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2020 DIGILAW 1836 (KAR)

G. Divigihalli @ Guttevva @ Leela v. Mohammad Rafique

2020-09-23

P.S.DINESH KUMAR, S.VISHWAJITH SHETTY

body2020
JUDGMENT S. Vishwajith Shetty, J. - This appeal is filed by the claimant seeking enhancement of the compensation awarded by the Court of Senior Civil Judge and J.M.F.C., and Additional M.A.C.T., Hirekerur in M.V.C.No.107 of 2011 vide its Judgment and Award dated 30.09.2013. 2. We have heard the learned counsel for the appellant and the learned counsel for the respondent No.3- Insurer. 3. The brief facts of the case are, on 10.11.2008 at about 5.30 p.m. the claimant and her husband were going on their motorcycle bearing registration No.KA-15/K-1568 and when their motorcycle reached Hosalli cross, on Hirekerur-Tavargi road, one Auto Rickshaw bearing registration No.KA-17/9475 which was driven in a rash and negligent manner by its driver dashed against the motorcycle in which the claimant was a pillion rider and as a result, claimant suffered grievous injuries. The claimant was immediately shifted to the Government Hospital, Hirekerur and then to S.S.I. Hospital, Davanagere, wherein she took treatment as inpatient. The claimant was working as a Conductor in N.W.K.R.T.C. at the time of accident. The claimant suffered following injuries in the accident: "1. Fracture of lower 1/3rd of humorous at lower end of the radius and fracture of stolid process with dislocation of wrist joint. 2. Injury to brain." 4. The claimant had filed the instant claim petition before the Tribunal seeking compensation of Rs.39,20,000/- with interest. The Tribunal by means of impugned Judgment and Award has awarded compensation of Rs.3,90,270/- with interest at the rate of 6% per annum from the date of petition, till its realization. Being not satisfied with the quantum of compensation, claimant has preferred this appeal. 5. The learned counsel appearing for the claimant contended that the claimant had suffered permanent physical disability to the extent of 70% and P.W.2 the Doctor who has issued the disability certificate has deposed to the said effect. He submitted that the Tribunal was not justified in awarding global compensation of Rs.1,50,000/- towards loss of future earning capacity. He also submitted that due to the disability suffered by her, claimant had to discontinue her job and even this aspect has not been appreciated by the Tribunal. He submitted that even on other heads, the Tribunal has awarded a meagre compensation that requires enhancement and therefore, he prayed to allow this appeal. 6. He also submitted that due to the disability suffered by her, claimant had to discontinue her job and even this aspect has not been appreciated by the Tribunal. He submitted that even on other heads, the Tribunal has awarded a meagre compensation that requires enhancement and therefore, he prayed to allow this appeal. 6. On the other hand, the learned counsel appearing for the respondent No.3-Insurer submitted that the claimant has not suffered any permanent disability which effected her working capacity. He submitted that even during the period of treatment, the claimant had received her salary and subsequent to the accident, for a period of nearly 5 years the claimant had continued to work as conductor in N.W.K.R.T.C. and thereafter she has taken voluntary retirement on 15.07.2013 and therefore she is not entitled for any compensation towards loss of future earning capacity. He also submitted that the Doctor P.W-2 has not treated the claimant and therefore the disability assessed by him cannot be taken into consideration. He submitted that the compensation awarded by the Tribunal is on the higher side and therefore prays to dismiss the appeal. 7. We have considered the rival contentions of the parties and also perused the material evidence available on record. The claimant was aged about 32 years at the time of accident which occurred on 10.11.2008. The claimant continued in the services of N.W.K.R.T.C. till 15.07.2013, the date on which her request for voluntary retirement was accepted by her employer. Ex.P.41 dated 15.07.2013, states that claimant's application for voluntary retirement was considered favorably and she was entitled for additional financial benefits. The very fact that the claimant continued to work as a Conductor in the N.W.K.R.T.C. till her request for voluntary retirement was considered on 15.07.2013 would go to show that the injuries or the disability suffered by the claimant did not affect her working capacity. 8. It is not the case of the claimant that she was not paid salary during the laid up period or there was any deduction in the payment at any point of time till she voluntarily retired from the service. Further, claimant has failed to examine the Doctor who has treated her. P.W.2- Doctor who has issued the disability certificate, admittedly, has not treated the claimant. Further, claimant has failed to examine the Doctor who has treated her. P.W.2- Doctor who has issued the disability certificate, admittedly, has not treated the claimant. Further, the disability certificate assessing disability at 70% appears to have been issued without proper verification of the medical records including treatment undergone by the claimant. Thus, the disability assessed by the Doctor, when compared with the injuries suffered by claimant, prima-facie appears to be on higher side. However, the fact remains, the disability caused to the claimant has not effected her working capacity and therefore we are of the considered view that the claimant is not entitled for any compensation for loss of income during the laid up period or towards loss of future earning capacity. 9. The claimant was admitted in the hospital and treated as inpatient for about 65 days. From the medical records, it is evident that she has undergone surgery. Having regard to the prolonged treatment undergone by the claimant, we deem it proper to award a compensation of Rs.1,00,000/- to the claimant towards pain and sufferings. The claimant has produced medical bills at Ex.P.18 to the tune of Rs.1,30,270/- and the claimant is entitled for the said amount towards medical expenses. Towards loss of amenities, the Tribunal has not awarded any compensation and we deem it proper to award a sum of Rs.1,00,000/- under the said head. Towards incidental expenses, the Tribunal has awarded a sum of Rs.30,000/- and the same is unaltered. Therefore, on reassessment the claimant is entitled for compensation as follows : Sl. No. Heads Amount 1. Towards pain and sufferings. Rs.1,00,000/- 2. Towards medical expenses. Rs.1,30,270/- 3. Towards loss of amenities. Rs.1,00,000/- 4. Towards incidental charges. Rs.30,000/- Total Rs.3,60,270/- The Tribunal has awarded a compensation of Rs.3,90,270/- which is more than the compensation to which the claimant is entitled. Therefore, this appeal filed by the claimant seeking enhancement of the compensation does not merit consideration and accordingly, the same is dismissed. No costs.