Smt Nagarathna Raju Vs the Proprietor

SMT NAGARATHNA RAJU W/O RAJU T AGED ABOUT 42 YEARS, OCC: MAID & HELPER AT M/S. GOZYPPY TRIPS R/AT NO.99, NEAR ANJANEYA TEMPLE STREET 2^ND CROSS, 2^ND MAIN, B. NARAYANAPURA BENGALURU-560016.

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…APPELLANT

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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(BY SRI. SURESH M. LATUR, ADVOCATE)

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AND:

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THE PROPRIETOR M/S. INDUSTRIAL CRANCE SERVICE MR. MOHAMMED ISMAIL BAIG S/O ABDUL RAWOOF BAIG NO.87/A, 2ND FLOOR, OFF: ITI ANCILLARY G.C.PALYA, MAHADEVAPURA BENGALURU-560048.

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THE MANAGER

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UNITED INDIA INSURANCE CO. LTD., 5TH AND 6TH FLOOR, KRISHI BHAVAN,

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NC: 2026:KHC:15285 MFA No. 275 of 2018

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HC-KAR

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NRUPATUNGA ROAD, HUDSON CIRCLE BENGALURU-560 001.

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…RESPONDENTS

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(BY SRI. JWALA KUMAR, ADVOCATE FOR R2; VIDE ORDER DATED 06.12.2021, NOTICE TO R1 DISPENSED WITH)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 06.10.2017 PASSED IN MVC NO.1438/2016 ON THE FILE OF THE XXI A.C.M.M. & XXIII A.S.C.J, BENGALURU. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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This appeal is filed by the injured/appellant seeking enhancement of compensation being aggrieved by the judgment and award dated 06.10.2017 passed in MVC No.1438/2016 by the Court of XXI Addl. Chief Metropolitan Magistrate & XXIII Addl. Small Causes Judge, Bengaluru, (for short, ‘Tribunal’).

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HC-KAR

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Though this appeal is listed for orders, with the consent of learned counsel for the parties, it is taken up for final disposal.

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Sri.Suresh.M.Latur, learned counsel for the appellant submits that the Tribunal has committed a grave error in assessing the income of the injured at Rs.8,000/- per month by ignoring the oral evidence of P.W.3 and vouchers produced. It is submitted that P.W.2 has assessed disability of 27% of whole body and there is no reason to disbelieve the same and hence, seeks to consider the said disability and assess the compensation. It is further submitted that the award of compensation on all other heads is required to be enhanced appropriately. Lastly, he submits that the claimant is also entitled to compensation on the head of loss of future prospects of the injured at the rate of 40% of the assessed compensation. Hence, he seeks to allow the appeal.

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Per contra, Sri.Jwala Kumar learned counsel for respondent No.2 supports the impugned judgment and award by the Tribunal and submits that the Tribunal has recorded a clear finding with regard to the rejection of the proof of income as the appellant has failed to produce any corroborating

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HC-KAR

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evidence to support the evidence of P.W.3, hence income is rightly assessed. It is submitted that the disability assessed by the Doctor at 27% is on higher side and without any scientific reasoning. The Tribunal considering the same has rightly assessed the disability at 16% on appreciation of proper evidence. Hence, the Tribunal considered the available evidence and awarded a just and fair compensation to the injured claimant, which does not call for any enhancement. Hence, he seeks to dismiss the appeal.

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I have heard the arguments of learned counsel for the appellant, learned counsel for the respondent No.2 and meticulously perused the material available on record including the Tribunal records.

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The only point that would arise for consideration in

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this appeal is :

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" Whether the judgment and award passed by the Tribunal calls for any interference?"

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The above point is answered in the affirmative for the following reasons:

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The records indicate that the appellant met with a road accident on 02.02.2016 and filed a claim petition seeking

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HC-KAR

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for compensation. In support of her claim, she has examined herself as P.W.1 and also examined two other witnesses as P.W.2 and P.W.3 and got marked Ex.P.1 to Ex.P.19. The respondent examined two witnesses and got marked Ex.R1 to Ex.R13. The Tribunal after assessing the evidence on record, awarded the compensation of Rs.3,66,800/- along with interest at 8% p.a. It is to be noticed that the appellant sustained crush injuries on her right foot as per the medical records, the fractures of 2^nd , 3^rd , 4^th and 5^th metatarsal heads with type III open fracture of medial malleolus. Dr.S.A.Somasekhar examined as P.W.2 in order to prove the disability has assessed the disability at 54% to right lower limb and 27% to the whole body. The Tribunal recorded the finding that the said Doctor has not divided the left lower limb disability by 3 while calculating the whole body disability and when considering the said aspect, it has assessed disability at 16%. Taking into account the nature of fractures and the reasoning of the Tribunal, I am of the considered view that the Tribunal was fully justified in the assessment of disability.

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NC: 2026:KHC:15285 MFA No. 275 of 2018

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HC-KAR

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Insofar as income of the injured is concerned, she has contended that she was working as a maid and helper at M/s Gozippy Trips, Bengaluru and used to earn Rs.12,500/- per month, in order to prove the same, she has produced two vouchers at Ex.P.18 and Ex.P.19 and also examined P.W.3. It is to be noticed that the petitioner has failed to produce any other document to show that she was appointed by the said organization and she used to get the said amount regularly much prior to the accident and it is also not forthcoming whether she has lost the said employment due to the accident. In the absence of such evidence, I am of the considered view that the income of the injured is required to be re-assessed notionally at Rs.9,500/- placing reliance on the chart prepared by the KSLSA. It is to be noticed that the petitioner has undergone treatment and surgery at Victoria Hospital from 02.02.2016 to 25.02.2016 and thereafter from 22.04.2016 to 27.04.2016. Considering the oral and documentary evidence available on record, I am of the considered view that the compensation awarded by the Tribunal is required to be reassessed and accordingly the same is assessed as under:

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HC-KAR

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Loss of Future - 9,500/- x 12 x 15 x 16%= 2,73,600/income due to disability

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HEADS	AMOUNT (in Rs.)
Pain & suffering	40,000/-
Medical expenses	43,387/-
Loss of income during laid up period	28,500/-
Loss of future income	2,73,600
Loss of future amenities and happiness	40,000/-
Attendant, conveyance, food and nourishment charges	20,000/-
Future Medical expenses	15,000/-
Total	4,60,487/-

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Thus, the appellant-claimant shall be entitled to a total compensation of Rs.4,60,487/- as against Rs.3,66,800/awarded by the Tribunal.

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The contention of the learned counsel for the appellant that the appellant/injured is entitled to compensation under the head of loss of future prospects cannot be considered as there is no evidence on record to substantiate that due to the aforesaid disability, the appellant has lost the employment and unable to carry out any work. Hence, the compensation of the said head cannot be awarded.

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NC: 2026:KHC:15285 MFA No. 275 of 2018

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HC-KAR

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In the result, this Court proceeds to pass the

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following:

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ORDER

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a) Appeal is allowed in part .

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b) The impugned judgment and award dated 06.10.2017 passed by the Tribunal is modified to an extent that the appellantclaimant would be entitled to total compensation of Rs.4,60,487/- as against Rs.3,66,800/- awarded by the Tribunal.

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c) The enhanced compensation shall carry at the rate of 6% p.a. from the date of petition till realisation.

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d) The respondent No.2 shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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e) The rest of the judgment and award of the Tribunal with respect to apportionment, deposit and release shall remain unaltered.

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f) Registry shall transmit the records to the Tribunal forthwith.

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g) Draw modified award accordingly.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RHS List No.: 1 Sl No.: 1

Smt Nagarathna Raju v. the Proprietor

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Smt Nagarathna Raju v. the Proprietor

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