IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.1524/2012 (MV) BETWEEN:
GANGA RAJU @ GANGULAPPA, S/O NARDYANAPPA, AGED ABOUT 20 YEARS, R/AT POOSAGANAGODDI VILLAGE, SIDLAGHATTA TALUK, NOW R/AT CHIKBALLAPUR TALUK, CHICKBALLAPUR TOWN. … APPELLANT (BY SRI P.L. NANJUNDASWAMY, ADVOCATE) AND:
1. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, P.B.No.16, I FLOOR, SBLT BUILDING, POLYTECHNIC ROAD, CHINTAMANI.
2. V.L. NARASIMHAMURTHY, S/O V.N. LAKSHMAIAH, NEAR GEETHMANDIRA, E R EXTENSION, CHINTAMANI TOWN.
3. B.G. VENUGOOPALAREDDY, S/O GOPALAPPA, BACHAVARAHALLI, KAGATHI POST, CHINTAMANI TALUK. ... RESPONDENTS (BY SMT. LAKSHMI S. HOLLA, ADVOCATE FOR SRI PUTTIGE R. RAMESH, ADVOCATE FOR R-1, R-2 AND R-3 SERVED THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 2.5.2011 PASSED IN MVC.NO.5/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, CJM, MEMBER, ADDITIONAL MACT, CHICKBALLAPUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though the matter is listed for admission, with the consent of learned advocates for the parties, it is taken up for final disposal.
2. This appeal is filed challenging the quantum of compensation awarded by the Tribunal granting compensation of Rs.62,000/- with 6% interest per annum as against Rs.2,00,000/- claimed by the claimant.
3. The main contention of the appellant in this appeal is that the Tribunal failed to take note of the evidence of the doctor – P.W.2, who deposed 18% disability to particular limb and 6% disability to the whole body of the injured. The compensation awarded under other heads is also very meager. Hence, it requires interference of this Court.
4. The learned counsel for the respondent No.1 would contend that the Tribunal has taken note of the nature of injuries sustained by the minor boy, who is aged about 14 years. The Tribunal has awarded the compensation under all the heads and the same is just and reasonable.
5. Having heard the learned counsel for the appellant and the learned counsel for the respondent No.1, the points that arise for the consideration of the Court are:
(i) Whether the Tribunal has committed an error in not awarding just and reasonable compensation?
(ii) What order?
Point Nos.(i) and (ii):
6. Having heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent No.1, there is no dispute with regard to the accident and nature of injuries. The injured has sustained fracture and in support of his contention, the injured has examined the doctor as P.W.2. P.W.2 in his evidence deposed that on clinical examination, he found old healed scar over right thigh, lateral aspect, tenderness over mid 1/3rd of right thigh, right knee joint movements restricted to 30 degrees of flexion and right hip joint movements restricted to 20 degrees of flexion and 10 degrees of abduction. Radiological examination of right knee with thigh shows old malunited fracture of right femur at middle 1/3rd with plate and screws in situ. The doctor assessed the disability of 18% to the right lower limb and 6% disability to the whole body. It is also his evidence that the injured is in need of Rs.20,000/- for future surgery for removal of implants in a private hospital. In the cross- examination of P.W.2, he admits that he did not give any treatment to the injured. He has not produced the guidelines before the Court, based on which he assessed the disability. It is suggested that he has given false disability certificate and the same was denied.
7. Having considered the material on record and the evidence of P.W.2, the Tribunal granted an amount of Rs.1,160/- under the head ‘medical expenses’. Towards ‘pain and sufferings’, an amount of Rs.15,000/- is awarded. Towards diet and incidental charges, an amount of Rs.5,000/- is awarded. Towards loss of educational career, an amount of Rs.5,000/- is awarded. Towards future medical expenses, an amount of Rs.10,000/- is awarded. Towards disability, an amount of Rs.25,000/- is awarded.
8. On perusal of the judgment and award of the Tribunal, it is clear that the Tribunal failed to appreciate the evidence of P.W.2 – doctor. The evidence of P.W.2 is very clear that there was a malunion of fracture and the Tribunal only made a guess work while awarding the compensation and has not considered the medical evidence.
9. I would like to refer to the judgment of the Hon’ble Apex Court in the case of MALLIKARJUN v. DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER reported in (2014) 14 SCC 396. The Apex Court while awarding compensation in respect of a minor boy aged 12 years has held that if the disability is up to 10%, Rs.1,00,000/- has to be awarded and above 10% and up to 30% to the whole body, Rs.3,00,000/- has to be awarded; up to 60% Rs.4,00,000/- has to be awarded; up to 90%, Rs.5,00,000/- has to be awarded and above 90%, Rs.6,00,000/- has to be awarded.
10. Having considered the principle laid down in the judgment referred supra, though the doctor – P.W.2 has assessed the disability of 6% to the whole body and as the evidence of doctor has not been disputed with regard to malunion of fracture, hence it is appropriate to take the disability at 10% to the whole body. If disability is taken at 10%, in view of the judgment of the Apex Court an amount of Rs.1,00,000/- has to be awarded under the head ‘disability’.
11. The injured was in the hospital for a period of 15 days and during that time his parents were taking care of the minor boy. In respect of discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization, an amount of Rs.25,000/- is awarded by the Apex Court in the judgment referred supra and the same has to be awarded in this case also.
12. The Tribunal while awarding future medical expenses, awarded an amount of Rs.10,000/- and the doctor in his evidence states that minimum Rs.20,000/- is required for future medical expenses in a private hospital. Having considered that he was subjected to surgery and there was a malunion, it is appropriate to award an amount of Rs.25,000/- under the head ‘future medical expenses’ taking note of the present cost of injury for removal of implants and correction of malunion of fracture.
13. The Tribunal has rightly awarded Rs.1,160/- towards medical expenses and the same does not require interference of this Court since the same is based on documentary evidence.
14. In all, the appellant is entitled to a compensation of Rs.1,51,160/- with interest at 6% per annum as against Rs.61,160/-.
15. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed partly.
(ii) The impugned judgment and award of the Tribunal is modified granting compensation of Rs.1,51,160/- as against Rs.61,160/- with interest at 6% per annum.
(iii) The respondent No.1 is directed to pay the compensation with interest within eight weeks from today.
Sd/- JUDGE MD