Karnataka High Court
Sri K Surya Kumar vs E K Kumar on 16 November, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.6715/2014 (MV-I)
BETWEEN:
SRI K. SURYA KUMAR,
S/O B. KANNAN,
AGED ABOUT 22 YEARS,
RESIDING AT NO.28-950/9,
DHARAMARAJ COLONY,
WARD NO.28, CHITTOOR TOWN,
ANDHRA PRADESH. ...APPELLANT
(BY SRI GOPAL KRISHNA N, ADVOCATE)
AND:
1. E.K. KUMAR,
S/O E.P.NAIDU,
MAJOR IN AGE,
RESIDING AT NO.002,
1ST BLOCK, SLV MANOR,
HRBR LAYOUT, KALYAN NAGAR,
BANGALORE-560043.
2. IFFCO-TOKIO GENERAL
INSURNCE COMPANY LTD.,
SRI SHANTHI TOWERS,
5TH FLOOR, NO.141, 3RD MAIN,
EAST OF NGEF LAYOUT,
KASTURI NAGAR,
BANGALORE-560043. ...RESPONDENTS
(BY SRI D.S. SRIDHAR, ADVOCATE FOR R2,
VIDE ORDER DATED 20.08.2015,
NOTICE TO R1 IS DISPENSED WITH)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 21.04.2014 PASSED
IN MVC NO.7811/2012 ON THE FILE OF THE VIII ADDITIONAL
SMALL CAUSE JUDGE, & XXXIII ACMM, MEMBER, MACT,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for admission today, with the
consent of both the learned counsel it is taken up for final
disposal.
2. Heard the learned counsel for the appellant and the
learned counsel for respondent No.2.
3. This appeal is filed challenging the judgment and
award dated 21.04.2014, passed in M.V.C.No.7811/2012, on the
file of the VIII Additional Small Cause Judge and XXXIII ACMM,
Member, MACT, Bengaluru ('the Tribunal' for short) questioning
the quantum of compensation.
4. The main contention of the learned counsel for the
appellant is that he had suffered type III A open (compound)
fracture of both bones of right leg and also fracture of both
bones of left leg and fat embolism and the doctor assessed the
disability of 27% to the whole body. The learned counsel
submits that the Tribunal has not awarded any amount under
the head loss of future income on the ground that fractures are
united as observed in paragraph No.12 and the said approach is
erroneous and failed to award just and reasonable
compensation. The learned counsel submits that the
compensation awarded under other heads are also meagre and
hence it requires interference of this Court.
5. Per contra, the learned counsel for respondent No.2
submits that the Tribunal awarded an amount of Rs.1,00,000/-
under the head pain and suffering and also awarded an amount
of Rs.1,50,000/- towards medical expenses. In all, an amount of
Rs.3,55,000/- is awarded and the same is just and reasonable
compensation.
6. Having heard the respective learned counsel and also
on perusal of the material available on record, the wound
certificate, which is marked as Ex.P.4 discloses that he had
suffered type III A open (compound) fracture of both bones of
right leg and also fracture of both bones of left leg and fat
embolism and he was an inpatient in the hospital for a period of
23 days and Ex.P.5 discharge summary is also placed before the
Court. In support of his contention, he examined the doctor as
P.W.2, who assessed the disability of 27% and the Tribunal has
not considered the disability and not awarded any amount under
the head future loss of income. When such being the case, the
disability assessed by the doctor at 27% is not on the higher
side. However, the Tribunal committed an error in observing in
paragraph No.12 that the fracture was united and not considered
the disability and hence it requires interference of this Court.
7. An amount of Rs.1,00,000/- awarded under the head
pain and suffering is on the higher side and having considered
the fracture, it is appropriate to reduce the compensation to
Rs.75,000/- under the head pain and suffering.
8. The Tribunal awarded an amount of Rs.1,50,000/-
considering the medical bills and in the cross-examination, he
admits that he has paid Rs.52,274/- and the remaining amount
to be paid and for having paid the remaining amount also, no
documents are placed before the Court. However, considering
the medical bills, the Tribunal awarded an amount of
Rs.1,50,000/- and the same does not require any interference
of this Court.
9. It is also the contention of the claimant that he has
to undergo one more surgery and to that effect he requires
Rs.25,000/- and the Tribunal not considered the same, instead
of awarded compensation of Rs.50,000/- under the head loss
of amenities and I do not find any ground to interfere with the
same in view of the nature of fracture he has sustained.
10. The Tribunal has not awarded any compensation
under the head future loss of income. Taking the income of
Rs.7,000/- per month and taking the disability of 27% as
assessed by the doctor and applying the relevant multiplier of
'18' as he is aged about 20 years and in view of judgment in the
case of ERUDHAYA PRIYA v. STATE EXPRESS TRANSPORT
CORPORATION LTD. reported in 2020 SCC Online SC 601,
future prospects of 40% has to be added to the monthly income
to assess the future loss of income. Having added the same, it
comes to Rs.9,800/- and the future loss of income comes to
Rs.5,71,536/- (Rs.9,800/- x 12 x 18 x 27%).
11. The Tribunal awarded an amount of Rs.30,000/-
under the head loss of income during the laid up period.
Considering the fracture of both bones, it requires minimum six
months for uniting of fracture and rest. Taking the income of
Rs.7,000/- per month, the loss of income during the laid up
period comes to Rs.42,000/- (Rs.7,000/- x 6) as against
Rs.30,000/-.
12. The Tribunal awarded an amount of Rs.25,000/-
under the head future medical expenses and the same is
retained.
13. In all, the claimant is entitled for compensation of
Rs.9,13,536/- as against Rs.3,55,000/-.
14. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 21.04.2014, passed in
M.V.C.No.7811/2012, is modified granting
compensation of Rs.9,13,536/- as against
Rs.3,55,000/- with interest at 8% per annum
from the date of petition till deposit.
(iii) The Insurance Company is directed to pay the
compensation amount with interest within six
weeks from today.
(iv) The Registry is directed to transmit the records
to the concerned Tribunal, forthwith.
Sd/-
JUDGE
MD
