Sri S Shankarappa Vs Sri Girish B

SRI GIRISH B S/O DR BASAVARAJ AGED ABOUT 30 YEARS OCC: DRIVER OF FORD CAR BRG. ITS REG NO.KA-36/M-1979 R/O SRI VEERA GANGADHARA HOSPITAL BEHIND CANARA BANK SINDHANOOR TOWN RAICHUR DISTRICT – 584 128

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DR BASAVARAJ S/O NOT KNOWN TO PETITIONER AGED ABOUT 58 YEARS

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OCC: MEDICAL PRACTITIONER AND OWNER OF FORD CAR BEARING ITS REG NO.KA-36/M-1979

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R/O SRI VEERA GANGADHARA HOSPITAL BEHIND CANARA BANK SINDHANOOR TOWN RAICHUR DISTRICT – 584 128

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., BUS STAND ROAD, OPP:TO BDO OFFICE, SINDHANOOR TOWN THROUGH ITS BRANCH OFFICE AT NO.273/13, 1^ST FLOOR , MALLIKARJUNA COMPLEX, PRAVASI MANDIRA ROAD DAVANAGERE TOWN – 577 002

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… RESPONDENTS

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(BY SRI. VIJAYA PHANEENDRA T B, ADVOCATE FOR SRI. A N KRISHNA SWAMY, ADVOCATE FOR R3; VIDE ORDER DATED 29.01.2025, NOTICE TO R1 & R2 IS DISPENSED WITH)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ALLOW THE APPEAL BY SUITABLY ENHANCING THE AMOUNT OF COMPENSATION BY GRANTING THE AMOUNT CLAIMED AND MODIFY THE JUDGMENT AND AWARD DATED 16.01.2014 IN MVC NO.158/2013 PASSED BY THE COURT OF III ADDL. SENIOR CIVIL JUDGE AND ADDITIONAL MACT-VII AT DAVANAGERE AND GRANT SUCH OTHER RELIEF/S WHICH THIS HON’BLE COURT DEEMS FIT, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE INCLUDING COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE T.M.NADAF

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ORAL JUDGMENT

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Though the matter is listed for admission with the

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consent of the learned counsel for the parties, the matter is taken up for final disposal.

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This appeal is by the appellant/claimant seeking enhancement of the compensation awarded dated 16.01.2014, in MVC.No.158/2013, on the file of 3^rd Additional Senior Civil Judge & MACT, Davangere.

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The parties shall be referred to as per their ranking before the Tribunal for easy reference.

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The date of accident, involvement of the

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vehicle, injuries sustained and the liability are not in dispute. The only question that remains for consideration is the quantum of compensation.

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Heard the learned counsel appearing for the parties, perused the order impugned and the material placed on record.

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Sri.Balappa Hirekurabar, learned counsel

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appearing on behalf of Sri.Rajashekar.K, for the appellant vehemently submits that the injured appellant had sustained the following injuries:

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“1) Lacerated wound over the right leg of size 5 x 3 cms. C-open fracture of right leg bone.

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2) Multiple abrasions over the right leg.”

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The claimant was inpatient in the Navodaya Hospital from 05.05.2012 till 07.06.2012 i.e., for a period of 33 days. The appellant underwent surgery on 06.05.2012, for closed reduction with interlocking nail, right tibia, with wound Detriment. On 25.07.2012, the appellant underwent rotation flap. As per the Doctor, who has been examined as PW-2, the appellant suffered disability at 25% to the right lower limb. The appellant was working as an agriculturist and the facture suffered being comminuted fracture of both bones, the appellant is not in a position to attend to agricultural work, which he was doing earlier. He further submits that the medical bills

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produced at Exhibit-P7 comes to Rs.59,800/-. The Tribunal has not considered the same and further submits that in view of the disability though the Doctor has stated that the disability suffered is 25% to the particular limb, however, the same has caused total loss of earning to the appellant, as he was an agriculturist earlier to the accident and hence submits that the Tribunal ought to have taken atleast 25% disability to the whole-body and awarded proper compensation under all heads. However, the Tribunal has awarded inadequate compensation under all heads and prays for enhancement of the compensation.

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Refuting the submissions of the learned counsel appearing for the appellant, Sri. Vijaya Phaneendra T.B., learned counsel appearing for Sri.A.N.Krishna Swamy, learned counsel appearing for the respondent submits that the Tribunal has properly considered the case of the appellant appropriately and awarded the compensation, which is just and proper, and does not call for any interference at the hands of this Court.

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Having heard the learned counsel for the

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parties, I have gone through the entire trial court record and also perused the impugned order. Having regard to the injuries sustained, treatment taken and the expenses incurred, the compensation awarded requires

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redetermination.

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The findings of the Doctor, PW-2 on examination of the appellant are stated in paragraph no.12 of the judgment reads as follows:

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“This is to certify that Mr. S. Shankarappa, aged about 43 years, had H/O RTA on 05.05.2012 at about 11.30 a.m. at near Itagi. Patient was hit by Car when traveling on two wheeler. Had injury to right lower limb. Patient had first aid at Itagi Govt. Hospital. Later admitted to Navodaya Hospital, Where diagnosed open type I fracture both bones middle 3rd right leg with multiple abrasions. For that patient underwent surgery on 06.05.2012 closed reduction with interlocking nail right tibia with wound Detriment. On 25.07.2012 patient underwent rotation flap by Dr. Nitin plastic surgeon, patient had regular Follow up

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Now patient presented for disability assessment

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C/o pain in the right leg and not able to stand for long time.

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Difficulty in squatting

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On examination Old operated scar present over the knee joint.

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Old flap coverage over the medial aspect of right leg

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Movements: Knee extension: terminal 15 restricted

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Ankle darsi flexion 20 restricted

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Wasting of thigh muscles Present

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Swelling of right leg present

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Power. Knee extension grade 4

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Ankle dorsi flexion Grade 4

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X-ray right leg with knee and ankle AP/Lat view show old healed fracture with anterior gap in the cortex present.

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Patient produced old Xerox copy of discharge card from Navodaya Hospital

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Old X-rays

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After examining both clinically and radiological I am of the opinion of disability of about 25% of right lower limb Twenty five percent)."

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This Court feels that the percentage of disability

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taken by the tribunal at 15% is on the lower side, same requires proper consideration. Having regard to the

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disability suffered and as assessed by the treated Doctor, PW-2, if the disability is taken at 20% to the whole body,

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it would meet the ends of justice. Accordingly, 20% disability is taken to the whole-body. Though the learned counsel for the appellant submits that the appellant was an agriculturist and also doing milk vending, he has not produced any document in support of the same. Taking note of the year of the accident as 2012, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.7,000/- is fixed as income

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per month as against Rs.4,500/- taken by the Tribunal. The appropriate multiplier applicable is 14. In view of the income stated supra and on redetermination ‘loss of

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future income ’ works out to Rs.2,35,200/(Rs.7,000/- x 12 x 14 x 20%) . Accordingly, the same is awarded.

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The injuries suffered by the claimant are grievous in nature and hence a sum of Rs.50,000/- is

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awarded under the head ‘pain and sufferings’ , which is just and proper.

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Towards ‘Medical Expenses’, as per ExhibitP7 the appellant- claimant has incurred a sum of Rs 59,800/-, and the same is rounded off to Rs 60,000/-, and the awarded under the said head.

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Admittedly, the appellant-claimant was an inpatient for 33 days, as per the evidence before the Tribunal, which is not seriously disputed by the respondent. Therefore, a sum of Rs.25,000/- is awarded towards ‘ attendant charges, extra-nourishment, food and conveyance expenses ’.

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So far as ‘Loss Of Amenities’ is concerned, a sum of Rs.20,000/- is awarded, instead of Rs.10,000/awarded by the Tribunal.

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In the special facts and circumstances of the case, since he was inpatient for 33 days in view of the accidental injuries, the claimant would have taken rest

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atleast for a period of 4 months. Therefore, taking the income at Rs.7,000/- per month and calculating the laid

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up period for four months, the claimant is entitled for a sum of Rs.28,000/- (Rs.7,000 x 4 months) , under the head ‘Loss Of Earning During Laid Up Period’.

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In summary, the total compensation redetermined by this Court under various heads is as follows:

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1.	Loss of future income	:	Rs.	2,35,200/-
2.	Pain and Sufferings	:	Rs.	50,000/-
3.	Medical Expenses	:	Rs.	60,000/-
4.	Attendant charges, extra- nourishment, food and conveyance expenses	:	Rs.	25,000/-
5.	Loss of Amenities	:	Rs.	20,000/-
6.	Loss of income during laid up period	:	Rs.	28,000/-
	TOTAL	:	Rs.	4,18,200/-

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The total compensation re-determined by this

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Court works out to Rs.4,18,200/- as against Rs.2,57,000/awarded by the Tribunal. Hence, the appellant – claimant

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is entitled for an additional compensation of

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Rs.1,61,200/- (Rs.4,18,200 – Rs.2,57,000) along

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with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. Respondent No.3 - Insurance Company is directed to deposit the amount of enhanced compensation within Six Weeks from the date of receipt of the certified copy of this judgment.

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