Karnataka High Court
Sri Harinath G vs Sri R. Subramanyam on 15 June, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.6703/2013 (MV)
BETWEEN:
SRI HARINATH G.,
S/O LATE VENKATASWAMY,
AGED ABOUT 46 YEARS,
R/AT MAJEPALLI,
GUNDUGALU POST,
GANGA VARAM MANDAL,
ANDRA PRADESH - 517 001.
... APPELLANT
(BY SRI SUGUNA R. REDDY, ADVOCATE)
AND:
1. SRI R. SUBRAMANYAM
S/O P. VENKATAMUNI,
MAJOR IN AGE,
R/AT BUNDAKUNTA VILLAGE,
APPINAPALLI POST,
BEDDA PANJANI MANDAL,
ANDRA PRADESH-517 001.
2. THE BRANCH MANAGER
ICICI LOMBARD GENERAL INSURANCE COMPANY LTD.,
PRESTIGE CORNICE, 62/1,
2ND FLOOR, RICHMOND ROAD,
BENGALURU - 560 026.
... RESPONDENTS
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R2;
R1-SERVED)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 07.02.2013
PASSED IN MVC.NO.6980/2011 ON THE FILE OF THE 14TH
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT,
BENGALURU, 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 07.02.2013, passed in M.V.C.No.6980/2011 on the file of
the MACT, Court of Small Causes, Bengaluru City, SCCH.10 ('the
Tribunal' for short) questioning the quantum of compensation.
2. The parties are referred to as per their original
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 and sustained fracture. He also claims that
due to the accidental injuries, he suffered permanent disability.
In order to substantiate his contention, he examined himself as
P.W.1, another witness as P.W.2 and the doctor as P.W.3. On
the other hand, the respondent - Insurance Company has not
led any evidence. The claimant got marked documents Exs.P1
to P8. The Tribunal, after assessing the evidence on record,
allowed the claim petition by awarding compensation of
Rs.1,25,640/-. Being aggrieved by the said award, the claimant
is before this Court by filing the present appeal.
4. Learned counsel appearing for the appellant would
vehemently contend that the claimant has suffered fracture to
lower end of right femur (Type-I compound supracondylar
fracture) and also suffered fracture to the head of right humerus.
He was an inpatient from 24.11.2010 to 09.01.2011 and he was
hospitalized for a period of 46 days. He was subjected to two
surgeries. The doctor has assessed the disability to the whole
body at 47% and in his evidence, he has deposed that the
injured requires two more surgeries for correction of non-union
of the fracture, particularly, to the right humerus. However, the
Tribunal failed to award the just and reasonable compensation
and the compensation awarded by the Tribunal on all the heads
is meagre. Hence, it requires interference of this Court.
5. Per contra, learned counsel appearing for the
respondent No.2 would vehemently contend that the doctor who
has been examined as P.W.3 is not a treated doctor and he has
not assessed the limb disability but directly assessed the whole
body disability at 47%. Hence, the evidence of the doctor
cannot be accepted and it does not require the 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.1 and 2:-
7. Having heard the respective counsel and also on
perusal of the records, particularly, Ex.P6 - the wound
certificate, it discloses that the claimant has suffered two
fractures and also subjected to surgery. He was under
prolonged treatment for a period of 46 days and subjected to
two surgeries. On perusal of the evidence of doctor P.W.3,
admittedly, he is not a treated doctor and he suggested for two
more surgeries. He also in his evidence says that right humerus
is mal-united and requires a correction. Having perused the
nature of injuries sustained by the claimant, particularly, the
fracture of femur and right humerus, it is appropriate to award
an amount of Rs.50,000/- on the head of 'pain and sufferings' as
against Rs.20,000/- since the Tribunal failed to take note of the
fact of hospitalization of the claimant for a period of 46 days.
8. The Tribunal awarded an amount of Rs.3,000/- on
the head of 'medical expenses and other incidental charges'. No
medical bills are produced by the claimant before the Tribunal.
Taking into note of the fact that the injured was an inpatient for
a period of 46 days, this Court is of the view that the Tribunal
committed an error in awarding a meagre amount of Rs.3,000/-
towards incidental charges. The Tribunal lost sight of the total
number of days for which the claimant had undergone
treatment. Hence, it is appropriate to award an amount of
Rs.30,000/- on the head of 'medical expenses and other
incidental charges' as against Rs.3,000/-.
9. The Tribunal assessed the compensation by taking
the income of the claimant at Rs.4,000/- per month. The
accident is of the year 2010 and hence, the Tribunal ought to
have taken the income of the claimant at Rs.5,500/- per month.
Taking into note of the claimant having suffered two fractures
and subjected to surgery and so also in order to unite the said
fractures, it would take minimum 4 months and rest, the
compensation on the head of 'loss of earning during the
treatment' requires to be enhanced. Hence, taking the income
of the claimant at Rs.5,500/- for a period of 4 months, the
compensation on the head of 'loss of earning during the
treatment' is enhanced to Rs.22,000/-.
10. The Tribunal also committed an error in assessing
the compensation on the head of 'loss of future earning capacity
due to disability' without taking into note of the fact that he had
sustained two fractures, particularly, to the femur bone and right
humerus and he was subjected to surgery and also the doctor
has noticed mal-union of right humerus. When such being the
case, the disability taken to the extent of 12% is on the lower
side. When there is a mal-union in respect of the right humerus,
it is appropriate to take the disability at 18% instead of 12%.
Having taken the income of the claimant at Rs.5,500/- per
month, the disability at 18% and by applying the relevant
multiplier as 14, the compensation on the head of 'loss of future
earning capacity due to disability' is calculated as under:-
Rs.5,500x12x14x18% = Rs.1,66,320/-
11. The Tribunal also awarded an amount of Rs.10,000/-
on the head of 'loss of amenities'. When the claimant has
suffered the disability at 18% to the whole body and aged about
45 years, he has to lead rest of his life with the disability of
18%. Hence, it is appropriate to award an amount of
Rs.30,000/- as against Rs.10,000/- on the head of 'loss of
amenities'.
12. The Tribunal also awarded an amount of Rs.2,000/-
on the head of 'future medical expenses'. The doctor P.W.3
deposed that the claimant requires two more surgeries and there
are implants, which has to be removed and so also it requires
one more surgery for correction of mal-union in respect of right
humerus. It is also important to note that he took treatment in
the Government Hospital and has not incurred any medical
expenses. However, the Court cannot direct him to take future
treatment again in a Government Hospital. Taking into
consideration of all these factors, it is appropriate to award an
amount of Rs.25,000/- on the head of 'future medical expenses'.
Accordingly, the claimant is entitled for an amount of
Rs.3,23,320/- as compensation as against Rs.1,25,640/-.
13. 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.3,23,320/- with interest at the rate of 6% per
annum from the date of petition till realization.
(iii) Respondent-Insurance Company is
directed to deposit the amount within 6 weeks' from
today.
(iv) Registry to transmit the Trial Court
Records forthwith.
Sd/-
JUDGE
PYR
