The Divisional Controller Vs Sri. Abhishek H S

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED31.03.2015 PASSED IN MVC NO.94/2012 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-II, HASSAN, AWARDING COMPENSATION OF Rs.2,06,230/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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IN MFA NO. 6218/2015

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BETWEEN:

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THE DIVISIONAL CONTROLLER K.S.R.T.C HASSAN DIVISION HASSAN. REPRESENTED BY CHIEF LAW OFFICER KSRTC, CENTRAL OFFICES, SHANTHINAGAR, BANGALORE.

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...APPELLANT

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(BY SRI. G LAKSHMEESH RAO.,ADVOCATE)

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AND:

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SRI. ABHISHEK H S S/O SUMANOHAR.P AGED 23 YEARS, II YEAR STUDENT OF B.SC RESIDENT OF CHRISTIAN COLONY, M.HOSAKOPPALU, H.N.PURA ROAD, HASSAN.

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...RESPONDENT

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(BY SRI. SHANTHA VEERAIAH., ADVOCATE)

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED31.03.2015 PASSED IN MVC NO.93/2012 ON THE FILE OF THE ADDITIONAL DISTRICT JUDGE, MEMBER, MACT-II, HASSAN, AWARDING COMPENSATION OF Rs.2,04,926/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.

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THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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Heard the arguments on both the sides.

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This appeal is filed by the KSRTC against the judgment and award dated 31.03.2015 passed in MVC No.94/2012 on the file of the Additional District Judge and MACT-II at Hassan, challenging the quantum of compensation.

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Heard the arguments of the learned counsel for the

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appellant and learned counsel for respondent.

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The ranks of the parties are retained as per Tribunal for the sake of convenience.

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The injured-claimant met with an accident on 15.12.2011 at about 7.30 p.m. and filed claim petition claiming

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HC-KAR

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compensation of Rs.10,00,000/-. The Tribunal awarded sum of Rs.2,06,230/- with interest at 6% per annum from the date of the petition till realization.

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Aggrieved by the said order, the KSRTC preferred an appeal and mainly contended that PW-2 in the crossexamination admitted that fractures were united and there is no difficulty in continuing his education. But Tribunal has taken 9% disability to the whole body. The respondent in his evidence stated that he was pursuing diploma in engineering and he has not produced any evidence on record to show that he is doing electric work and was earning Rs.10,000/- per month. The Tribunal has taken his income as Rs.5,000/- per month erroneously and also granted amount under the head loss of future income when there is no positive evidence to show that he suffered disability and he was not earning at all.

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The Tribunal granted Rs.59,030/- towards medical expenses as per medical records and also hospital bills dated 17.12.2011 issued by SSM Super Speciality Hospital for Rs.10,050/-. In Ex.P17 it is stated that on 17.12.2011 he was admitted in the said hospital. He has also filed another

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HC-KAR

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discharge summary to show that he was admitted in Vaatsalya Hospital during the said period. But the Tribunal not considering the said evidence, has granted amount of Rs.59,030/-, which is excess and award of interest @ 8% is also on higher side.

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Heard the arguments of both the sides.

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The petitioner while proceeding in a motor bike bearing registration No.KA-13-L-1690 along with his friend Abhishek near Addihalli village, the driver of KSRTC bus bearing registration No.KA-13-F-1673 came in a rash and negligent manner and dashed to their motor bike from backside. The injured petitioner was hospitalized from 15.12.2011 to 23.12.2011 for a period of seven days. The petitioner was aged 23 years at the time of the accident and he was pursuing diploma in engineering, as such, the learned counsel for appellant contended that he is not entitled for any amount under the head loss of 'future earning income'. He has not proved that he was earning at the date of accident moreover he has not produced any document to show that there is loss of academic year due to the injuries sustained in the accident.

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HC-KAR

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PW-2 - Orthopedic surgeon clearly stated that the

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fractures are united and there is no difficulty for him to

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continue his education. The evidence of PW-2 shows that he has sustained the following injuries:-

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i. Pain, swelling & abnormal mobility of right leg distal 1/3^rd . X-ray shows fracture shaft of right tibia.

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ii. Tenderness over right thigh.

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iii. Tenderness of left knee.

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In my opinion above injury No.1 is grievous in nature, rest are simple in nature.

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The wound certificate is issued by me on 27.12.2011.

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He was treated as in-patient at above hospital from 15.12.2011 to 21.12.2011 bearing IP No:004423. He was treated for the grievous injury in form of surgery & closed reduction with interlocking nailing was done on 16.12.2011along with analgesics, tetvac and antibiotic therapy. His minor wounds were dressed in the minor OT. He was discharged with a acast support and advised not to use his right lower limb and walf for a minimum of 3 months. He was regular in his follow-ups, but I do not have all the dates nor the OP slips. He started using his right lower limb for small purposes with support after cast removal at 3 months and without support after 6 months. He took 8 months to recover considerably but still has a persisting stiff knee with difficulty to walk normally indicating the intensity of the injury. He was readmitted for implant removal on 12.11.2013 which was subsequently done on the same day & discharged on 14.11.2013. He was also advised physiotherapy which the patient took dutifully with little improvement but I don’t have the dates or the records.

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He was last seen by an orthopaedic on 27.06.2014 with C/o pain of the right lower limb with inability to squat, sit cross legged, lift weights, climb stairs without support,

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HC-KAR

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walk for long, do hard labor or even do certain acts of daily living. He also has difficulty to walk normally & walks with a limp with residual permanent stiff knee. All complaints were subsequently confirmed on below examination. He was assessed for disability too.

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X-ray was done which showed fracture of tibia to be malunited with early osteoarthritis changes at the neighboring joints.

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He needs another surgery for further correction of deformity and stability improvement. The cost of the same would be around Rs.25,000/-. However, he is deemed disabled permanently.

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DISABILITY was assessed and based on ALIMCO manual, PPI manual & my experience with using the Kessler's formula

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a+b(90-a)/90

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I am of the opinion that the patient has a loss of

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a) Mobility :9% b) Stability: 6% c) Power loss 7% d) Co-ordinated movement loss:4% e) Additional points & pain:3%

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Hence, a+b+c+d+e=total disability with respect to left lower limb i.e. (9+6+7+4+3=29).

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So he deserves a permanent partial physical disability of upto 29% with respect to his right lower limb.

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The Tribunal has taken the disability at 29%, 1/3^rd

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of the same comes to 9%. But the learned counsel for the appellant relied upon the cross-examination of the doctor and argued that fracture is united. He further contended, as he admitted in the cross-examination, that there is union of

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HC-KAR

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fracture. As there is variation in his evidence, it cannot be relied upon. But as per x-ray, he stated that as on the date of giving evidence, but subsequently it may lead to malunion due to early osteoarthritis changes at the neighboring joints. Therefore, it cannot be said that evidence of the doctor is not proper. The Tribunal rightly considered 9% disability. It cannot be said that evidence of the doctor cannot be considered. Admittedly, the petitioner sustained grievous injuries and two injuries are simple in nature and he was admitted in the hospital for a period of 7 days. He was studying diploma in engineering at the time of the accident. As per the medical evidence, he took treatment for eight months and he also underwent surgery for removal of the implants. The petitioner might not have attended his academic year atleast for a period of 3 to 4 months. Therefore, this Court deem fit to grant Rs.25,000/- towards loss of academic year. It is further stated that the bill issued by SSM Super Speciality hospital was not justified. As such, Rs.59,030 -9,050/- = 49,980/-. The petitioner is entitled for medical expenses to an extent of R.49,080/-.

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HC-KAR

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Thus, the Court finds it just and reasonable to grant

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following amount of compensation:

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Sl.Nos.	Particulars	Amount in Rs.
1.	Towards pain and suffering	50,000
2.	Towards loss of amenities	30,000
3.	Towards transportation, extra nourishment and attendant charges	30,000
4.	Towards academic loss	25,000
5.	Medical bills (Rs.59,030 - 9,050)	49,980
	Total	Rs.2,06,230/-

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Therefore, the compensation is reduced from

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Rs.2,06,230/- to RS.1,84,980/- with interest @ 6% per annum.

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In the result, the following order is passed:

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ORDER

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i. MFA.No.6217/2015 is allowed in part.

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ii. The judgment and award dated 31.03.2015 passed in MVC No.94/2012 on the file of the Additional District Judge and MACT-II at Hassan, is modified.

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HC-KAR

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iii. The claimant is entitled to a sum of Rs.1,84,980/- along with interest at 6% p.a., from the date of petition till the date of realization, instead of Rs.2,06,230/- granted by the tribunal.

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iv. Respondent - KSRTC has not deposited the award amount before the Tribunal. Therefore, respondent-KSRTC is directed to deposit Rs.1,84,980/- along with the interest at the rate of 6% within one month from the date of this order.

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v. On such deposit, petitioner is permitted to withdraw the entire amount along with interest accrued on the same.

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IN MFA.No.6218/2015

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This appeal is filed by the KSRTC against the judgment and award dated 31.03.2015 passed in MVC No.93/2012 on the file of the Additional District Judge and MACT-II at Hassan, challenging the quantum of compensation.

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HC-KAR

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The injured-claimant is the pillion rider. The

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petitioner was aged about 20 years. It was stated that he was studying in B.SC at the time of the accident.

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The injured-claimant met with an accident on 15.12.2011 at about 7.30 p.m. and filed claim petition claiming compensation of Rs.10,00,000/-. The Tribunal awarded sum of Rs.2,04,926/- with interest at 6% per annum from the date of the petition till realization.

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Aggrieved by the said order, the KSRTC preferred an appeal and mainly contended that PW-2 in the crossexamination admitted that fractures were united and there is no difficulty in continuing his education. But Tribunal has taken 9% disability to the whole body. The respondent in his evidence stated that he was pursuing B.Sc and he has not produced any evidence on record to show that he is doing electric work and was earning Rs.10,000/- per month. The Tribunal has taken his income as Rs.5,000/- per month erroneously and also granted amount under the head loss of future income when there is no positive evidence to show that he suffered disability and he was not earning at all.

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HC-KAR

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The Tribunal granted Rs.59,726/- towards medical expenses as per medical records and also hospital bills dated

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17.12.2011 issued by SSM Super Speciality Hospital for Rs.10,050. In Ex.P17 it is stated that on 17.12.2011 he was admitted in the said hospital. He has also filed another discharge summary to show that he was admitted in Vaatsalya Hospital during the said period. But the Tribunal not considering the said evidence has granted amount of Rs.59,726/-, which is excess and award of interest @ 6% is also on higher side.

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PW-2 - Orthopedic surgeon clearly stated that the

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fractures are united and there is no difficulty for him to continue his education and he sustained the one grievous injury and simple injuries.

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The Tribunal has taken the disability at 27%, 1/3^rd of the same comes to 9%. But the learned counsel for the appellant relied upon the cross-examination of the doctor and argued that fracture is united. He further contended, as he admitted in the cross-examination, that there is union of fracture. As there is variation in his evidence, it cannot be

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HC-KAR

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relied upon. But as per x-ray, he stated that as on the date of giving evidence, but subsequently it may lead to malunion due to early osteoarthritis changes at the neighboring joints. Therefore, it cannot be said that evidence of the doctor is not proper. The Tribunal rightly considered 9% disability. It cannot be said that evidence of the doctor cannot be considered. Admittedly, the petitioner sustained grievous injuries and two simple injuries and he was admitted in the hospital for a period of 7 days. He was studying at the time of the accident. As per the medical evidence, he took treatment for eight months and he also underwent surgery for removal of the implants. The petitioner might not have attended his academic year atleast for a period of 3 to 4 months. Therefore, this Court deem fit to grant Rs.25,000/- towards loss of academic year. It is further stated that the bill issued by SSM Super Spciality hospital was not justified. As such, Rs.59,726/-9,850/- = 49,876/-. The petitioner is entitled for medical expenses to an extent of R.49,876/-.

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Thus, the Court finds it just and reasonable to grant following amount of compensation:

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HC-KAR

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Sl.Nos.	Particulars	Amount in Rs.
1.	Towards pain and suffering	50,000
2.	Towards loss of amenities	30,000
3.	Towards transportation, extra nourishment and attendant charges	30,000
4.	Towards academic loss	25,000
5.	Medical bills (Rs.59,030 - 9,050)	49,876
	Total	Rs.1,84,876/-

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Therefore, the compensation is reduced from Rs.2,04,926/- to RS.1,84,876/- with interest @ 6% per annum.

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In the result, the following order is passed:

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ORDER

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i. MFA.No.6218/2015 is allowed in part.

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ii. The judgment and award dated 31.03.2015 passed in MVC No.93/2012 on the file of the Additional District Judge and MACT-II at Hassan, is modified.

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iii. The claimant is entitled to a sum of Rs.1,84,876/- along with interest at 6% p.a.,

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HC-KAR

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from the date of petition till the date of realization, instead of Rs.2,04,926/- granted by the tribunal.

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iv. Respondent - KSRTC has not deposited the award amount before the Tribunal. Therefore, respondent-KSRTC is directed to deposit Rs.1,84,876/- along with the interest at the rate of 6% within one month from the date of this order.

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v. On such deposit, petitioner is permitted to withdraw the entire amount along with interest accrued on the same.

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Sd/- (P SREE SUDHA) JUDGE

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AG

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List No.: 1 Sl No.: 16

The Divisional Controller v. Sri. Abhishek H S

Case brief

What is this about?

What did the court decide?

The Divisional Controller v. Sri. Abhishek H S

Case brief

What is this about?

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What the court decided

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