IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER 2017 BEFORE:
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL No.3316/2016 (MV) BETWEEN NAGARAJU D S/O. DODDA SIDDAIAH, AGED ABOUT 38 YEARS, R/O. NO. 633, SINGANALURU, KOLLEGALA TALUK-571440. ... APPELLANT (BY SRI. V N MADHAVA REDDY, ADV.) AND THE DIVISIONAL CONTROLLER K.S.R.T.C., BANNIMANTAP, URBAN DIVISION, MYSORE 570001. ... RESPONDENT (BY SRI. D VIJAYA KUMAR, ADV.) * * * THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:22.12.2015 PASSED IN MVC NO.282/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, & JMFC, KOLLEGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ‘FINAL HEARING’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant, dissatisfied with the amount of compensation awarded by the Tribunal for the injuries sustained by him in a motor vehicle accident, has filed this appeal, seeking enhancement.
2. On a perusal of the records, it is seen that the appellant has suffered the following injuries in the motor vehicle accident that occurred on 29.03.2014:
(1) Injury to nasal of the nose with left peri orbital oedema.
(2) Peri orbital ecchymosis both eyes.
(3) Prilateral infra orbital fracture.
The appellant has suffered disability of 25% pertaining to his face. Dr. Surjith Shetty has been examined as C.W.1 and he has deposed that he had conducted operation by inserting 2 plates on the nose and inserted plates and screws to upper jaw of the injured appellant.
3. Learned counsel for the appellant submits that initially, the appellant took treatment at Kollegal hospital and thereafter took higher treatment at J.S.S. Hospital at Mysuru as an in-patient for a considerable period. The Tribunal has committed an error while assessing the disability of the appellant at 8.33% to the whole body. He submits that the appellant was working as a driver and was also doing agriculture and mason work and earning more than Rs.10,000-00 p.m. Contrary to the same, the Tribunal has assessed his income at Rs.7,000-00 p.m. without any basis and awarded a meagre compensation of Rs.2,39,612-00.
4. Learned counsel for the respondent-KSRTC submits that the Tribunal has rightly assessed the income of the appellant at Rs.7,000-00 p.m. Considering the compensation awarded by the Tribunal on all other heads, what has been awarded is just and reasonable and no grounds are made out to interfere with the impugned Judgment and Award and prays to dismiss the appeal.
5. Heard the learned counsel for respective parties.
6. The appellant/injured himself has been examined as P.W.1. Dr. Surjith Shetty has been examined as C.W.1. C.W.1-doctor has deposed that the appellant-injured has sustained 25% of permanent disability pertaining to his face but, has not given percentage of permanent physical disability with respect to the whole body.
7. While calculating the percentage of disability, it is not either 1/4th or 1/3rd to be taken into consideration. Percentage of disability in respect of injuries is to be assessed at 1/3rd in case of lower part of the body and 1/4th in case of upper part of the body. While calculating the percentage of the disability, nature of the injuries suffered, the age of the injured and avocation is also to be taken into account. The age of the appellant injured was 36 years at the time of accident and he was treated by inserting plates on the nose and also inserting plates and screws to upper jaw, which are foreign body. When the muscles and bones are grown up, these implants would give unbearable pain and discomforts to the appellant injured. These facts should be taken into consideration at the time of assessing the disability. Under these circumstances and on the basis of the evidence of C.W.1- Dr. Surjith Shetty, the Tribunal has rightly assessed the percentage of disability at 8.33%. When a person, states that he was doing the job of driver, agriculture and mason and also he had taken treatment at J.S.S. Hospital itself shows the nature of the injuries and also the probable income he was earning. On this basis, if the loss of future earning capacity of the injured appellant is assessed by taking his monthly income at Rs.10,000-00, it would meet the ends of justice. Hence the loss of future earning would be:
Rs.10,000 x 12 x 15 x 8.33% = Rs.1,49,940-00 Hence, the appellant is entitled to an additional sum of Rs.44,982-00 [Rs.1,49,940 – 1,04,958] under the head loss of future income. Towards pain and suffering the appellant is entitled to another sum of Rs.20,000-00. The Tribunal has rightly awarded a sum of Rs.55,654-00 towards medical expenses and it does not call for interference. Towards food, nourishment, attendant and other incidental charges, another sum of Rs.10,000-00 is awarded. Towards loss of income during the laid-up period another sum of Rs.6,000-00 is awarded. Towards transport expenses, another sum of Rs.25,000-00 is awarded. Towards loss of amenities, another sum of Rs.40,000-00 is awarded.
In the result, the appeal is allowed in part. In addition to the compensation awarded by the Tribunal, the appellant is entitled to a sum of Rs.1,45,982-00 with interest as awarded by the Tribunal from the date of the petition till its payment.
Sd/- JUDGE.
CT-HR Ksm*