IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH 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. 2198 OF 2016 (MV-I) BETWEEN:
RAVIKUMAR S/O GOVINDAIAH AGED ABOUT 31 YEARS R/A S.S. PURAM 6TH CROSS, TUMKUR PIN-572 101. …APPELLANT (BY SRI. K SHANTHARAJ, ADVOCATE) AND:
1. CHANNIGASWAMY S/O NOT KNOWN AGE MAJOR R/AT NO.5272, 22ND MAIN ROAD, 20TH CROSS BEHIND BTS GARAGE VIJAYANAGAR BENGALURU-560 040.
2. THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LTD UNITY BUILDING ANNEXE KALINGARAO ROAD BENGALURU-560 027.
ALSO REPRESENTED BY BRANCH MANAGER NATIONAL INSURANCE COMPNAY LTD.
M.G. ROAD CROSS TUMKUR-572 101.
3. RAJENDRA KUMAR BHOSLE @ RAJESH KUMAR BHOSLE S/O MAJUTAPPA BHOSLE AGE MAJOR R/AT NO.48/3 ANCHEPALYA BENGALURU-560 073. ...RESPONDENTS (BY SRI. S V HEGDE MULKHAND, ADVOCATE FOR R2, NOTICE TO R1 DISPENSED WITH V/O DATED 29.3.16) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT 1988 AGAINST THE JUDGMENT AND AWARD DATED:20.01.2016 PASSED IN MVC NO.636/2012 ON THE FILE OF THE VI ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT, AT TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:
JUDGMENT Notice to respondent No.3 is dispensed with.
2. For having suffered injury in the road traffic accident on 12.02.2012 claim petition has been filed in MVC No.636/2012 on the file of VI Additional District Judge and AMACT at Tumkur and the Tribunal has awarded a compensation of Rs.11,77,955/- against which this appeal is filed.
3. The grounds taken are that as per the evidence of PW.2 who had deposed that there is shortening of two inches of right leg and on examination left hip for mobility component, stability and additional factus patient has disability of 16.60% to the whole body and x-ray of both the pelvis with both hip joints show, left hip femuneral head contour is deformed with subschandral lucency and sclerotic foci was noted and in respect of spine injury survical C5 and lumbar fractures of L1 vertebral fracture, patient complaints of pain in the neck C5 region and despite of all these injuries suffered, the Tribunal assessed the disability at 15%.
4. It is submitted that as a result of the injuries suffered in the accident the appellant is finding pain in the chest, difficulty in breathing, lifting weights, bending, climbing and doing normal routine work and he had multiple fractures of ribs and fracture of capula. Though the patient has disability of above injuries, the percentage has not been properly assessed and it is the submission of the appellant that disability has to be assessed at 100%.
5. On the submissions of the appellant this Court by its order dated 17.1.2017 directed the appellant to obtain a certificate, copies of the medical report from the medical board of Bowring Hospital at Bengaluru along with the medical records. On receipt of the order passed by this Court dated 17.01.2017 the Bowring Hospital constituted medical board and examined the case and forwarded a report to this Court with an observation that the injured has suffered disability at above 50%.
6. Learned counsel for the appellant submitted that nature of injury and the difficulty that is being faced by the appellant, 100% disability has to be considered.
7. Learned counsel for the Insurance Company on the other hand submitted that on the report submitted by the medical board, disability is to be taken at 1/3rd and the compensation is to be awarded accordingly. Virtually he supports the order passed by the Tribunal and submits to dismiss the appeal.
8. We have heard the learned counsel for both the parties. As per the directions issued by this Court the parties have appeared before the medical board and board has been constituted consisting of Chairman and Members and the injured was examined by the member of the board Dr. K G Gopalakrishna, Assistant Professor, Department of Orthopedics and it is his opinion that the left hip – Moderate Arthritis, x-ray shows moderate arthritis changes with subluxation. The disability is about 50%.
9. The report of the medical board is to be examined with reference to the affidavit filed by the doctor who has been examined as PW.2 who has stated therein that on 01.12.2015 the patient came for check up for further treatment and assessment of disability in relation to his left hip.
10. When the report is examined in the light of the evidence of the doctor who has treated the injured it is found that the opinion of the medical board in compliance of the direction issued by this Court on 17.01.2017 is to be considered for the purpose of awarding compensation. Under the head of loss of future income the tribunal has selected the disability at 15% on the basis of the evidence of the doctor PW.2 who has deposed at 16.60% and the disability to the whole body. Percentage of disability to be assessed on the basis of the occupation in order to award the functional disability. The evidence of the doctor is that the claimant cannot sit and cannot use Indian Toilet and he is not in a position to walk freely, climb, etc., This shows that he has suffered 50% disability as it is reported by the medical board. Accordingly, the same is to be calculated for the purpose of awarding compensation. Hence the calculation would be 8,843 x 12 x 50 x 17 = Rs.9,01,986/- and the same is awarded against Rs.2,70,595/-. Towards pain and suffering Rs.60,000/- in addition is awarded totaling to Rs.1,00,000/-. Towards medical expenses compensation awarded at Rs.4,40,431/- is retained. The attendant charges and loss of income during laid up period is quantified at Rs.79,587/- and towards food and nourishment Rs.25,000/- is awarded as against Rs.5,000/-, towards transportation charges additional Rs.10,000/- is awarded, towards loss of amenities totally Rs.50,000/- is awarded, compensation awarded future medical expenses at Rs.3,50,000/- is retained. Accordingly, the claimant is entitled for total compensation of Rs.19,62,004/- (Rupees Nineteen Lakh Sixty Two Thousand and Four only). The enhanced compensation carries interest at the rate of 6%. Accordingly, the appeal is partly allowed.
Sd/- JUDGE Sd/- JUDGE ykl