IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.5599 OF 2016 (WC) BETWEEN:
VODH NARAYAN @ BODH NARAYAN PANDEY S/O DAYA SHANKAR AGED 27 YEARS, R/AT C/O SHIVA CARGO MOVERS NO.B73, DEVARAJ ARAS TRUCK TERMINAL OPPOSITE KANTEERAVA STUDIO, YESHWANTHPUR, BANGALORE - 22 PERMANENT ADDRESS:
NO.66, PACHAKHARA AAAN, PACHAKHARA TEHSIL-UNCHAHAR DISTRICT, RAE BARELI, U.P.
... APPELLANT (BY SRI. SHRIPAD V SHASTRI, ADV.) AND:
1. IFFCO-TOKIO GENERAL INS. CO. LTD KSCMF BUILDING, 3RD FLOOR, 8TH BLOCK, CUNNINGHAM ROAD, BANGALORE-52 POLICY ISSUED BY ITS BRANCH OFFICE, 3RD FLOOR, STELLAR ENCLAVE, ABOVE MC DONALDS FAST FOOD AUNDH, PUNE, MAHARASHTRA, IN POLICY NO.1-1W31GIK P 404 POLICY NO.82791334 DATE OF VALIDITY FROM 2-2-2013 TO 1-2-2014 2. MR.UMESH KUMAR SING C-23, SHRINRANGA VIHAR, OPP. PANDIT AUTO TATHA WADE, TAL-MULSHI, DIST-PUNE.
(BY SRI.E I SANMATHI, ADV. FOR R1;
... RESPONDENTS NOTICE TO R2 IS DISPENSED WITH V/O DTD:28.03.2019) THIS MFA IS FILED U/S.30 (1) OF WC ACT, AGAINST THE JUDGMENT AND AWARD DATED:29.01.2016 PASSED ON ECA NO.20/14 ON THE FILE OF THE 1ST ADDITIONAL SMALL CAUSES JUDGE & 27TH ACMM, BENGALURU, PARTLY ALLOWING THE PETITION FILED U/S.22 OF EMPLOYEES COMPENSATION ACT.
THIS MFA COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T There is a delay of 58 days in filing the appeal. IA.I of 2017 is filed seeking condonation of delay. Accepting the cause shown in the affidavit filed in support of the Application, IA.I of 2017 allowed. Delay of 58 days caused in filing the appeal condoned. The learned counsel for the appellant has filed memo seeking dispensation of notice to respondent No.2. Memo is taken on record. Notice to respondent No.2 is dispensed with.
2. The case of the petitioner before the Motor Accidents Claim Tribunal, Bangalore was that on 08th March 2013, when he was driving canter vehicle bearing registration No.MH 14 BJ 2018 by observing traffic rules and Regulations on Nice Road,, near Vittasandra bridge, Electronics City, the offending Canter vehicle bearing Registration No.KA 02 AA 4266 was parked on the right side of the road without any indication and the appellants vehicle dashed against the said vehicle. The impact of the accident was that the appellant suffered grievous injuries with polytraumatic hydropneumo peritoneum, fracture of right femur and left tibia and fibula, ARDS (fat embolism) and others injuries to all parts of the body. Hence, he made claim the petition. The Tribunal, by its judgment and award dated 29th January, 2016 passed in E.CA.No.20 of 2014, awarded compensation of Rs.2,84,690/- with interest at 6% per annum. Being not satisfied with the compensation amount, the appellant is before this court in this appeal seeking enhancement in the compensation.
3. The learned counsel appearing for the appellant submits that the compensation awarded by the Tribunal is on the lower side. He submits that the appellant was a driver by profession and in the unfortunate accident he has suffered grievous injuries which has rendered him disable to do the work he was doing prior to accident. He also submits that the Tribunal has committed an error in taking the disability only at 16% when the appellant is suffering more than 49% of limb disability and more than 25% to the whole body. Hence, he seeks to allow the appeal and to enhance the compensation suitably.
4. The learned counsel for the respondent-insurer supports the judgment of the Tribunal and submits that the Tribunal has awarded the compensation which is sound and proper and the same does not call for interference in this appeal. In this background, he submits to dismiss the appeal.
5. Heard the learned counsel for the parties. The accident is not in dispute. In the accident the appellant has sustained fracture of shaft of right femur, fracture of left tibia and fibula. PW2 Doctor, in his evidence has deposed that though the fractures are united, the petitioner has difficulty to stand on affected legs and to stand on both legs for long, to squat, to climb stairs, to walk on the slope. He has also restriction of movements, loss of muscle power and has suffered disability at 25% to the whole body. PW1 the appellant, herein in his evidence has stated that he was driver by profession, but, now because of the accident, he cannot squat on ground, cannot walk for long duration or for a long distance, ascend or descend the stairs, he cannot ride or drive two or four wheeler vehicles, he cannot use Indian type of toilet, he gets pain and swelling in the injured part and he cannot do his day-to-day activities. In that view of the matter, and considering the evidence of PW2 Doctor as also the fact that the appellant cannot continue his profession as he was doing earlier, I am of the considered opinion that the disability percentage to be taken at 27%. Accordingly, it is taken. As regards income, in the absence of any documentary proof being produced by the appellant, the income taken by the Tribunal at Rs.8,000/- per month is just and proper. After deducting 40% from the said amount, the same would come to Rs.4,800/-. Hence the calculation would be Rs.4,800/- x 213.57 x 27% which comes to Rs.2,76,786/-. The same is awarded as against Rs.1,68,123/- awarded by the Tribunal under the head loss of earning capacity. The amount awarded by the Tribunal under other heads are retained. Accordingly, the compensation is enhanced by Rs.1,08,663/-. It is made clear that the enhanced amount carries interest at the rate as is awarded by the Tribunal.
In the result, appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn