IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER 2019 BEFORE THE HON'BLE Mr.JUSTICE S.R.KRISHNA KUMAR REVIEW PETITION NO.184 OF 2019 (MV) BETWEEN:
SRI. RAVINDRAKUMAR AGED 32 YEARS S/O SRI. ELUMALAI RESIDENT OF NEAR OLD POST OFFICE ROAD RAMANAHALLI EXTENSION – 577 101. CHIKKAMAGALURU DISTRICT.
(BY SHRI.JAGADISH BALIGA.N, ADVOCATE) AND:
1. SRI. AVINISH BABU K.V. S/O SRI. K.V.BABU AGED 30 YEARS RESIDENT OF D.NO. 395 VENKATAREDDY NAGAR, 6TH CROSS SIDDAPUR LAYOUT, JAYANAGAR EXTENSION BENGALURU – 560 011.
2. SIR.RAVIKUMAR S/O SRI.P.M. SUBRAMANI AGED ABOUT 34 YEARS RESIDENT OF NO.177, OLD NO. 212 A …PETITIONER NETHRAVATHI STREET, UDAY NAGAR BENGALURU – 560 048.
3. THE MANAGER IFFCO-TOKIO GENERAL INSURANCE COMPANY LIMITED SRISANTH TOWER, 5TH FLOOR 3RD MAIN, OPPOSITE KUPPE COFFEE CENTRE KASTUR NAGAR, EST. N.G.E.F. LAYOUT BENGALURU – 560 048.
…RESPONDENTS (BY SHRI.E.I. SANMATHI, ADVOCATE FOR R-3) THIS REVIEW PETITION IS FILED UNDER ORDER 47 RULE 1 UNDER SECTION 114 OF CPC PRAYING TO CALL FOR THE RECORDS IN M.F.A.NO. 8032/2017(MV) ON THE FILE OF THE LEARNED SINGLE JUDGE, PRINCIPAL BENCH, HIGH COURT OF KARNATAKA AT BENGALURU AND ALLOW THIS PETITION AND THEREBY SER-ASIDE THE JUDGMENT DATED: 04.04.2019 TO THE EXTENT UNDER CHALLENGE IN M.F.A. NO.8032/2017(MV) ON THE FILE OF THE LEARNED SINGLE JUDGE, PRINCIPAL BENCH, HIGH COURT OF KARNATAKA AT BENGALURU AND THEREBY GRANT ADDITIONAL COMPENSATION OF RS-5,00,645/- ALONG WITH INTEREST AT 6% PER ANNU AND ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER This review petition is filed against the impugned judgment and order dated 04.04.2019 passed by this Court in MFA No.8032/2017 whereby this Court partly allowed the appeal filed by the claimant-appellant and awarded additional compensation of Rs.97,000/- in addition to the compensation of Rs.6,62,892/- awarded by the Tribunal 2. It is contended by the learned counsel for the review petitioner that this Court committed an error apparent on the face of the record in failing to consider and appreciate the unimpeached, uncontroverted and unchallenged evidence of the claimant and the doctors-
P.W.2 and 3 examined by him and the documentary evidence on record which would clearly establish that the appellant had suffered permanent functional disability to an extent of 18% to the entire body. It was contended that on account of the accident, the appellant has suffered grievous injuries and in particular, damage to the right eye which has reached an irretrievable condition and cannot be cured or repaired. Consequently, the Tribunal as well as this Court committed an error in taking the permanent functional disability for the entire body at 9% instead of 18%. It is therefore contended that this aspect of the matter has neither been considered nor appreciated by this Court while disposing of the appeal by the impugned order. Consequently, this Court committed an error apparent on the face of the record in failing to consider and appreciate the said aspect, which clearly has occasioned the failure of justice.
3. Learned counsel for the review petitioner also contended that having regard to the nature of the injuries and the damage caused to the right eye of the appellant that on account of the accident, the appellant is not in a position to close his right eye, cannot read, cannot look down, has double vision, cannot drive vehicle and is suffering from ‘Diplopia’ which cannot be corrected even by surgery and therefore, this Court committed an error apparent on the face of the record in not awarding adequate compensation under head loss of amenities as well as under the head pain and suffering. It is therefore contended that the compensation to be awarded under the aforesaid three heads, viz., loss of future earning capacity, pain and suffering and loss of amenities deserves to be enhanced by this Court in this review petition.
4. Per contra, learned counsel for respondent No.3 would support the impugned order.
5. I have carefully considered the rival submission and perused the material on record as well as the impugned judgment passed by this Court.
6. As rightly contended by the learned counsel for the petitioner, despite the petitioner making out several grounds with regard to inadequate compensation granted under the head loss of future earning capacity, that aspect of the matter has not been dealt with by this Court while passing the impugned order. Whilst this Court has enhanced compensation under certain other heads, there is absolutely no discussion or finding with regard to enhancement of compensation under the head loss of future earning capacity. In this context, the records in MFA No.8032/2017 which are put up indicates that at ground VI(e) of the memorandum of appeal, the appellant has taken up a specific ground with regard to non-grant of adequate compensation under the head loss of future earning capacity. It is therefore clear that this Court committed an error apparent on the face of the record in not considering awarding compensation under the said head and the same warrants interference in this review petition.
7. In so far as the compensation payable under the other two heads are concerned, this Court despite noticing that the injuries were of grievous in nature as stated above, committed an error in not awarding sufficient compensation under the head pain and suffering as well as loss of amenities. In my view, having regard to the material on record and the ground urged by the appellant in the appeal, this Court clearly committed an error apparent on the face of the record in not awarding sufficient or adequate compensation under these two heads also. The aforesaid discussion would clearly indicate that error apparent on the face of the record available before it was committed by this Court while passing the impugned order which deserves to be reviewed by this Court in this review petition.
8. Accordingly, I am of the view that the appellant is entitled to an additional compensation of Rs.2,38,645/- under the head loss of earning capacity by taking the permanent functional disability for the entire body as 18%. So also having regard to the nature, gravity and seriousness of the injuries suffered by the appellant on account of the accident, I deem it just and proper to award an additional sum of Rs.25,000/- towards pain and suffering and Rs.25,000/- towards loss of amenities in addition to what has already been awarded by the Tribunal as well as this Court.
9. Thus the petitioner is entitled to an additional enhanced compensation of Rs.2,88,645/- together with interest at 6% p.a., from the date of claim petition till realization. It is made clear that this additional amount of Rs.2,88,645/- awarded by me is in addition to the compensation of Rs.97,000/- already awarded by this Court.
10. In view of the aforesaid reasons, I pass the following:
ORDER i) This Review Petition is hereby allowed;
ii) The impugned judgment/order dated 04.04.2019 passed in MFA No.8032/2017 is hereby set aside;
iii) Petitioner is entitled to an additional compensation of Rs.3,88,645/- which shall carry interest at 6% p.a., from the date of the claim petition till realization in addition to enhanced compensation of Rs.97,000/- already granted.
Review Petition is allowed in the above terms. No costs.
Sd/-
JUDGE bnv*