Karnataka High Court
Mariswamy @ Mariyappa vs The Managing Director on 14 October, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.8961 OF 2015 (MV-I)
BETWEEN
MARISWAMY @ MARIYAPPA
S/O. NANJAIAH,
HINDU,
NOW AGED ABOUT 58 YEARS,
R/AT NANJAREDDY BUILDING,
NERALURU VILLAGE,
ATTIBELE HOBLI,
ANEKAL TALUK,
BANGALORE URBAN DISTRICT.
...APPELLANT
(BY SRI: N. MADHUSUDHAN, ADVOCATE FOR
SRI. T.C. SATHISH KUMAR, ADVOCATE)
AND
THE MANAGING DIRECTOR
TAMIL NADU STATE TRANSPORT CORPN.
BHARATHIPURAM,
SALEM MAIN ROAD,
DHARMAPURI-5,
TAMIL NADU STATE.
... RESPONDENT
(BY SRI: BOPANNA.B. FOR BPDS ASSOCIATES, ADVOCATE)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 04.09.2015
PASSED IN MVC NO. 2061/2014 ON THE FILE OF THE XIX
ADDITIONAL SMALL CAUSE JUDGE & MACT, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard the learned counsel for the appellant and
learned counsel for the respondent.
2. This appeal is filed challenging the judgment and
award dated 04.09.2015 passed in M.V.C.No.2061/2014 on the
file of XIX Additional Senior Civil Judge and MACT, Bengaluru
('the Tribunal' for short).
3. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
4. The factual matrix of the case of the claimant is that
the injured met with an accident on 24.06.2013 at about 8.00
a.m. As a result of which, he sustained fracture injuries to the
left humerus and ribs. Immediately, he was shifted to the
Government Hospital, Hosur and from there, he was shifted to
Sparsh Hospital, Bangalore and subsequently, he was shifted to
LIVE 100 Hospital, Bangalore wherein he was an inpatient. In
order to prove his income, he has stated that he was working as
a security guard and also working as vegetable vendor and
earning Rs.8,000/- as wages and Rs.6,000/- from vegetable
vending. The claimant in order to substantiate his claim, he
examined himself as PW-1 and also examined the doctor as PW-
2. The doctor assessed the disability to the extent of 27.72% to
the left upper limb and assessed the whole body disability at
9.24%.
5. It is the contention of the learned counsel appearing
for the appellant that the Tribunal while awarding compensation
under the head of loss of income and disability, taken the
monthly income of the claimant at Rs.6,000/- and erroneously
taken the multiplier as '5' instead of '7'. The learned counsel
also submits that the doctor-PW-2 has categorically deposed that
the claimant is required to undergo one more surgery for
removal of implants. The estimated cost of surgery is
Rs.30,000/-. No compensation is awarded under the said head.
The Tribunal has also not awarded any compensation towards
loss of amenities. Hence, he submits that interference is called
for.
6. Per contra, the learned counsel appearing for
respondent submits that immediately after the accident, he was
taken to the Government Hospital wherein his age was
mentioned as 70 years. Hence, the Tribunal has rightly taken
the multiplier as '5' and hence the very contention of the learned
counsel for the appellant that the multiplier '5' applied
erroneously cannot be accepted. The learned counsel also
submitted that the Tribunal taking note of the age of the
claimant awarded just and reasonable compensation on all the
heads and no interference is called for.
7. Having heard respective counsel and also on perusal
of the material available on record, the claimant has suffered
fracture injury to the left humerus and also fracture injury to ribs
and the Tribunal having considered that it was the accident of
the year 2013 and the compensation awarded under the head of
pain and suffering at Rs.55,000/- is just and reasonable.
8. The Tribunal based on documentary evidence has
awarded compensation of Rs.7,342/- towards medical expenses
which does not require any interference.
9. However, the Tribunal has committed an error in
taking the income of the claimant at Rs.6,000/-. It is the
accident of the year 2013 and in the absence of the
documentary evidence, the Tribunal ought to have taken the
notional income at Rs.8,000/- per month as against Rs.6,000/-
and having taken the income of the claimant at Rs.8,000/- and
having considering the nature of fractures to the ribs and left
humerus, he requires three months for recovery and hence, it is
just and proper to award an amount of Rs.24,000/- as against
12,000/- towards loss of income.
10. The Tribunal awarded compensation of Rs.33,264/-
under the head of disability by taking income of 6,000/- and the
multiplier '5'. On perusal of records, though he went and took
treatment in Government Hospital Hosur, the injured was shifted
by the general public wherein his age was mentioned as 70
years and immediately on the very same day, he was shifted to
Live 100 Hospital wherein the age is mentioned as 60 years and
in the wound certificate, the age is mentioned as 65 years and
hence, the Court has to take note of age as 65 years. Having
considered the same, the multiplier would be '7'. Hence, the
loss of future earning capacity comes to Rs.62,093/- (Rs.8,000 x
12 x 7 x 9.24% = 62,093/-) as against 33,264/-.
11. The records also reveals that he was subjected to
surgery in respect of fracture of humerus and implants are in
situ and the doctor has also deposed that the claimant requires
one more surgery for removal of implants and hence, it is
appropriate to award an amount of Rs.15,000/- towards removal
of implants under the head of future medical expenses.
12. The Tribunal has awarded a sum of Rs.10,000/-
towards food and nourishment and also attendant charges of
Rs.6,000/- and he was inpatient for 16 days. Hence, the same
does not require any interference.
13. However, the Tribunal has not awarded any
compensation under the head of loss of amenities. Having
considered the age of the claimant as 65 years, it is appropriate
to award an amount of Rs.15,000/- towards loss of amenities.
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 04.09.2015 passed in
M.V.C.No.2061/2014 is modified granting
compensation of Rs.1,94,435/- as against
Rs.1,23,606/- with interest at 6% per annum
from the date of petition till deposit.
(iii) The respondent - Corporation 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.
(v) In all other respects, the order of the Tribunal
remains undisturbed.
Sd/-
JUDGE
Prs*
