 14, the compensation on the head of ‘loss of future earning capacity due to disability’ is calculated as under:-

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Rs.5,500x12x14x18% = Rs.1,66,320/-

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The Tribunal also awarded an amount of Rs.10,000/-

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on the head of ‘loss of amenities’. When the claimant has suffered the disability at 18% to the whole body and aged about 45 years, he has to lead rest of his life with the disability of 18%. Hence, it is appropriate to award an amount of Rs.30,000/- as against Rs.10,000/- on the head of ‘loss of amenities’.

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The Tribunal also awarded an amount of Rs.2,000/on the head of ‘future medical expenses’. The doctor P.W.3 deposed that the claimant requires two more surgeries and there are implants, which has to be removed and so also it requires one more surgery for correction of mal-union in respect of right humerus. It is also important to note that he took treatment in the Government Hospital and has not incurred any medical expenses. However, the Court cannot direct him to take future treatment again in a Government Hospital. Taking into consideration of all these factors, it is appropriate to award an amount of Rs.25,000/- on the head of ‘future medical expenses’.

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Accordingly, the claimant is entitled for an amount of Rs.3,23,320/- as compensation as against Rs.1,25,640/-.

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In view of the discussion made above, I pass the

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following:-

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ORDER

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(i) The appeal is allowed in part.

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(ii) The judgment and award passed by the Tribunal is modified by granting compensation of Rs.3,23,320/- with interest at the rate of 6% per annum from the date of petition till realization.

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(iii) Respondent-Insurance Company is directed to deposit the amount within 6 weeks’ from today.

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(iv) Registry to transmit the Trial Court Records forthwith.

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Sd/JUDGE

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PYR

Sri Harinath G v. Sri R. Subramanyam

Case brief

What is this about?

What did the court decide?

Sri Harinath G v. Sri R. Subramanyam

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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