Karnataka High Court

Ramu @ Ramachari vs M/S. Bajaj Allianz General ... on 24 February, 2022

Bench: P S Kumar, Rajendra Badamikar

                           1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                      PRESENT

     THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR

                         AND
 THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

             M.F.A. NO.3648 OF 2015 (MV)

BETWEEN :

RAMU @ RAMACHARI
S/O NARAYANAPPA @
NARAYANACHARI
AGED 23 YEARS
C/O VINOD , NO.145/11
5TH 'B' MAIN, ALLAMAPRABHU ROAD
HANUMANTHANAGAR
BENGALURU-560 019                        ...APPELLANT

(BY SHRI. D.S. SRIDHAR FOR
    SHRI. K.V. SHYAMAPRASADA, ADVOCATES)

AND :
1.     M/S. BAJAJ ALLIANZ GENERAL
       INSURANCE CO. LTD.,
       GROUND FLOOR, NO.31
       T.B.R., 1ST CROSS
       NEW MISSION ROAD
       BENGALURU-41
       (NEAR BENGALURU STOCK EXCHANGE)
       REPRESENTED BY ITS MANAGER

2.     SMT. CHIKKAMUNIYAMMA @ CHIKKAMMA
       W/O KARIYAPPA
                             2




     MAJOR
     NO.3761, 14TH CROSS
     GAYATHRINAGAR
     BANGALORE-560 021                  ...RESPONDENTS

(BY SHRI. B. PRADEEP, ADVOCATE FOR R1;
    VIDE ORDER DTD.19.01.2017, NOTICE TO
    R2 IS DISPENSED WITH)

[THROUGH VIDEO CONFERENCE]

     THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED.4.2.2015 PASSED IN MVC
NO.6923/2013 ON THE FILE OF THE 16TH ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION

      THIS MFA COMING ON FOR ADMISSION THIS DAY,
P.S. DINESH KUMAR J, DELIVERED THE FOLLOWING:-


                       JUDGMENT

This appeal seeking enhancement of

compensation, is presented by the injured claimant in

MVC No.6923/2013 challenging the judgment and

award dated February 4, 2015 passed by the MACT,

XVI Additional Judge, Court of Small Causes, (SCCH-

14), Bengaluru.

2. For the sake of convenience, parties shall

be referred as per their status in the Tribunal.

3. We have heard Shri. D.S. Sridhar learned

Advocate for the claimants and Shri. B. Pradeep,

learned Advocate for the insurer.

4. Shri. D.S. Sridhar, for the appellant

submitted that claimant has suffered paraplegia and is

permanently disabled. The Tribunal has erred in

considering the whole body disability at 36%. The

Tribunal has not awarded adequate compensation

under the heads 'pain and suffering', 'nourishment,

conveyance and attendant charges', 'loss of

amenities', 'loss of income during laid-up period', 'loss

of future income' and 'future medical expenses'.

Accordingly, he prayed for suitable enhancement.

5. Shri. Shri. B. Pradeep for Insurer argued in

support of the impugned judgment and award and

prayed for dismissing this appeal.

6. We have carefully considered rival

contentions and perused the records.

7. Undisputed facts of the case are, the

offending autorickshaw dashed against the claimant

causing injuries. He was given first-aid in the Sanjay

Gandhi Hospital and thereafter shifted to Sevabhai

Hospital. He has undergone spine surgery.

8. Claimant filed the instant claim petition

contending inter alia that he was working as an LIC

Sub-Agent and earning Rs.15,000/- per month.

Due to the injuries sustained, he has become

permanently disabled and accordingly claimed

compensation of Rs.25,00,000/-.

9. Claimant was examined as P.W.1 and

one Dr. Mohan has been examined as P.W.2. On

behalf of claimant Exs. P1 to P14 have been marked.

On behalf of the respondents, none is examined nor

any document produced.

10. The principal argument urged on behalf of

the claimant is that he is permanently disabled. Shri.

Sridhar has placed reliance on Doctor's evidence

(PW.2) and Ex.P13 in support of his contention.

11. We have carefully perused the evidence of

the Doctor, P.W.2. He has stated that claimant had

sustained following injuries:

"1. Compression fracture of L3 with paraplegia

2. Fracture of both calcanium

3. Abrasion injuries over right ht shoulder and forehead."

12. It is stated in para 2 of Doctor's affidavit

that pedicle screws were fixed between L2-L4 and

decompressed. Claimant was discharged on

30.11.2013. It is further stated that he has examined

the claimant on July 21, 2014 and claimant was

complaining of pain in the back bone and both legs,

difficulty to walk without support, difficulty to sit

crossed-legs and to use Indian type toilet etc. His

diagnosis is recorded as follows:

"Weakness in both lower limbs.

Healed surgical scar mark over the Right and left leg. Pain and Tenderness over the fracture site. Thickening of Right and left leg felt. Range of movements of Right and left leg, stiffness last degree flexion.

Restricted.

Altered sensation over scar tissue. Daily activities cross leg sitting, squatting for using Indian toilets were found to be difficult. Patient walks with difficulty Unable to do earlier job.

Implants in situ in left leg and spinal card bone."

(Emphasis Supplied)

13. The Doctor has stated that claimant was

having permanent disability of 30% in the right lower

limb, 36% in the left lower limb and 60% whole body

disability.

14. In the cross-examination, he has admitted

that the implanted 'K-wires' were removed and

internal fixation to the right leg was also removed. He

has denied the suggestion that he had falsely deposed

that the disability was 60%.

15. Ex.P10 is the discharge summary. The

treatment given to the patient is recorded as follows

in the discharge summary:

"Treatment: Under GA spine fixed with pedicle screws fixed between L2-L4 and de compressed, ORIF with K-wires fixed to right calcanium and the left with plate and screws fixed, other injuries treated conservatively."

16. It was argued on behalf of the insurer that

Doctor has certified that claimant can walk with

difficulty. If claimant can walk, though with difficulty,

his case does not fall under the category of one

suffering with paraplegia with 100% disability.

17. The Discharge Certificate (Ex.P10) shows

that claimant was admitted on 10.11.2013 and

discharged on 30.11.2013.

18. Thus, a combined reading of discharge

summary and the evidence of Doctor shows that

claimant has suffered some disability, but not 100%

disability. The Tribunal has considered the whole

body disability at 36%. The Doctor has stated that

disability of right lower limb is 30% and left lower limb

is 36% and due to fracture of L3 as 60%. He has also

stated that the whole body disability is 60%. As rightly

held by the Tribunal in para 16 of the judgment, the

Doctor has not mentioned the range of movement of

the left limb nor given the detailed calculation for

assessment of disability. The Tribunal, in its opinion

has assessed the functional disability as 20%. In the

absence of specific medical evidence, it is not possible

to fix the functional disability, arbitrarily.

19. As rightly recorded by the Tribunal,

claimant was not doing any manual labour, but

working as an LIC Sub-Agent.

20. In motor vehicle cases, the whole body

disability is considered as 1/3rd of the cumulative

disability to various parts of the body. Hence, applying

this Rule, the whole body disability works out to 42%

(30+36+60 divided by 3). Hence, we are inclined

to consider the whole body disability at 40%.

Accordingly, the compensation is re-computed.

21. The accident is of the year 2013.

Claimant has not produced any proof of income.

This Court has been consistently considering the

notional earning capacity of an able-bodied

person in the year 2013 as Rs.8,000/-. Claimant was

aged 21 years at the time of accident. Therefore,

the multiplier of 18 applied by the Tribunal

is correct.

The loss of future income is calculated

as follows:

The Annual notional income works out to

Rs.96,000/-(Rs.8,000*12). By applying 18 as multiplier,

the loss of future income works out to Rs.17,28,000/-

(Rs.96,000*18). The loss of earning capacity of the

claimant is to an extent of 40%. Hence, the loss of future

income works out to Rs.6,91,200/- (Rs.17,28,000*40%).

22. The Tribunal has considered the laid-up

period for three months and the same is maintained.

Accordingly, compensation under different heads is

recomputed/awarded as follows:

      SL.NO.                 DESCRIPTION                 AMOUNT


1.                    Pain and suffering                 Rs.1,00,000
2.                    Medical expenses                   Rs.1,75,000
3.                    Nourishment,
                      conveyance        and               Rs.25,000
                      attendant charges





4.                  Loss of amenities
                                                     Rs.50,000

5.                  Loss of income for laid
                    up period                        Rs.24,000
                     (Rs.8,000*3)
6.                  Loss of future income
                                                    Rs.6,91,200

                    TOTAL                     Rs.10,65,200

Less Compensation awarded by the Rs.5,68,000 Tribunal Enhanced Compensation Rs.4,97,200

23. The claimant has not produced any

material to substantiate the future medical expenses.

Hence, the same is not awarded.

24. In motor vehicle compensation case, the

compensation must be just and appropriate and this

Court has been consistently awarding interest at 6%

p.a.. Therefore, in our considered view, awarding

interest at 6% p.a. throughout, is just and

appropriate.

25. Hence, the following;

ORDER