Karnataka High Court
Sudha Krishna Mandolkar vs Narayan Ravindra Badiger on 22 June, 2022
Bench: P.Krishna Bhat
-1-
MFA No. 25042 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISC. FIRST APPEAL NO. 25042 OF 2010 (MV-I)
BETWEEN:
SUDHA KRISHNA MANDOLKAR
AGE: 51 YEARS, OCC: AGRICULTURER/O: H.NO. 824,
MENSE GALLIBELGAUM. NOW R/O KANGRAL
GALLIBELGAUM.
...APPELLANT
(BY SRI. AVINASH MALIPATIL, ADV. FOR SHRIHARSH A
NEELOPANT, ADV.)
AND:
1. NARAYAN RAVINDRA BADIGER
R/O. C/O S.B. DHONDWADKAR2323/B, HATTIHOLE
GALLIBELGAUM. (OWNER OF TATA INDICA CAR
BEARING NO. MH-02/MA-4022)
2. THE ORIENTAL INSURANCE
COMPANY LTD., THROUGH ITS MANAGING
Digitally signed DIRECTORORIENTAL HOUSE, CLUB ROAD,BELGAUM.
by JAGADISH T
R
Location: HIGH
COURT OF
...RESPONDENTS
KARNATAKA,
DHARWAD
Date:
2022.06.24
10:23:43
(BY SRI. G.N. RAICHUR, ADVOCATE FOR R2)(R1-SERVED)
+0530
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE MV
AC PRAYING TO SE-ASIDE THE JUDGMENT AND AWARD DATED
18.6.2010 IN MVC NO.772/2009 PASSED BY THE COURT OF FTC-
II AND ADDL MACT, BELGAUM AND TO ENHANCE THE
COMPENSATION ALREADY GRANTED TO THE APPELLANT IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING.
-2-
MFA No. 25042 of 2010
JUDGMENT
This appeal is at the instance of the claimant seeking
enhancement of compensation awarded under judgment
and award dated 18.06.2010 in MVC No.772/2009 by the
learned FTC-II and Addl. MACT, Belgaum (for short,
'Tribunal'). By the said judgment and award, the learned
Tribunal awarded a total compensation of Rs.1,24,640/-
with interest thereon at 6% per annum from the date of
petition till date of payment.
2. Brief facts insofar as the same are necessary for
the purpose of adjudicating the present appeal are that on
6.2.2009 at about 6.45 p.m., when the claimant/appellant
was walking by the side of road, offending Tata Indica Car
bearing registration No.MH-02/MA-4022 being driven by
it's driver in a rash and negligent manner and in high
speed dashed against her resulting in grievous injuries to
her.
3. Before the learned Tribunal, owner of the
offending car remained exparte and the Insurance
MFA No. 25042 of 2010
Company resisted the claim petition by filing it's written
statement.
4. During trial, the claimant examined herself as
PW1 and she examined a Medical Expert as PW2 and
Exs.P1 to P13 were marked. Respondent-Insurance
Company did not examine any witness; but Ex.R1-policy of
insurance was marked.
5. The only contention advanced by the learned
counsel for the appellant/claimant is regarding
insufficiency of the compensation awarded and in
particular, quantum of compensation assessed by the
learned Tribunal under the head of loss of earning
capacity. Learned counsel drew my attention to the
elaborate medical records produced, inter-alia, Ex.P5-
Wound Certificate, Ex.P9-Discharge Summary and Ex.P12-
Disability Certificate and the oral evidence of PW1 and
PW2. He, therefore, submitted that the compensation
awarded by the learned Tribunal is liable to be enhanced.
MFA No. 25042 of 2010
6. Learned counsel for the Insurance Company,
per contra, contended that the learned Tribunal having
appreciated the entire evidence placed before it has
awarded just and reasonable compensation and therefore,
there is no merit in this appeal and the same is liable to be
dismissed.
7. I have given my careful consideration to the
submissions made on both sides and perused the records.
8. In regard to the nature of injuries suffered by
the claimant, Ex.P5-Wound Certificate, Ex.P9-Discharge
Summary and Ex.P12-Disability Certificate are relevant to
be considered. Ex.P5-Wound Certificate reads as under:
i) Bone deep laceration (+) over the medial aspect
of right foot extending upto base of great toe
measuring 8x5 cms
ii) Comp. comminuted # of lower 1/3rd of tibia (rt
side)
iii) # of 2nd, 3rd, 4th and 5th metatarsal bone (rt side)
9. Ex.P9-Discharge Summary reads as under:
DOA:06/02/09 DOD:17/09/09
DOS:07/02/09
CLW over medial aspect of (R) foot over the base great
toe 8x5 cms tip of the #ed bone exposed through the
medial aspect of L/3rd leg.
X-ray :- i) L/3rd comp. commin type 1 # tibia and fibula
MFA No. 25042 of 2010
ii) # 2nd, 3rd, 4th and 5th metatarsal bone
DIAGNOSIS:
1) L/3rd comp.c comm. Type 1# tibia and fibula
2) # 2nd, 3rd, 4th and 5th metatarsal bone.
PROCEDURE:
- CR interlocking Nailing SA
- CR K-wiring
ADVICE:
A/k slab for (10) days followed by A/K cast for (40)
days.
Non wt bearing for 3 months.
10. The above clearly shows that the claimant had
suffered compound comminuted fracture of lower 1/3rd of
right tibia and there were fractures of 2nd, 3rd, 4th and 5th
metatarsal bone of right foot. PW2-doctor had stated that
there was bone deep laceration over medial aspect of right
foot extended to the base great toe measuring 8x5 cms.
The above details furnished in Ex.P5-Wound Certificate
shows that the claimant had suffered a very serious
fracture of right lower leg which is weight bearing limb of
the body. This is further supported by an entry in the
Discharge Summary issued by the hospital where claimant
had taken treatment. PW2-doctor examined before the
MFA No. 25042 of 2010
learned Tribunal was the one who treated the claimant in
the hospital where she had undergone treatment. In his
evidence, he had clearly stated about various disabilities
suffered by the claimant including shortening of the right
leg and it reads as under:
1) Compound comminuted fracture of right
tibia fibula
2) Fracture 2nd, 3rd, 4th and 5th metatarsal right
foot.
I state that the petitioner complains of pain in the right
knee and ankle, difficulty to stand, walk on right lower
limb.
On general examination of patient, I certify Gait
Antalgic with help of crutches. Inspection of patient in
lying down supine position, wasting of right leg muscles,
shortening of right lower limb, palpation muscle
wasting-right leg 1.0 cm, shortening of right lower limb
2.5 cms. Petitioner is facing difficulties i.e. standing for
long time on affected leg difficult and painful, walking
for long distance difficult and painful, squatting difficult
and painful, sitting cross legged difficult and painful,
kneeling down difficult and painful, climbing up,
climbing down sloppy surface painful and difficult,
restriction of joint movement of the affected limb as
examined above.
I stated that, as per may advise the petitioner has taken
X-ray on 27.3.2010 and it reveals malunited fracture
right tibia fibula with implant in situ, osteoarthritis right
knee, and ankle.
I state that functional disability observed to the
petitioner are restriction of right knee and ankle
movements, muscle wasting of right leg, shortening of
right lower limb present and petitioner cannot walk
without the support of steel walker.
After considering the clinical and radiological findings
and after going through ALIMC and AAOA (American)
manuals the patient in my opinion has got permanent
physical disability amount to 40% to right lower limb.
MFA No. 25042 of 2010
11. PW2-doctor has stated that physical disability
was amounting to 40% to the right lower limb. Since
there was shortening of right leg, even though physical
disability was assessed at 40% of the right lower limb,
functional disability cannot be assessed based on the
physical disability of a particular limb. This view of mine is
supported by observations of PW2-doctor that the claimant
was not in a position to walk properly in view of restriction
of right knee and ankle moment and she requires support
of steel walker for walking. Therefore, her functional
disability is required to be assessed at 20% to the whole
body. Even though medical records show that her age is
50 years at the time of the accident, complaint which is
lodged by her shows that she was aged about 52 years at
the time of the accident. Therefore, her age will have to
be taken as 52 years at the time of the accident and for
the said age, appropriate multiplier is 11.
12. Learned Tribunal had taken a lesser monthly
income of the claimant and therefore, by following the
MFA No. 25042 of 2010
chart prepared by Karnataka State Legal Services
Authority, for the year 2009 when the accident took place,
notional income is Rs.5,000/- per month. In view of
various decisions of the Hon'ble Apex Court in Jagadish
Vs. Mohan & Others , Sandeep Khanuja Vs. Atul
Dande2, Erudhaya Priya Vs. State Express Transport
Corporation Limited3 and also decision of Division Bench
of this Court in New India Assurance Company Ltd.
Vs. Abdul M Tahasildar4, loss of future prospects will
have to be included. Since the claimant was aged 52
years, loss of future prospects should be added at 10%.
Therefore, loss of earning capacity is required to be
recomputed as under:
Loss of earning capacity:
Rs.5,000 + 10% x 12 x 11 x 20/100= Rs.1,45,200/-
13. The compensation awarded by the learned
Tribunal under the heads of pain and suffering at
Rs.45,000/-, Rs.32,200/- towards medical expenses and
(2018) 4 SCC 571
(2017) 3 SCC 351
2020 SCC Online SC 601
MFA 103807/2016 & MFA 103835/2016, dated 27.05.2022
MFA No. 25042 of 2010
Rs.10,000/- towards attendant and diet charges are
maintained. Thus, the claimant shall be entitled to total
compensation of Rs.2,32,400/- as against Rs.1,24,640/-
awarded by the learned Tribunal. Accordingly, the claimant
would be entitled to enhanced compensation of
Rs.1,07,760/- which shall carry interest at the rate of
6% per annum from the date of petition till deposit. The
respondent-Insurance Company shall deposit the
enhanced compensation amount with accrued interest
before the learned Tribunal within six weeks from today.
Transmit the records to the learned Tribunal forthwith.
14. The appeal filed by the claimant is allowed in
part to the extent indicated above. No order as to costs.
Sd/-
JUDGE
JTR
