Karnataka High Court

Ramesh Nayak vs Sadananda.N. Nayak on 6 July, 2021

Author: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 6TH DAY OF JULY, 2021

                          BEFORE

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

                  M.F.A.NO.9286/2013 (MV)

BETWEEN:

RAMESH NAYAK
AGED 45 YEARS,
S/O KESHAVA NAYAK,
RESIDING AT 2ND MAIN,
GOPALAPURA SANTHEKATTE,
PUTTUR VILLAGE AND POST-574 112
UDUPI TALUK AND DISTRICT.                      ... APPELLANT

              (BY SRI S.K.ACHARYA, ADVOCATE)
AND:

1.     SADANANDA N.NAYAK
       AGED 62 YEARS,
       S/O NARAYANA NAYAK,
       RESIDING AT SHREE KAMALA,
       NAYAK COMPOUND,
       HERGA VILLAGE AND POST-576 119
       UDUPI TALUK AND DISTRICT.

2.     UNITED INDIA INSURANCE COMPANY LIMITED
       MANIPAL BRANCH, MANIPAL-576119,
       UDUPI DISTRICT,
       REP. BY ITS BRANCH MANAGER.       ... RESPONDENTS

          (BY SRI RAVISH BENNI, ADVOCATE FOR R2;
                        R1-SERVED.)
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     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04.05.2012
PASSED IN MVC.NO.676/2009 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Though the appeal is listed for admission, with the consent

of learned counsel for both the parties, the matter is taken up

for final disposal.

This appeal is filed challenging the judgment and award

passed in M.V.C. No.676/2009 dated 04.05.2012 on the file of

the Principal Senior Civil Judge and Additional MACT, Udupi

questioning the quantum of compensation.

2. The factual matrix of the case is that the claimant

met with an accident on 31.05.2005 and hence, he made the

claim petition before the Tribunal claiming that he was working

as Supervisor and was earning Rs.6,500/- per month. He has

sustained six injuries, out of which injury Nos.1 and 2 are

grievous in nature i.e., intertrochanteric fracture of right femur

and undisplaced left medical condyle fracture tibia and other four

injuries are simple in nature.

3. In support of his claim, he examined the Doctor as

P.W.2 and he assessed the disability of 12% to particular limb

and 5% to whole body. The Tribunal, after considering the

material on record, awarded compensation of Rs.1,36,405/- with

interest at 6% per annum. Hence, the present appeal is filed

questioning the quantum of compensation.

4. The grounds urged in the appeal memo is that the

Tribunal committed an error in calculating the future loss of

income by taking the income of the claimant at Rs.4,000/- per

month when admittedly, the claimant was working as Supervisor

in M/s. Nayak and Sons. The Tribunal also committed an error

in not awarding just and reasonable compensation on all the

heads. It is also his contention that the compensation of

Rs.40,000/- awarded under the head pain and suffering is also

very meager and ought to have awarded at least Rs.1 lakh.

5. Per contra, learned counsel appearing for the

respondent-Insurance Company would submit that the Tribunal

has awarded just and reasonable compensation on all the heads

and it does not require any interference of this Court. The

counsel would also submit that though the Tribunal has assessed

the disability at 12% to particular limb and 5% to whole body,

while assessing future loss of income, taken only 7% disability.

6. Having heard the arguments of respective counsel

and also on perusal of the material available on record, the

points that arise for consideration of this Court are:

(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?

(ii) What order?

Point No.(i)

7. Having perused the material available on record, it is

seen that as per Ex.P3-wound certificate, the claimant has

sustained six injuries, out of which injury Nos.1 and 2 are

grievous in nature i.e., fracture of femur and fracture of tibia and

he was inpatient for a period of 19 days from 31.05.2005 to

18.06.2005. The injured is aged about 41 years at the time of

the accident. The Doctor also issued the disability certificate as

at Ex.P10 and the claimant was also subjected to surgery. The

disability assessed by the Doctor is 12% to particular limb i.e.,

left lower limb and 5% to whole body and also on examination of

the claimant for assessment of disability, he has found one

terminal restriction of right hip joint movement, second Grade II

posterior instability of left knee, third moderate pain in left knee.

8. Having considered the material on record and out of

the six injuries suffered, injury Nos.1 and 2 are grievous in

nature, i.e., fracture of femur and tibia, the compensation

awarded by the Tribunal on the head of pain and suffering at

Rs.40,000/- is just and reasonable and it does not require any

interference of this Court.

9. However, the Tribunal has committed an error in

awarding compensation of Rs.3,000/- and Rs.5,000/- towards

conveyance and food and nourishment. When the claimant was

inpatient for a period of 19 days, the Tribunal ought to have

awarded Rs.15,000/- and the same is awarded.

10. The Tribunal has awarded Rs.15,365/- towards

medical expenses and the same is based on the documents and

it does not require any interference of this Court.

11. The Tribunal has awarded Rs.16,000/- towards

income during laid up period taking four months salary at the

rate of Rs.4,000/- per month. Though, the claimant claims that

he was working as Supervisor and earning Rs.6,500/- per

month, no document is placed before the Court and also not

examined the employer. It is the accident of the year 2005 and

hence, I do not find any error committed by the Tribunal in

taking the income at Rs.4,000/- per month, in the absence of

any documentary proof and awarding Rs.16,000/-.

12. Now coming to the disability is concerned, the

Tribunal has taken the disability at 7% and the Doctor, who has

been examined as P.W.2 has assessed the disability at 12% to

the particular limb and 5% to whole body. The very evidence

given by the P.W.2 cannot be accepted for the reason that the

claimant has sustained two fractures i.e., fracture of femur and

fracture of tibia. When two fractures are sustained by the

claimant and the fractures are united, at least, the Tribunal

ought to have taken disability at 10%. Hence, it is appropriate

to take the disability at 10% to whole body by taking his income

as Rs.4,000/- per month and multiplier as 14. Hence, the future

loss of income works out to Rs.67,200/- (4,000x12x10x14/100).

13. The Tribunal has awarded Rs.10,000/- towards loss

of amenities. When this Court has considered the disability at

10% and the claimant has to lead rest of his life with the said

disability, it is appropriate to award Rs.25,000/- towards loss of

amenities as against Rs.10,000/- awarded by the Tribunal.

14. The records also disclose that the claimant was

subjected to surgery and the Tribunal has not awarded any

compensation towards future medical expenses. Hence, it is

appropriate to award Rs.15,000/- towards future medical

expenses.

After revisiting compensation on all the heads, the

claimant is entitled for compensation of Rs.1,93,565/- with

interest at 6% per annum as against Rs.1,36,405/- awarded by

the Tribunal.

Point No.(ii)

15. In view of the discussions made above, I proceed to

pass the following:

ORDER

(i) The appeal is allowed in part

(ii) The judgment and award passed in M.V.C.

No.676/2009 dated 04.05.2012 on the file of the Principal Senior Civil Judge and Additional MACT, Udupi is modified granting compensation of Rs.1,93,565/- with interest at 6% per annum as against Rs.1,36,405/- awarded by the Tribunal.