Karnataka High Court

Shri. Pramod Vithal Jalihal vs The Managing Director on 14 March, 2022

Bench: N.S.Sanjay Gowda

          IN THE HIGH COURT OF KARNATAKA

                     DHARWAD BENCH

     DATED THIS THE 14 T H DAY OF MARCH, 2022

                           BEFORE

THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

              M.F.A. No.101056 OF 2015 (MV)

BETWEEN:

SHRI. PRAMOD VITHAL JALIHAL
AGE: 50 YEARS, OCC: ENGINEER,
NOW NIL,
R/O. PLOT NO.249, 'GANDHA KUTI',
III STAGE RC NAGAR-590 003
BELAGAVI.

                                              ... APPELLANT
(BY SMT. SUNANDA P. PATIL, ADVOCATE)

AND:

1.     THE MANAGING DIRECTOR
       VRL LOGISTICS LTD REGISTERED AND
       ADMINISTRATION OFFICE,
       BENGALURU ROAD, VARUR,
       HUBBALLI, ARALIKATTI-581 207
       (OWNER OF VRL BUS
       NO.KA-25/D-4504)

2.     THE NEW INDIA ASSURANCE COMPANY
       LIMITED II FLOOR, SRINATH COMPLEX,
       NEW COTTON MARKET, HUBBALLI,
       REPRESENTED BY ITS,
       DIVISIONAL MANAGER,
       DIVISIONAL OFFICE,
       CLUB ROAD, BELAGAVI-590 001.
       (POLICY NO.67070031120100006076
                                 -2-




                                           MFA No. 101056 of 2015



      VALID FROM 26.12.2012 TO 25.12.2013
      INSURER OF VRL BUS
      NO.KA-25/D-4504)
                                                   ... RESPONDENTS

(BY SRI. HANUMANTHAREDDY SAHUKAR, ADV. FOR R1;
 SRI. M. Y. KATAGI, ADV. FOR R2)


      THIS APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED
29.01.2015 PASSED IN MVC NO.2466/2013 ON THE FILE OF THE IV
ADDITIONAL    DISTRICT   AND    SESSIONS   JUDGE    AND   MEMBER,
MOTOR      ACCIDENT    CLAIMS   TRIBUNAL-V,   BELAGAVI,    PARTLY
ALLOWING THE CLAIM PETITOIN FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.


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


                           JUDGMENT

The fact that an accident occurred on 01.09.2013 is not

in dispute. The fact that the offending vehicle was insured is

also not in dispute.

2. The Tribunal came to the conclusion that since the

doctor who has treated the claimant has not been examined,

the medical expert's opinion rendered before the Tribunal could

MFA No. 101056 of 2015

not be taken into consideration and it consequentially refused

to award any sum towards loss of future expenses.

3. The Tribunal, however, awarded the following sum;

Pain and sufferings                      Rs.20,000/-

Loss of amenities                        Rs.10,000/-

Medical expenses                         Rs.15,000/-

Food and nourishment                     Rs.10,000/-

Conveyance & other sundry expenses       Rs.10,000/-

Total                                   Rs.65,000/-

4. This Court by an order dated 16.01.2020 referred

the claimant to the Medical Board to be constituted by the

Medical Superintendent, BIMS Hospital, Belagavi and directed

that the claimant submit himself for medical examination. The

Board was conducted the examination and issued a certificate

regarding his physical disability.

5. Pursuant to the said order, the claimant appeared

before the Medical Board and was examined by the doctor Shri.

M. N. Patil, an Orthopedic Surgeon. The Orthopedic Surgeon

has given an opinion that the claimant has suffered L1 fracture

without neuro deficit and has 20% disability. The said opinion

MFA No. 101056 of 2015

of Orthopedic Surgeon is certified by the Medical Board

comprising of three doctors. It is therefore clear that as per the

report, the claimant has suffered disability to the extent of

20%.

6. The learned counsel for the Insurance Company

contended that the extent of compression in L1 and L2 has not

been mentioned and only if compression was larger than 25% a

person could be said to be suffering from disability. He also

contended that since the claimant admits that he has not lost

his job, there cannot be any loss of ability at all.

7. As stated above, the Medical Board comprising of

three doctors had come to the conclusion that as per the report

of Orthopedic Surgeon the claimant has suffered disability to

the extent of 20% as a result of fracture to L1. The wound

certificate that was produced at Ex.P.3 before the Tribunal,

reads as follows;

"Wedge compression # at L1 vertebral body redropulsion of # fragments causing compression on arachraid space # L2 vertebral body. L1 & L2, vertebral bodies suggestive of vedema and contusion."

MFA No. 101056 of 2015

8. These two documents establish that the claimant

has suffered a wedge compression at fracture of L1 and L2

vertebra of spine. Though the doctor who has treated was not

examined, nevertheless, the Orthopedic Surgeon who was

examined did come to the conclusion that the claimant has

suffered 20% disability.

9. This doctor has not been cross examined by the

Insurance Company regarding the extent of disability due to

the wedge compression at fracture of L1 and L2. In my view,

having regard to the fact that the Medical Board constituted as

per the directions of this Court has opined that the claimant has

suffered 25% disability, it would be appropriate to accept the

same.

10. The claimant was working as a Mechanical

Engineer. According to the evidence adduced by the Tribunal,

he was earning Rs.25,000/- per month. In my view, the

injuries that he has suffered and consequential disability may

not be sufficient to debilitate the claimant but it has definitely

caused disability to the extent of at least 5% and therefore, I

MFA No. 101056 of 2015

am of the view that the claimant would be entitled for loss of

future earnings at 5% of his income.

11. As stated above, the claimant was earning

Rs.25,000/- per month. The claimant being aged 46 years, a

multiplier of 13 would have to be applied. Consequently, the

claimant would be entitled to a sum of Rs. Rs.1,95,000/- (i.e.

Rs.25,000X12X13X5%) towards loss of future income.

12. The Tribunal has awarded only a sum of

Rs.25,000/- towards pain and suffering. In my view having

regard to the fact that the claimant has suffered fracture of L1,

he would therefore be entitled to a sum of Rs.75,000/- towards

pain and suffering.

13. The claimant has awarded Rs.10,000/- towards

amenities. In my view having regard to the nature of injury, he

would be entitled to a sum of Rs.15,000/- towards loss of

amenities.

14. The Medical expenses awarded by the Tribunal,

based on documentary evidence, is confirmed.

MFA No. 101056 of 2015

15. A sum of Rs.20,000/- awarded by Tribunal towards

food and nourishment, conveyance and other sundry expenses

are modified to Rs.30,000/-.

16. The claimant would also be entitled to loss of

income for the laid-up period which would be a period of 45

days. Having regard to the fact that the claimant has suffered

L1 fracture, he would therefore be entitled to a sum of

Rs.37,500/- towards loss of income during the laid-up period.

17. Hence, the claimant is entitled to the modified

award which reads as under:

      Sl.             Heads              Modified Award
      No.
       1    Loss of future income          Rs.1,95,000/-
            25,000X12X13X5%)
       2    Loss of income during the        Rs.37,500/-
            laid-up period
       3    Pain and sufferings              Rs.75,000/-
       4    Loss of amenities                Rs.15,000/-
       5    Medical expenses                 Rs.15,000/-
       6    Food and nourishment             Rs.15,000/-
       7    Conveyance & other sundry        Rs.15,000/-
            expenses
                     Total               Rs.3,67,500/-





                                                   MFA No. 101056 of 2015



     18.    Thus,    the    claimants        are     entitled    for   total

compensation    of   Rs.3,67,500/-      as     against     the    sum    of

Rs.65,000/- awarded by the Tribunal with interest at the rate of

6% per annum from the date of claim petition till the date of

deposit.

19. In view of the above, I pass the following:

ORDER

(i) The appeal is allowed in part,

(ii) The Judgment and Award dated

29.01.2015 passed in MVC

No.2466/2013, on the file of the IV

Additional District and Sessions Judge

and Member MACT-V, Belagavi, is

hereby modified. The claimant is entitled