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2025 DIGILAW 642 (KAR)

Jalaja W/o Venkatesh v. Sandesh S/o Rajagopal

2025-06-30

C.M.JOSHI

body2025
JUDGMENT : C M JOSHI, J. Being aggrieved by the judgment and award in MVC No.826/2012 dated 13.12.2013 passed by the Principal Senior Civil Judge and Additional MACT, Udupi, the petitioner/appellant is before this Court seeking enhancement of compensation. 2. The factual matrix of the case is that, on 30.07.2012 the petitioner was traveling as a pillion rider on two wheeler bearing No. KA.20.W.8245, to her house at Nitoor at 4.30 p.m., near Manjunatha Eye Hospital, Bannanje, a tempo bearing No.KA.19.C.665 came in a rash and negligent manner and dashed to the said two wheeler, resulting in petitioner sustaining injuries. She was shifted to Hi Tech Hospital, Udupi, where she was inpatient for more than 56 days. It was contended that the petitioner was aged about 58 years and was working as a coolie and as such, she has suffered the disability and she may be awarded adequate compensation. 3. The petition was opposed by 3 rd respondent, Insurance Company of the tempo contending that the compensation claimed is highly exorbitant, imaginary and untenable in law. The age, occupation and income of the petitioner is denied. The Insurance Company also contended that there were violations of the terms and conditions of the policy and as such, it is not liable to pay the compensation. 4. The Tribunal framed appropriate issues. The petitioner was examined as PW1. The Doctor who assessed the disability was examined as PW2 and Exhibits P1 to P14 were marked in the evidence. No evidence was led on behalf of the respondents. 5. After hearing the arguments, the Tribunal awarded the compensation of Rs.2,57,500/- under the following heads: P ain and agony Rs. 45,000/- Medical expenses Rs.1,52,500/- Nourishment Rs. 5,000/- Conveyance Rs. 2,000/- Attendant Rs. 6,000/- Loss of income during treatment period Rs. 12,000/- Disability Rs. 25,000/- Loss of amenities Rs. 10,000/- Total Rs.2,57,500/- 6. Being aggrieved by the same, the petitioner is before this Court in appeal. 7. On issuance of notice, respondent No.3, Insurance Company has appeared before this Court through its counsel. Respondent Nos.1 and 2 despite service of notice, did not appear. 8. The arguments by learned counsel for appellant and learned counsel for respondent No.3 were heard. 9. Being aggrieved by the same, the petitioner is before this Court in appeal. 7. On issuance of notice, respondent No.3, Insurance Company has appeared before this Court through its counsel. Respondent Nos.1 and 2 despite service of notice, did not appear. 8. The arguments by learned counsel for appellant and learned counsel for respondent No.3 were heard. 9. The learned counsel for the petitioner/appellant submits that the petitioner was aged about 58 years and she was working as a coolie and she has suffered the injuries like degloving injury to the left foot, pericranial haematoma to right frontal region, dislocation in the left foot, auto amputation of 5 th toe of left foot, tarso metatarsal joint dislocation of left foot. Apart from that, there was also a fracture of proximal humerus of left upper limb. It was contended that the petitioner was inpatient for about 56 days and she underwent surgeries with K wire fixation and second toe of the foot was disarticulated which has resulted in a gait. The other fractures were treated with ORIF and therefore, the compensation awarded by the Tribunal is on the lower side. He further contended that the disability assessed by the Tribunal is also incorrect and therefore, there is a need for reassessment of the compensation. 10. Per contra, learned counsel for respondent No.3, Insurance Company would submit that the compensation awarded by the Tribunal is just and proper and there is no need for reassessment of the same. 11. A perusal of the records would show that the petitioner while was a pillion rider along with her husband as a rider suffered an accident resulting in the above mentioned injuries. The Wound Certificate and the other medical records at Exs.P4 P10 and P13 clearly depict the nature of the injuries suffered by her. The left lower limb of the petitioner has suffered disablement. It is pertinent to note that the disarticulation of one of the toe and the auto amputation of the 5 th toe definitely causes hindrance to her resulting in gait and affects her functions as a coolie. At the age of 58, such injury has to be appreciated by the Court. On a careful perusal of these records, it is evident that the disability is not properly appreciated by the Tribunal. At the age of 58, such injury has to be appreciated by the Court. On a careful perusal of these records, it is evident that the disability is not properly appreciated by the Tribunal. Even though it did not consider the disability stated by PW2, it awards a sum of Rs.25,000/- towards disability. There is no logic on which the Tribunal has come to the conclusion that a sum of Rs.25,000/- has to be awarded. Considering the testimony of PW2, it is evident that there is physical disability of 34%. The functional disability could not have been stated by the Medical Officer and as such, the disability stated by him is considered to be the functional disability. Under these circumstances, there being no additional material to show the avocation of the petitioner, except that she was a house wife as well as a coolie worker, the functional disability is considered by this Court at 12%. 12. The petitioner, in her testimony has stated that she was earning Rs.5,000/- per month. Therefore, on the basis of her own testimony, the notional income of the petitioner is considered at Rs.5,000/- per month. There is no dispute about her age and therefore, the compensation under the head of loss of future income due to disability is calculated as: Rs.5,000/- x 12 x 11x 12% = 79,200/-. 13. Considering the nature of the injuries suffered by the petitioner it can safely be said that she was unable to resume her work for a period of five months. Therefore, a sum of Rs.25,000/- (Rs.5,000/- x 5) is awarded towards loss of income during he laid up period. 14. The Tribunal has awarded a sum of Rs.2,000/-under the head of conveyance, Rs.5,000/- under the head of food and nourishment and Rs.6,000/- under the head of attendant charges. Considering the fact that she was inpatient for a period of 56 days, it would be just and proper to award a sum of Rs.25,000/- covering all these heads. 15. The Tribunal has awarded a sum of Rs.45,000/-under the head of pain and suffering and the same needs to be enhanced to Rs.60,000/-. 16. The Tribunal has awarded a sum of Rs.10,000/-under the head of loss of amenities in life. Considering the amputation of 3rd and 5th toe, it would be appropriate to award a sum of Rs.35,000/- under this head. 16. The Tribunal has awarded a sum of Rs.10,000/-under the head of loss of amenities in life. Considering the amputation of 3rd and 5th toe, it would be appropriate to award a sum of Rs.35,000/- under this head. However, a sum of Rs.1,52,500/- awarded by the Tribunal towards medical expenses is just and proper and therefore, it need not be interfered with. 17. Therefore, the petitioner is entitled for a modified compensation of Rs.3,76,700/- under the following heads: Pain and agony Rs. 60,000/- Medical expenses Rs.1,52,500/- Nourishment, conveyance, attendant charges Rs. 25,000/- Loss of income during treatment period Rs. 25,000/- Loss of future income due to disability Rs. 79,200/- Loss of amenities Rs. 35,000/- Total Less: awarded by the Tribunal Enhancement Rs.3,76,700 Rs.2,57,500/- Rs.1,19,200/- 18. In the result, the appeal deserves to be allowed in part. Hence, the following: ORDER (i) The appeal is allowed in part. (ii) The impugned judgment and award passed by the Tribunal is modified. The petitioner is entitled for a sum of Rs.1,19,200/- in addition to what has been awarded by the Tribunal together with interest at 6% p.a. from the date of petition till its realization. (iii) The Insurance Company is directed to deposit the compensation amount with interest within a period of eight weeks from the date of this judgment. (iv) The rest of the order of the Tribunal remains unaltered.