H C Shivakumaraswamy Vs Managing Director

H. C. SHIVAKUMARASWAMY S/O LATE MALLEDEVARU, AGED 46 YEARS, R/O NO.370, M.S.R. LAYOUT, PARANGIPALYA, BANGALORE NOW RESIDING AT POST OFFICE ROAD, S. R PATNA TOWN, MANDYA DISTRICT – 571 428. …APPELLANT

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(BY SRI. PRAMOD R, ADVOCATE)

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AND:

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MANAGING DIRECTOR

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Digitally Signed by REKHA R Location : High Court of Karnataka

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M/S FLAIR GARMENTS PVT LIMITED, SARVEY NO.65-71, 8183, THANDAYA, INDUSTRIAL AREA, THANDAVAPURAM, NANJANAGUDU TALUK, MYSORE DISTRICT – 571 408

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THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO LTD, DO-2, NEAR FIRE BRIGADE, MUSLIM HOSPITAL COMPLEX, SARASWATHIPURAM, MYSORE – 571 408 POLICY ISSUING OFFICE, BRANCH OFFICE, A. A. COMPLEX,

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2 -

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NC: 2025:KHC:40194 MFA No. 8284 of 2014

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HC-KAR

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1^ST FLOOR, NO.159, KUMARAN ROAD, THIRUPUR, TAMIL NADU – 641 601

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…RESPONDENTS

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(BY SRI. R GOVINDARAJAN, ADVOCATE FOR R2; R1 SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO ALLOW THE APPEAL AND ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD DATED 28/10/2013, PASSED IN MVC NO.153/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MACT, SRIRANGAPATNA AND ETC

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THIS APPEAL COMING ON FOR HEARING 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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This appeal is by the appellant/claimant seeking enhancement of compensation, arising out of the judgment and award passed by the Tribunal vide judgment dated 28.10.2013, in MVC No.153/2012 passed by the Principal Senior Civil Judge And MACT, Srirangapatna, (‘Tribunal’ for short).

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HC-KAR

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The date of accident, involvement of vehicle,

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injuries suffered and the liability to pay the compensation are not in dispute.

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Heard Sri.Pramod.R, learned counsel appearing for the appellant and Sri.R.Govindarajan, learned counsel appearing for respondent No.2 – insurance company. Respondent No.1 though served remained unrepresented.

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Sri.R.Pramod with all vehemence submits that

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the appellant has sustained the following injuries:

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(i) comminuted fracture of bones of right leg;

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(ii) comminuted fracture of distal 1/4^th shaft femur; (iii) fracture of knee joint;

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(iv) fracture of fingers;

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(v) fracture injury of right hand and fingers;

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(vi) fracture of right leg knee bones at 3 places.

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As per the Doctor who has been examined as

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PW-2, the appellant has sustained 90% disability to the whole-body. The doctor i.e., PW-2 has examined the appellant/injured, found that there is pain in right leg and

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HC-KAR

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he cannot walk/climb and his right leg is shortened by 2

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inches and he cannot walk without walker and there is deformity of right knee. There is only 10 degree movement in leg out of 160 degree, remaining 150 degrees is disabled. In all, the appellant is suffering from disability at 90% disability to the right lower limb. The appellant was working as a Cart-puller and in view of the injuries suffered to the main bone i.e., femur he is not able to do the earlier avocation. The Tribunal has taken the income at Rs.4,500/- i.e., Rs.150 per day. Admittedly, the year of accident is 2011 and as per the chart prepared by Karnataka State Legal Services Authority (for short

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‘KSLSA’) for the year 2011, the income is Rs.6,500/- p.m. The Tribunal has failed to consider the same. So far as the disability is concerned, though the Tribunal has taken at 45% as stated by the Doctor, however the Tribunal has failed to add future prospects to the existing income due to the injuries suffered to the whole-body. So far as the compensation awarded under the other heads, when

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HC-KAR

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compared to the injuries suffered, are meager except ‘medical expenses’. The same requires reconsideration and redetermination. Accordingly, sought to allow the appeal by enhancing the compensation.

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Refuting the submission of the learned counsel

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appearing for the appellant, Sri.R.Govindarajan with all vehemence submits that in the absence of any evidence the Tribunal has taken the income at Rs.4,500/- per month for the year 2011, which is just and proper. Though the Doctor has stated 90% disability to the particular limb, the Tribunal instead of taking 1/3^rd has taken 45% disability which is 50% of the disability assessed by the Doctor. In view of the same, the income awarded under the head loss of future income does not call for any interference. As the Tribunal has taken 50% of the disability assessed by the Doctor, which is more than the permissible limit, normally have been taken in case of a particular limb, the compensation awarded by the Tribunal

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HC-KAR

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is just and proper and does not call for interference at the

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hands of this Court and hence sought to dismiss the appeal.

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7. Having heard the learned counsel appearing for

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the parties, perused the appeal papers. The only point that

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would arise for consideration of this Court is as under:

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Whether the appellant has made out any case for enhancement of compensation if so, to what extent?

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The answer of this Court for the above point for consideration is ‘partly in affirmative’ for the following reasons:

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It is not in dispute that the appellant has suffered multiple fracture injuries including fracture to a major bone i.e., femur bone and other three fractures. The Doctor who has been examined as PW-2 has stated that the appellant is not able to do his earlier avocation in view of the injuries suffered in the accident. He has further

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HC-KAR

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stated that there is a shortening of leg by 2 inches and he has to walk with the help of walker and there is restriction in the movement of knee as well as ankle, and he cannot squat and walk. Considering the same, the Tribunal has taken the disability at 45%, however failed to add future prospects. Admittedly, the appellant was aged 46 years as on the date of the accident and he is entitled for 25% future prospects to be added to the existing income. As per the chart prepared by the KSLSA stated supra, the income fixed for the year 2011 is Rs.6,500/-. In view of taking the income at higher rate, to that of the Tribunal, as well as adding future prospects and considering the length of treatment and inpatient period of 128 days, and the surgeries undergone for fixation of implants, this Court is of the opinion that the compensation awarded under each head except ‘medical expenses’ requires reconsideration. Hence, the appellant has made out a case for reconsideration of the compensation awarded by the

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HC-KAR

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Tribunal. On redetermination and reconsideration the

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appellant is entitled for the following compensation:

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Sl. No.	Heads	Compensation awarded by the Tribunal	By this Court
1.	Pain & Suffering	45,000/-	75,000/-
2.	Medical Bills	56,000/-	56,000/-
3.	Attendant Charges, Food & Nourishment, Conveyance (Rs.1,000 x 128)	75,000/-	1,28,000/-
4.	Loss of Earning during laid up period	45,000/-	45,000/-
5.	Loss of Future Income	3,15,900/-	5,07,000/-
	(6,500 + 25% x 12 x 13 x 40%)
6.	Loss of Amenities	20,000/-	50,000/-
	TOTAL	5,56,900/-	8,61,000/-

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The total compensation re-determined by this Court would come to Rs.8,61,000/as against Rs.5,56,900/- awarded by the Tribunal. Hence, the appellant – claimant is entitled for an additional compensation of Rs.3,04,100/- along with interest at 6% per annum from the date of filing of the petition till

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HC-KAR

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realization, in addition to what has been awarded by the Tribunal. Respondent No.2 - Insurance Company is directed to deposit the amount of total compensation within six weeks from the date of receipt of certified copy of this judgment.

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For the foregoing reasons, this Court proceeds to pass the 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 vide judgment dated 28.10.2013, in MVC No.153/2012 is modified;

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iii) The appellant – claimant is entitled for an additional compensation of Rs.3,04,100/(Rs.8,61,000 – Rs.5,56,900) along with interest at 6% per annum from the date of filing of the petition till realization.

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