Karnataka High Court
Mr Hemanth Adappa vs Mr Walter Dias on 6 July, 2021
Author: H.P.Sandesh
1
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.5570/2013 (MV)
BETWEEN:
MR. HEMANTH ADAPPA
S/O LATE SUBBAYYA ADAPPA
AGED ABOUT 43 YEARS
RESIDING AT KOLLARABETTU HOUSE
AKASHABHAVANA, KAVOOR
MANGALURU TALUK-575015
DAKSHINA KANNADA. ... APPELLANT
(BY SRI NISHIT KUMAR SHETTY, ADVOCATE)
AND:
1. MR. WALTER DIAS
S/O NORBEL DIAS
AGED ABOUT 35 YEARS
R/AT PADI HOUSE, JAKRIBETTU
BANTWAL TALU,-574153
D.K. DISTRICT.
2. FUTURE GENERAL INDIA
ASSURANCE CO. LTD.,
INLAND AVENUE, 2ND FLOOR
B.G. ROAD, BALLALBAGH
MANGALURU, D.K. - 575001.
3. MR. SHAILESH KUMAR, ADULT,
S/O LATE NARAYANA BANTWAL
R/AT H.NO.15-22-1333
LOWER BENDOOR, KANKANADY
2
MANGALURU-575002. ... RESPONDENTS
(BY SRI O.MAHESH, ADVOCATE FOR R2;
VIDE ORDER DATED 22.06.2021,
NOTICE TO R1 IS DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 12.02.2013
PASSED IN MVC.NO.526/2012 ON THE FILE OF THE II
ADDITIONAL SENIOR CIVIL JUDGE, MACT, MANGALURU, D.K.,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Though the matter is listed for admission today, with the
consent of the learned counsel for both the parties, it is taken up
for final disposal.
This appeal is filed challenging the judgment and award
dated 12.02.2013, passed in M.V.C.No.526/2012, on the file of
the MACT, VI and II Additional Senior Civil Judge, Mangalore,
Dakshina Kannada, ('the Tribunal' for short) questioning the
quantum of compensation.
2. The parties are referred to as per their rankings
before the Tribunal to avoid confusion and for the convenience of
the Court.
3. The factual matrix of the case is that the claimant met
with an accident on 23.12.2011 and suffered seven injuries. Out
of that, the 7th injury is a fracture of shaft of femur at the
junction of upper and middle one third. The claimant was an
inpatient for a period of 15 days from 23.12.2011 to 7.1.2012.
In support of his claim, the claimant examined himself as P.W.1
and the doctor as P.W.2, who assessed the disability at 10% to
the left lower limb. It is the contention of the claimant that he
was earning Rs.10,000/- per month by doing business at Bunt's
Hostel Road. The claimant got marked the documents at Ex.P1
to P13. The respondent not examined any witness but got
marked the document at Ex.R1 the insurance policy. The
Tribunal, after considering both oral and documentary evidence,
allowed the claim petition in part and granted compensation of
Rs.1,44,559/-. Being aggrieved by the said judgment and award
passed by the Tribunal, the present appeal is filed by the
claimant.
4. Learned counsel appearing for the appellant would
vehemently contend that the compensation awarded by the
Tribunal is not just and reasonable. The Tribunal erred in
coming to the conclusion that the doctor who has been examined
as P.W.2 issued the disability certificate and also deposed in his
evidence that he is not an orthopedic surgeon nor treated or
operated the claimant. However, the full treatment was given
by Dr.Sudarshan Bhandary. The Tribunal awarded an amount of
Rs.35,000/- on the head of 'pain and sufferings'; an amount of
Rs.1,500/- towards 'conveyance, attendant charges and
nourshing food'; an amount of Rs.8,000/- on the head of 'loss of
income'; an amount of Rs.10,000/- on the head of 'future
medical expenses' and the same is on the lower side. In all, the
Tribunal granted an amount of Rs.1,44,559/- including the
medical expenses of Rs.90,059/-. Hence, it requires interference
of this Court.
5. Per contra, learned counsel appearing for the
respondent/Insurance Company would submit that Tribunal has
rightly rejected the evidence of P.W.2 since he is not an
orthopedic surgeon and also not a treated doctor. He has only
issued the disability certificate. Learned counsel also would
submit that the compensation awarded on the other heads is
just and reasonable. Hence, it does not require any interference
of this Court.
6. Having heard the arguments of the learned counsel
for the appellant and the learned counsel for the respondent-
Insurance Company, the points that would arise for the
consideration of this Court are:-
(i) Whether the Tribunal has committed an
error in not awarding the just and
reasonable compensation and whether it
requires interference of this Court ?
(ii) What order?
Point Nos.(i) and (ii):-
7. Having heard the respective counsel and also on
perusal of the records, particularly, the wound certificate
produced at Ex.P3, it discloses the seven injuries suffered by the
claimant and out of that, the 7th injury is the fracture of shaft of
femur at the junction of upper and middle one third, which is
grievous in nature. It is not in dispute that he was an inpatient
for a period of 15 days as per the case sheet at Ex.P11. The
evidence of P.W.2 is clear that the claimant was subjected to
surgery and in need of one more surgery for removal of the
implant. The Tribunal has not considered the disability while
calculating the loss of income, which is erroneous.
8. Having considered the material on record, when the
claimant has sustained the fracture of shaft of femur at the
junction of upper and middle one third along with other injuries
and the accident is of the year 2011, I do not find any reason to
enhance the compensation of Rs.30,000/- awarded on the head
of 'pain and sufferings'. However, the Tribunal erred in awarding
an amount of Rs.1500/- on the head of 'conveyance, attendant
charges and nourshing food'. The case sheet reveals that he
was an inpatient for a period of 15 days and subjected to
surgery. When such being the case, the Tribunal ought to have
awarded an amount of Rs.15,000/- instead of Rs.1,500/-.
Hence, an amount of Rs.15,000/- is awarded on the head of
''conveyance, attendant charges and nourshing food' as against
Rs.1,500/-.
9. The Tribunal also awarded an amount of Rs.90,059/-
towards 'medical expenses' and the same is based on the
medical bills produced before the Tribunal. Hence, it does not
require any interference of this Court.
10. The Tribunal awarded an amount of Rs.8,000/- on
the head of 'loss of income during the laid up period' by taking
the loss of income for a period of two months and the same is
erroneous. When the accident is of the year 2011, the Tribunal
ought to have taken the notional income of the claimant in the
absence of any documentary proof. Taking note of the fracture
and other injuries suffered by the claimant, it is appropriate to
assess the loss of income for a period of four months instead of
two months. Thus, taking the notional income of the claimant at
Rs.6,500/- per month for the accident of the year 2011 and the
loss of income for a period of four months, the compensation on
the head of 'loss of income during the laid up period' is
recalculated as under:-
Rs.6,500x4=Rs.26,000/.
11. The Tribunal awarded an amount of Rs.10,000/- on
the head of 'future medical expenses'. P.W.2 in his evidence
deposes that it requires Rs.30,000/- for removal of the implant.
Hence, without considering the evidence of the doctor, the
Tribunal awarded an amount of R.10,000/- for removing the
implant and the same is erroneous. Based on the evidence of
the doctor, the compensation awarded on the head of 'future
medical expenses' requires to be enhanced to Rs.15,000/- as
against Rs.10,000/-.
12. Insofar as the compensation awarded on the head of
'loss of future income' is concerned, the Tribunal has committed
an error in not considering the evidence of the doctor on the
ground that he is not an orthopedic surgeon and also not a
treated doctor nor operated the claimant. Having taken note of
the nature of seven injuries suffered by the claimant, the 7th
injury is the deformity around upper half of left thigh with
underlying fracture of shaft of femur at the junction of upper and
middle one third. When the claimant has suffered the fracture
of femur and also subjected to surgery, and so also he was an
inpatient for a period of 15 days, the Tribunal ought not to have
discarded the evidence of P.W.4. Hence, it is appropriate to
take the disability of 10% to the whole body while calculating the
'loss of future income'.
13. Having considered the income of the claimant at
Rs.6,500/- per month and by applying the relevant multiplier as
14 with the disability of 10%, the 'loss of future income' is
reassessed as under:-
Rs.6,500x12x14x10%=Rs.1,09,200/-
14. The Tribunal also not awarded any compensation on
the head of 'loss of amenities'. Having considered the age of the
claimant as 43 years and the disability of 10%, it is appropriate
to award an amount of Rs.25,000/- on the head of 'loss of
amenities'.
Accordingly, in all, the claimant is entitled for the total
compensation of Rs.3,15,259/- as against Rs.1,44,000/-.
15. In view of the discussion made above, I pass the
following:-
ORDER
(i) The appeal is allowed in part.
(ii) The judgment and award passed by the
Tribunal is modified by granting compensation of
Rs.3,15,259/- with interest at the rate of 6% per
annum from the date of petition till realization as
against Rs.1,44,000/-.
(iii) Respondent-Insurance Company is
directed to deposit the amount within 6 weeks' from
today.
(v) Registry to transmit the Trial Court
Records forthwith.
Sd/-
JUDGE
PYR
