IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR MISCELLANEOUS FIRST APPEAL No.201/2017 (MV) BETWEEN:
SRI K.N.SHIVANANAD S/O K.S.NAGARAJU, AGED ABOUT 38 YEARS, SRI GAJAMUKHA JEWELLERY WORKS, KUDUR, KUDUR HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT-581453.
... APPELLANT (BY SRI SHIVAKUMAR P, ADV.) AND:
1. UNITED INDIA ASSURANCE CO. LTD., KRISHI BHAVAN, NEXT TO MAGISTRATE COURT, NRUPATHUNGA ROAD, KRUSHI BHAVAN, BENGALURU-560001, REP. BY ITS MANAGER.
2. MAHANTESH N.K S/O PAPPANNA R/AT NO.1906, DEVANGA BEEDI, NELAMANGALA TOWN & TALUK, BENGALURU RURAL DISTRICT-562123.
... RESPONDENTS (BY SRI O MAHESH, ADV. FOR R1, R2 SERVED & UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:23/11/2015 PASSED IN MVC NO.294/2011 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE AND MEMBER MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard the learned counsel for the appellant and learned counsel for respondent No.1-insurer. There is no representation on behalf of respondent No.2-insured.
2. The factum of the accident is not in dispute and the liability on respondent No.1-insurer is also not in dispute. It is submitted by the learned counsel for respondent No.1 that the insurer has also satisfied the award. Hence, the point that falls for consideration is:
“Whether the sum of Rs.5,07,200/- awarded by the Tribunal is just and reasonable?
4. There is no dispute with regard to the nature of injuries suffered and the avocation of the appellant/claimant.
5. It is the case of the appellant that he is a Goldsmith by profession. In the accident that occurred on 02.01.2011, the claimant suffered fracture of left radius with ulnar styloid fracture; was treated in the form of closed reduction and IL with K wire procedure was done to the appellant on 03.01.2011 and subsequently wires have been removed and that his upper limb is important to the appellant to carry on his avocation as a Goldsmith. It is also claimed that the appellant is the Proprietor of the Gajamukha Jewellary Works and he is income tax assessee and has also placed on record the Income Tax returns for the years 2006- 2007 to 2011-2012. The Tribunal has taken the Income Tax returns as the basis for calculating the income of the claimant and has concluded that the income of the appellant per month is Rs.18,354/- and rounded of to Rs.18,000/-.
6. The Tribunal has further assessed the disability suffered by the appellant. In this regard, the Tribunal has appreciated the evidence of the Doctor who issued the disability certificate. As per the disability certificate, the appellant has suffered disability @ 34% to the left upper limb which comes 12% to the whole body. The Tribunal after appreciating the material on record and evidence of PW.3/Doctor has calculated the disability at 10% to the whole body. On the said basis of calculation, the Tribunal has awarded a sum of Rs.5,07,200/- as compensation to the appellant.
7. It is contended by the learned counsel for the appellant that the sum awarded under the head ‘pain and sufferings’ and under the heard ‘loss of Income during laid up period’ are on the lower side. He would further contend that the Tribunal has not properly appreciated the impairment to the left lower limb and has also not appreciated the functional disability suffered by the appellant in carrying out his profession as Goldsmith on account of the functional impairment. Learned counsel for the appellant has furnished the evidence of PW.3. In the evidence, the following disabilities are noticed by the Doctor:
i) Deformity of left wrist ii) Tenderness over left wrist joint iii) Left wrist palmar dorsiflexion 20° (N-0-160°) iv) Ulnar radial deviation – 25° (N-0-55°) v) Left forearm pronation – supination 30° (N-0-180°) vi) He cannot lift weight with upper limb vii) Grip strength of left hand is reduced by 50% 8. The Doctor has now have opined that the injuries suffered by the appellant would disable him from carrying on his profession as Goldsmith. The appellant is also not able to produce any material which would demonstrate the functional disability suffered by the appellant.
9. Though the sum awarded under the head ‘pain and sufferings’ appears to be on the lower side, the total compensation awarded by the Tribunal appears to be just and reasonable. In that view of the matter, the well considered judgment and award does not warrant any interference.
Accordingly, the appeal is rejected without being admitted.
VM CT:HR Sd/- JUDGE