IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE L NARAYANA SWAMY AND THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR M.F.A. NO.2889 OF 2013 (MV) BETWEEN:
MR DUGGA NAIK S/O LATE SIDDA NAIK AGED ABOUT 42 YEARS R/A 19B, KSRTC QUARTERS KIADB, BAIKAMPADY MANGALORE 11. …APPELLANT (BY SRI. SANDESH SHETTY.T., ADVOCATE) AND:
1. U K KHADER S/O U.K. BAVA AGED ABOUT 42 YEARS PARTNER, EVER GREEN SUPPLIES 5TH FLOOR, RAM BHAVAN SUPPLIES MANGALORE.
2. THE NEW INDIA ASSURANCE COMPANY LTD. II FLOOR, RAM BHAVAN COMPLEX KODIAL BAIL POST MANGALORE-575003. ...RESPONDENTS (BY SRI. K N SRINIVASA, ADVOCATE FOR R2 , NOTICE TO R-1 DISPENSED WITH ) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION U/S 173(1) OF MV ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED:18.07.2012 PASSED IN MVC NO.1438/2009 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, MANGALORE, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the claimant for enhancement of compensation for having suffered grievous injury on 28.02.2009. Having considered the case of both the parties the Tribunal has awarded a compensation of Rs.1,16,200/- against which this appeal for enhancement of compensation is filed.
2. The appellant who was the petitioner was working as a driver in KSRTC since 2000. On 28.02.2009 when he left his house situated at KSRTC Depot quarters situated at Mangaluru for joining the duty in a motorcycle bearing registration No.KA-19W- 2387 slowly on National Highway No.17, when he reached M.C.F. Tollgate, Panambur, a lorry bearing registration No.KA-19B-9044 driven by its driver in a rash and negligent manner caused the accident resulting in grievous injuries. As per the Wound Certificate – Ex.P12 dated 16.03.2009 issued by the hospital where he was got admitted discloses that he suffered fracture of left clavicle, sub total amputation of left lower limb at the lever of the knee. The amputated part is attached only with tags of skin at back aspect, exposing the fractured upper ends of tibia and fibula.
3. The complainant has examined himself as PW.1. PW.2 is another independent witness and PWs.3 and 5 are the doctors wherein PW.4 is another eye witness and the documents also got marked at EXs.P.1 to P.34 which are the police documents, discharge summary, disability certificate, etc.,.
4. Learned counsel for the appellant submits that the compensation awarded is very meager and putting 25% on negligence also is arbitrary. Since it has not been supported by any piece of evidence the compensation awarded after excluding medical expenses which would come to only Rs.63,000/- is very meager compared to the nature of injuries.
5. Learned counsel for the respondent – Insurance Company supports the impugned judgement and prays for dismissal of this appeal. It is his submission that though he has suffered amputation he is placed with alternate job and there is no financial loss. Accordingly with reference to the nature of injuries the compensation awarded is sound and proper and prays for dismissal of this appeal.
6. We have heard the learned counsel for both the parties and gone through the evidence and the submission of the claimant with reference to EX.P.12 that the injured has suffered an amputation which has to be cross checked with EX.P.14 which says that “ on examination fracture has not united with shortening of left lower limb 3 cms.” which itself shows that the fracture has been united, but it has been shortened by 3 cms. Then the submission of the appellant that he has suffered amputation cannot be accepted. Be that as it may, when EX.P.12 discloses that the injured has suffered grievous injury and it is further stated that he has suffered amputations and attached with tagged skin, it shows that he must have been given treatment and dislocation of the amputation has been reunited. If that is the case, the appellant is not entitled for compensation under the head of amputation. If at all he has suffered an amputation he would have been awarded by taking disability at 50% or more, but he has been given an alternative job in the KSRTC.
7. Under the aforesaid circumstance, we hold that the compensation awarded under the head of pain and suffering requires to be enhanced by another Rs.65,000/-. Compensation awarded under medical expenses at Rs.50,000/- is retained and evidence of the doctor that he required future medical expenses as per the evidence of doctors PWs.3 and 5 which would cost Rs.45,000/-. This was the evidence of the year 2009. The evidence has not been considered and no compensation has been awarded. Hence we are inclined to award another Rs.45,000/- towards future medical expenses. The compensation awarded under the head food and attendant charges and extra nourishment at Rs.18,200/- is retained. Towards loss of amenities another sum of Rs.50,000/- is awarded and towards conveyance another sum of Rs.45,000/- is awarded. Accordingly, the claimant is entitled for enhanced compensation of Rs.2,05,000/-.
8. The appeal is allowed in part. Judgment of the Tribunal stands modified.
9. The insurance company is directed to deposit the enhanced compensation within a period of eight weeks.
Sd/- JUDGE Sd/- JUDGE ykl