Umesh S/O Chanabasappa vs Basavaraj S/O Eshwarappa
2022 Latest Caselaw 11458 Kant

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                                      MFA No. 100621 of 2017


     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                            BENCH

      DATED THIS THE 22ND DAY OF AUGUST, 2022

                           BEFORE
         THE HON'BLE MR JUSTICE H.P.SANDESH
     MISCELLANEOUS FIRST APPEAL NO. 100621 OF
                         2017 (MV-I)
BETWEEN:

1.    UMESH S/O CHANABASAPPA
      AGE: 47 YEARS, OCC: AGRIL,
      R/O: KONASAGAR VILLAGE,
      MOLAKALMURU TALUK, CHITRADURGA DIST.,
      PRESENTLY R/O GUGGARHATTI,
      5TH WARD, BALLARI.583102
                                                  ...APPELLANT
(BY SRI. R H ANGADI, ADVOCATE)
AND:

1.    BASAVARAJ S/O ESHWARAPPA
      AGE: 38 YEARS, OCC: OWNER CUM DRIVER,
      OF MARUTI OMNI, BEARING,
      REG.NO.KA-16/N-0310,
      R/O: KONASAGAR VILLAGE,
      MALAKALMURU TALUK,
      CHITRADURGA DISTRICT.577501

2.    THE DIVISIONAL MANAGER
      NATIONAL INSURANCE CO.LTD.,
      PARVATHI NAGAR, BALLARI,
      BEARING POLICY
      NO.35101031146135702260
      VALID FROM 13.11.14 TO 12.11.15, 583103
                                                ...RESPONDENTS
(BY SRI. N.R.KUPPELUR, ADVOCATE FOR R2,
 NOTICE TO R1 SERVED)
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                                             MFA No. 100621 of 2017


      THIS APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED 01.12.2016 PASSED
IN MVC NO.1028/2015 ON THE FILE OF THE MOTOR ACCIDENT
CLAIMS TRIBUNAL-XII, BELLARY, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

Heard learned counsel for both the parties.

2. Factual matrix of the case of the claimant

before the Tribunal is that in the accident dated

01.03.2015 he had sustained fracture of femur and he was

inpatient for a period of 11 days and he is permanently

disabled and hence claimed compensation before the

Tribunal.

3. In respect of his claim, he also examined doctor

as P.W.2, who assessed 30% disability and the Tribunal

has taken only 5% disability and awarded compensation of

Rs.1,22,000/- with interest at 7% p.a. Hence, the present

appeal is filed.

MFA No. 100621 of 2017

4. Learned counsel for the appellant would

vehemently contend that the Tribunal has erred in not

considering the evidence on record and considered only

5% disability in spite of the claimant suffering fracture of

femur, which is united with mal union position and

compensation awarded on other heads is also meager.

5. He further contends that the income taken by

the Tribunal at Rs.5,000/- is on lower side and accident is

of the year 2015 and notional income ought to have been

considered and sought for enhancement of compensation.

6. Per contra, learned counsel for the respondent-

Insurance Company submits that doctor has deposed 30%

disability and the Tribunal has taken the disability at 5%

and in para No.8 of the judgement the Tribunal has

discussed in detai regarding disability referring some of

the judgments and hence the Tribunal has not committed

any error. He also submits that the doctor who is

examined before the Tribunal is not the treated doctor.

MFA No. 100621 of 2017

7. In view of the rival contentions of the parties,

the following points would arise for consideration:

i. Whether the Tribunal has committed an error in not awarding just and reasonable compensation?

ii. What order?

8. Regarding Point No.1: Having heard the

learned counsel for the parties and on perusal of the

material on record, wound certificate at Ex.P.4 discloses

that he has suffered the femur fracture and he was also

inpatient for a period of 11 days and doctor who has been

examined as P.W.2 categorically says that he treated him

in VIMS hospital and he assessed the disability at 25% to

whole body and he also stated that he needs further

treatment and which would cost Rs.20,000/-. In the cross

examination, witness says that injured taken first aid at

Government Hospital, Malakalmuru and had sustained

fracture of right femur as per wound certificate and the

fracture was in mal union position. It is also his evidence

MFA No. 100621 of 2017

that he has taken x-ray at the time of assessing disability

but there is radiological report which was from VIMS

Hospital. He admits that due to fracture only right knee is

effected but permanent disability to particular limb in joint

is 30%. It is suggested that he has not treated the injured

and he volunteers that he treated him at VIMS Hospital.

9. Having taken note that he is treated doctor and

injured has suffered fracture of femur and fracture is mal

united and the same has been lost sight of by the Tribunal

and taken only 5% disability, it ought to have been

considered as 10% which is 1/3rd of the assessed

disability. When such being the case, it is appropriate to

consider the disability at 10% + 3% for mal union.

Considering the age of the injured as 45 years, the

multiplier would be 14. Since the accident is of the year

2015, the notional income at Rs.8,000/- is to be

considered. Hence the compensation is reassessed as

under on the head permanent disability:

Rs.8,000 x 12 x 14 x 13% = Rs.1,74,720/-.

MFA No. 100621 of 2017

10. The compensation awarded by the Tribunal at

Rs.30,000/- is on lower side and hence it is appropriate to

award Rs.40,000/- towards pain and suffering.

Rs.30,000/- awarded by Tribunal towards medical

treatment and attendant charges is just and reasonable.

Rs.20,000/- awarded by the Tribunal on loss of amenities

is not just and reasonable and hence it is appropriate to

award Rs.30,000/- towards loss of amenities since he

has to lead rest of his life with disability of 13%. Doctor

has opined that cost of future medical expenses would be

Rs.20,000/- and he is in need of surgery and hence it is

appropriate to award Rs.20,000/- towards future medical

expenses.

11. In all, the claimant is entitled for

Rs.2,94,720/-. Accordingly, point No.1 is answered.

12. Regarding point No.2: In view of the

discussions made above, I pass the following:

MFA No. 100621 of 2017

ORDER

Appeal is allowed in part.

In modification of the impugned judgment and award

passed by the Tribunal, the claimant is entitled for a sum

of Rs.2,94,720/- as against Rs.1,22,000/- awarded by

the Tribunal in the impugned judgment and award.

Enhanced compensation shall carry interest at 6%

p.a. from the date of petition till realization and is ordered

to be paid/deposited within six weeks from the date of this

order.

Apportionment and deposit of the compensation

amount would be as per the award of the Tribunal.

The registry is directed to transmit the trial court

records forthwith.

Sd/-

JUDGE

SH