Karnataka High Court

Sri Patalappa vs Sri Venkataramanappa on 10 June, 2021

Author: H.P.Sandesh

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 10TH DAY OF JUNE, 2021

                          BEFORE

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

                 M.F.A.NO.3793/2013 (MV)

BETWEEN:

SRI PATALAPPA
S/O MUNIYAPPA
AGED ABOUT 64 YEARS
R/AT NELAMAKANAHALLI VILLAGE
NANDI HOBLI
CHICKBALLAPURA TQ-562 101.
                                           ... APPELLANT

           (BY SMT.SUGUNA R. REDDY, ADVOCATE)

AND:

SRI VENKATARAMANAPPA
S/O THIRUMALAPPA
AGED ABOUT 40 YEARS
R/AT SRIRAMAPURA VILLAGE
CHINTHAMANI TQ
CHICKBALLAPUR DISTRICT-562 101.
                                           ... RESPONDENT

   (SERVICE OF NOTIC TO RESPONDENT THROUGH PAPER
 PUBLICATION IS ACCEPTED VIDE ORDER DATED 28.06.2019)

     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 19.12.2012
PASSED IN MVC.NO.24/2009 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND CJM AND MEMBER, ADDITIONAL MACT,
                                  2



CHICKBALLAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION     AND    SEEKING   ENHANCEMENT      OF
COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' 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 appeal is

taken up for final disposal.

This appeal is filed challenging the judgment and award

passed in M.V.C.No.24/2009 dated 19.12.2012 on the file of the

Senior Civil Judge and CJM and Additional Motor Accident Claims

Tribunal, Chickballapur questioning the quantum of

compensation.

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

injured had sustained grievous injuries in an accident that was

taken place on 10.12.2008 at about 2.15 p.m. due to the rash

and negligent driving of the driver of Hero Honda Passion vehicle

bearing No.KA-40, K-3091 at Sidlaghatta Circle, M.G. Road,

Chickballapur City and immediately the injured was taken to the

hospital, wherein he was inpatient as inpatient from 10.12.2008

to 18.12.2008. It is his case that due to the accidental injuries,

he has suffered permanent disability.

3. In pursuance to the claim petition, the Tribunal has

issued notice to the respondent. Though the respondent is

represented through a counsel, not filed any objection

statement.

4. The claimant, in order to substantiate his claim,

examined himself as P.W.1 and the Doctor as P.W.2 and got

marked the documents, Exs.P1 to P28. The respondent has not

led evidence and did not marked any documents.

5. The claimant, in order to prove his claim has

produced Ex.P9- wound certificate, Exs.P10 to Ex.P21-RTCs to

show that he is an agriculturist and also Ex.P22-Milk Producer

pass book. Apart from that, he has also produced medical bills,

19 in number which are marked as Ex.P23 and discharge

summary which is marked as Ex.P24. The claimant was also

doing Electric Winding work and to that effect, he has produced

Ex.P25-salary certificate and he was earning Rs.100/- per day.

6. The Tribunal, after considering both oral and

documentary evidence placed on record, awarded compensation

of Rs.29,017.59/- under three heads i.e., Rs.9,017.59 towards

medical bills, Rs.15,000/- towards pain and suffering and

Rs.5,000/- towards diet and incidental charges. Hence, the

present appeal is filed.

7. The counsel appearing for the claimant would

vehemently contend that the Tribunal has committed an error in

awarding Rs.15,000/- towards pain and suffering. The claimant

has suffered comminuted fracture lower 1/3rd of right tibia and

also took treatment as inpatient for 9 days. The Tribunal failed

to award any compensation on the head of loss of earning during

laid up period and also not awarded any compensation under the

head loss of future loss income, in coming to the conclusion that

the disability has not been proved, in spite of the fact that

P.W.2-doctor has been examined. Hence, it requires

interference of this Court.

8. Having heard the learned counsel for appellant and

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

that would 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):

9. Having heard the arguments of learned counsel for

the appellant and also on perusal of the records particularly,

Ex.P9-wound certificate, it is evident that the doctor has opined

that the injury suffered by the claimant is grievous in nature and

the X-ray shows that he has suffered comminuted fracture lower

1/3rd of right tibia. The claimant has also produced Ex.P24-

discharge summary wherein, the admission date is mentioned as

10.12.2008 and he was discharged on 18.12.2008. The doctor,

who has been examined as P.W.2 in his evidence in the form of

affidavit categorically, says that the claimant was subjected to

CRIF surgery with interlocking nailing right tibia. On

examination, he also observed right lower limb hold healed scar

over anterior aspect of right knee midline, tenderness over lower

1/3rd right leg, right knee joint moments, range of moments

restricted to 10 degrees of flexion terminally, right ankle joint

tenderness present around the right ankle joint and range

moments restricted to 10 degrees of plantar flexion and 5

degrees of dorsi flexion. Hence, he assessed the disability at

20% to the right lower limb and 10% to the whole body. This

witness was not cross-examined.

10. Having considered the evidence of P.W.2-doctor, it is

clear that he has assigned reasons in coming to the conclusion of

disability. It is not in dispute that the disability assessed by the

doctor is in respect of the particular limb i.e., right lower limb to

the extent of 20%. While deposing the disability, he said 10%

disability to whole body. However, the Tribunal has committed

an error in coming to the conclusion that the disability has not

been proved, in spite of the fact that the doctor has been

examined and he has given reasons and not cross-examined. In

spite of assigning reasons for disability also, the Tribunal has

come to the conclusion, no reason has been assigned by the

doctor with regard to the disability and the very approach of the

Tribunal is erroneous. Having taken note of the said fact, the

disability comes to 7%, if 1/3rd is taken out of 20% as assessed

by the doctor and 10% to the whole body assessed by the doctor

is not correct.

11. Now coming to the aspect of income, the accident is

of the year 2008. The claimant claims that he was an

agriculturist and apart from that, he was doing milk vending

business. In order to substantiate the same, he has produced

Exs.P10 to Ex.P21-RTCs and also Ex.P22-Milk Producer Pass

Book to prove that he was doing milk vending business and no

person has been examined, both in respect of milk vending

business and with regard to his claim that he was doing electric

winding work and hence, the same cannot be considered.

However, taking into note of the fact that he is an agriculturist,

for the year 2008, the notional income would be Rs.4,500/- per

month and considering the RTC extracts, Rs.500/- can be added

and if the same is added, the monthly income of the claimant

would be Rs.5,000/- per month.

12. Having taken note of the fact that the claimant has

sustained fracture and accident has taken place in the year

2008, it is appropriate to award Rs.30,000/- on the head of pain

and suffering as against Rs.15,000/- awarded by the Tribunal.

13. The Tribunal also considered medical bills to the tune

of Rs.9,017.59/- and hence, the same is retained since it is

based on the documentary evidence.

14. The Tribunal has committed an error in awarding

Rs.5,000/- on the head of diet and incidental expenses. The

discharge summary shows that the claimant was inpatient for a

period of 9 days. Hence, it is appropriate to award Rs.10,000/-

on the head of food, nourishment, conveyance and other

incidental expenses.

15. Taking into note of the nature of fracture i.e.,

comminuted fracture lower 1/3rd of right tibia, it requires

minimum three months for uniting the fracture and rest, the loss

of income has to be considered for a period of three months

during the laid up period. Hence, a sum of Rs.15,000/- towards

loss of income during laid up period taking the income of the

claimant at Rs.5,000/- per month.

16. The injured was aged about 60 years and the doctor

has also assessed the disability to whole body at 10%.

However, this Court has taken the disability as 7%. When such

being the case, the loss of future income would be Rs.37,800/-

Rs.5,000x7x12x9/100.

17. The injured is also entitled for compensation under

the head loss of amenities and taking into consideration the age

of the claimant as 60 years and he has to lead rest of his life

with disability of 7%, it is appropriate to award Rs.10,000/-

under the head loss of amenities.

18. After revisiting compensation on all the heads, the

total compensation comes to Rs.1,11,818/- as against

Rs.29,100/- awarded by the Tribunal.

19. 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.24/2009 dated 19.12.2012 on the file of the Senior Civil Judge and CJM and Additional Motor Accident Claims Tribunal, Chickballapur is modified granting compensation of Rs.1,11,818/- with interest at 6% per annum as against Rs.29,017.59/-.