Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1392 (KAR)

Ashok Kunder v. Vasantha Naika

2019-06-24

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Heard the learned counsel for the appellant and the learned counsel for respondent No.3. Perused the records. 2. Though the matter is listed for admission, with the consent of the learned counsel for both the parties, the matter is taken up for final disposal. 3. This appeal is directed against the judgment and award rendered by the Court below in MVC No.1087/2011 dated 26.12.2012, whereby awarded compensation in a sum of Rs.6,30,000/- with interest at the rate of 6%p.a. The compensation awarded by the Tribunal is inadequate and also on the lower side, hence, seeking enhancement of compensation the appellant/claimant, who is the petitioner before the Tribunal, has filed this appeal. 4. It is evident from the claim petition that on 19.06.2011 at about 11.00 a.m., near Dasarabettu over Shiriyara Bannerukatte Road, Udupi Taluk, the appellant/petitioner, who is said to be the injured, being the rider of Bajaj M-80 moped bearing Reg.No.KA-20/H- 7232, while proceeding from Shiriyara side towards Banneralukatte side, at the relevant point of time, the driver of Force Cargo King goods tempo bearing No.KA- 20-C-600, which is driven by its driver in a greater speed, hit on the two wheeler of the appellant/petitioner by which the accident was took place and the petitioner sustained injuries. The petitioner/injured was taken to the KMC Hospital, Manipal and took treatment as inpatient as well as outpatient. Due to the accidental injuries sustained by him, still he is not attending his work and lost the income to eke out his life. The petitioner/injured is not in a position to do any work as he sustained permanent disability and lost the future earning capacity. 5. After service of notice in the claim petition, respondent Nos.1 and 2 did not participate in the proceedings, but respondent No.3 has appeared through its counsel and filed objections in detail resisting the claim petition. Among other grounds, it is contended that the accident occurred due to the negligence on the part of the petitioner. Hence, sought for rejection of the claim petition made by the petitioner. 6. Based upon the pleadings, the Tribunal framed the issues. In order to substantiate his claim, petitioner has examined himself as PW.1 and got marked the documents as per Exs.P1 to P20. The doctor, who treated the petitioner/injured, has been examined as P.W.3. Hence, sought for rejection of the claim petition made by the petitioner. 6. Based upon the pleadings, the Tribunal framed the issues. In order to substantiate his claim, petitioner has examined himself as PW.1 and got marked the documents as per Exs.P1 to P20. The doctor, who treated the petitioner/injured, has been examined as P.W.3. On the other hand, the respondents neither examined any witness nor produced any documents. The Tribunal, after hearing the learned counsel for the parties and after evaluation of the oral and documentary evidence, has held that the accident has occurred due to rash and negligence of the driver of the offending vehicle and consequently awarded total compensation of Rs.6,30,000/- (Rupees Six Lakh Thirty Thousand only) with interest at 6% per annum on Rs.5,00,000/- (excluding future attendant's charges) from the date of petition till payment. 7. The learned counsel for the appellant has vehemently submitted that in the evidence of P.W.3-an Orthopedic Surgeon, who treated the petitioner/injured, has deposed that on examination of the injured, he found the injuries on the person of the injured viz., traumatic amputation of right index finger at the level of middle phalanx (grievous); 4 X 4 c.m. abrasion over right shoulder; 1 X 2 X 0.5 c.m. laceration over right foot, multiple lacerations over face scalp, acromioclavicular joint dislocation right, Compression fracture of C3 vertebra, C2/3 dislocation with traumatic quadriparesis. Ex.P19 is the certificate of registration of fishing boat and Exs.P-13 and 14 are the certificates given by the MLA Kundapura under regarding the compensation of Rs.20,000/- under Chief Minister Relief Fund and submits that the Tribunal ought not to have deducted the said amount while awarding compensation. He further submits that the Tribunal erred in assessing the income of the injured at Rs.5,000/- per month, which is on the lower side. He has submitted that Ex.P19 Certificate of registration of fishing boat, and submitted that the injured was having earning capacity of Rs.15,000/- per month and because of this accidental injuries, the injured lost his earning capacity. Hence, the same requires to be enhanced in this appeal. He further submits that insofar as the future loss of income or loss of future earning capacity, the Tribunal has awarded a sum of Rs.2,70,000/-, which is inadequate, and same requires to be enhanced. Hence, the same requires to be enhanced in this appeal. He further submits that insofar as the future loss of income or loss of future earning capacity, the Tribunal has awarded a sum of Rs.2,70,000/-, which is inadequate, and same requires to be enhanced. He also submits that the compensation awarded towards 'future attendant's charges' is also inadequate and on the lower side and prays for enhancement of compensation. 8. Per Contra, Sri S.V.Hegde Mulkhand, learned counsel appearing for respondent No.3/Insurance Company has submitted that an amount of Rs.20,000/-, which has already been awarded to the injured under the Chief Minister's Relief Fund, has rightly deducted by the Tribunal while awarding compensation. He also submitted that though the petitioner has suffered physical disability, the doctor, who has been examined as P.W.3 is an Orthopedic Surgeon, and when there is no specific evidence on the part of the claimant by examining a Neuro Surgeon with regard to the spinal dislocation suffered by the injured. Hence, the Tribunal has assessed by the disability at 30% and awarded the compensation. He further submits that the Tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not calls for interference and prays for dismissal of the appeal. 9. Heard the arguments of the learned counsel for the appellant and the learned counsel for respondent No.3. On careful evaluation of the material on record, it is seen that P.W.3-The Doctor, who treated the petitioner/injured is an Orthopedic Surgeon and he has specifically stated in his evidence that the petitioner injured has suffered loss of strength and power in his limbs. As per Schedule 1(2) of Workmen Compensation Act, the Tribunal has considered the injuries sustained by the petitioner and held that petitioner has sustained functional disability to the tune of 30%. In the present case, the petitioner has lost his little finger. It is relevant to note that P.W.3-The Doctor, has stated with regard to occupational assessment that the petitioner/claimant has sustained weakness of both upper limbs (right side more involved than left) and weakness of both lower limbs. In the present case, the petitioner has lost his little finger. It is relevant to note that P.W.3-The Doctor, has stated with regard to occupational assessment that the petitioner/claimant has sustained weakness of both upper limbs (right side more involved than left) and weakness of both lower limbs. He further deposed that he found certain disability with the petitioner-injured and opined that the petitioner has suffered permanent disability of 64% of locomotor function of the body and injured need assistance for all manual activities and activities of daily living and he has issued Ex.P-18 disability certificate in that regard. 10. P.W.3 Doctor has also deposed that the claimant requires bed rest for more than eight months, but the Tribunal has considered only for a period of six months, so also, taken the income at Rs.5,000/- per month, but there are some norms to be considered for calculating the notional income. There is no dispute relating to Ex.P-19 the certificate of registration of fishing boat. The claimant was working as a boat driver and having earning capacity of a sum of Rs.15,000/- per month. There is no dispute that the accident occurred on 19.06.2011 at about 11.00 a.m. Therefore, the income of the claimant has to be taken between Rs.5,500 to Rs.6,500/- per month as he being a driver of the boat. Therefore, it requires intervention of this Court, hence, it is just and proper to hold the income of the injured at Rs.6,500/- per month against Rs.5,000/- held by the Tribunal. 11. Keeping in view the evidence of P.W.1 and P.W.3, on which the entire claim petition is based, the Tribunal has held that there is functional disability to the tune of 30%. P.W.3 the Doctor, who treated the claimant/injured, has opined that the claimant has suffered permanent physical disability of 64% and he has issued the disability certificate as per Ex.P-18 to that extent. Therefore, the functional disability held by the Tribunal at 30% is improper. The claimant, being the driver of the boat, has lost strength in his limbs to continue his profession. Therefore, in view of the evidence of P.W.3 Doctor and the disability certificate Ex.P-18, it is just and proper to hold that the claimant has sustained disability of 50%. Therefore, the functional disability held by the Tribunal at 30% is improper. The claimant, being the driver of the boat, has lost strength in his limbs to continue his profession. Therefore, in view of the evidence of P.W.3 Doctor and the disability certificate Ex.P-18, it is just and proper to hold that the claimant has sustained disability of 50%. Thus, considering the monthly income of the claimant at Rs.6,500/-, the compensation under the head future loss of income or future loss of earning capacity is re-worked out as under: The claimant is entitled for Rs.5,85,000/- (Rs.6500 X 12 X 15 X 50%). 12. Considering the income of the claimant at Rs.6,500/- per month, the compensation under the head loss of income during laid up period is re-worked out and hence, is entitled for Rs.52,000/- (Rs.6500 X 8) under the as against Rs.30,000/- awarded by the Tribunal. 13. The claimant is aged 37 years when he met with the accident, he needs some attendant as he sustained with acromioclavicular joint dislocation. Therefore, it is just and proper to enhance the compensation towards future attendant's charges by Rs.25,000/-. 14. The Tribunal has considered Exs.P-13 and P- 14, the certificates issued by the MLA, Kundapura, wherein the claimant has received a sum of Rs.20,000/- under the Chief Minister's Relief Fund, and the Tribunal has deducted the same while awarding compensation towards medical expenses, conveyance, special diet, nourishment and attendant charges. However, keeping in view the Article 39A of the Constitution of India, these are the policy matters, hence, the sum of Rs.20,000/- has been given to the claimant for his life support system. Therefore, the sum of Rs.20,000/-, which is deducted by the Tribunal, is awarded towards medical expenses, conveyance, special diet, nourishment and attendant charges. The same has been considered in respect of the incidental charges. The compensation awarded by the Tribunal towards pain and agony and towards future loss of amenities in life is just and proper and does not call for interference by this Court. 15. The same has been considered in respect of the incidental charges. The compensation awarded by the Tribunal towards pain and agony and towards future loss of amenities in life is just and proper and does not call for interference by this Court. 15. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Compensation awarded under the heads By MACT By this Court Pain and agony 75,000 75,000 Medical expenses, conveyance, special diet, nourishment, and attendant charges 1,05,000 1,25,000 Loss of income during treatment period 30,000 52,000 Future loss of income or future loss of earning capacity 2,70,000 5,85,000 Future loss of amenities in life 50,000 50,000 Future attendant's charges 1,00,000 1,25,000 Total 6,30,000 10,12,000 16. Thus, in all, the claimant is entitled to total compensation of Rs.10,12,000/- as against Rs.6,30,000/- awarded by the tribunal. The enhanced compensation is Rs.3,82,000/-. 17. For the reasons and findings as stated above, I proceed to pass the following: ORDER The appeal is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.3,82,000/- with interest @ 6% p.a. from the date of petition, till realisation. Respondent No.3/The New India Assurance Co. Ltd., shall deposit the entire amount awarded by the Tribunal as well as the compensation enhanced by this Court, along with interest accrued, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be released in favour of the appellant/claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to rate of interest, apportionment and deposit is concerned, shall remain unaltered. The amount in deposit, if any, before this court, shall be transmitted to the concerned Tribunal along with the lower court records, forthwith. There shall be no order as to the costs. Office to draw the decree accordingly.