In the matter of Kumaraswamy vs The Executive Engineer (Elec) on 22 November, 2022(M.F.A.NO.3585/2017 (MV–I)) presided by THE HON’BLE MR. JUSTICE H.P. SANDESH stated that this m.F.A. It is submitted according to § 173 paragraph 1 the law on mv against the judgment and evaluation of 13.02.2015 MADE IN MVC no. 308/2012 in the file of the older
Additional civil judge mact-17 at gubba allowing in part the claim for compensation and application for increase in compensation.
FACTS OF THE CASE
This appeal is filed by the plaintiff challenging the judgment and award dated 13.02.2015 passed in M.V.C. No. 308/2012 on the file of the Chief Civil Judge, Addendum MACT-17, at Gubbi (for short, the “Tribunal”).
The parties are listed in their original order before the Tribunal to avoid confusion and for the convenience of the Tribunal.
The factual basis of the applicant’s case before the Tribunal is that he met with an accident on 07/09/2011 and sustained a fractured right trochanter, a fractured diaphysis of the right femur and a fractured condyle of the right tibia and other injuries all over his body.
In support of his contention, he examined himself as P.W.1 and further examined the Doctor as P.W.2 who rated the disability as 38% on the right lower limb and 12.66% on the whole body. The Tribunal after considering the material available on record took 13% disability and income of Rs.8,000/- per month since he was running Provision Store and awarded compensation of Rs.4,17,821/-. This appeal is therefore brought by the petitioner-plaintiff to this Court challenging the amount of compensation and contending that the compensation awarded was very low and the Tribunal erred in taking a disability of 13% when he suffered three fractures. It therefore requires the intervention of this court.
On the other hand, the learned Counsel appearing for the respondents submits that even in the absence of any documentary evidence, the income of the Tribunal was Rs.8,000/- per month and the compensation awarded to all other members is fair and reasonable. So it does not require any interference.
THE HON’BLE MR. JUSTICE H.P. SANDESH OBSERVED THAT:
After hearing the relevant legal representative and after studying the available materials, the injured person was hospitalized for 16 days and also underwent an operation. Even Ex.P4-Wound Certificate reveals that he suffered three fractures. In that case, where he suffered a fractured right trochanter, a fractured right femoral shaft and a fractured right tibial condyle, and other injuries throughout his body, the Tribunal assessed his disability at 13%, which is on the smaller side. . Although the doctor assessed the involvement of the right lower limb as 38% and the whole body as 12.66%, the Tribunal lost track of the nature of the injuries, i.e. the three fractures, which were also a fracture of the right trochanter, a fracture of the diaphysis of the right femur and a fracture of the right tibial condyle. The disability therefore increases to 16% and the court must reassess the compensation. In the case of 2011 accident, the Tribunal selected an income of Rs.8000/- and the notional income would be Rs.6500/- per month. However, he added Rs.1,500/- in view of the business he is carrying on, viz. Provision Stores. Therefore, I find no error in the Tribunal deducting the income of Rs.8,000/- per month. This Court after revisiting has taken an income of Rs.8000/- per month with 16% disability and the relevant multiplier would be 16 as he was about 34 years at the time of accident, loss of future income due to permanent disability comes to Rs.2,45,760 .
The tribunal awarded compensation of 50,000 rupees for pain and suffering. He was hospitalized for 16 days. He suffered a fractured right trochanter, a fractured diaphysis of the right femur, and a fractured right tibial condyle. The tribunal no doubt considered the nature of the injury but awarded less compensation. Hence, the same is increased to Rs.60,000/-.
The tribunal awarded compensation of Rs 3,200 per head for food and board and escort fees and Rs 5,000 per head for transport. Total Rs.8,200/-. If the injured person has been hospitalized for 16 days, it is appropriate to award an amount of Rs.15,000. for board and food and escort expenses and for transportation expenses.
The Tribunal awarded compensation of Rs.24,000/- for loss of income due to the stipulated period for a period of three months. Since he suffered three fractures, it requires at least 4 to 5 months of time to heal the fractures and rest. Thus, this Court assessed the income for a period of five months at Rs.40,000/- as against Rs.24,000/-.
The Tribunal awarded an amount of Rs.95,941 on documentary evidence. I therefore find no error committed by the Tribunal in awarding compensation in this regard.
The tribunal awarded an amount of Rs.20,000/- towards future medical expenses, the same is required for removal of implants and the doctor estimated the future medical expenses at Rs.35,000/-. Therefore, it is appropriate to grant an amount of Rs.25,000 under this head.
However, the Tribunal erred in awarding compensation of Rs.20,000/-. The injured was about 34 years old and suffered 16% disability. Therefore, it is appropriate to grant an amount of Rs.40,000/- under the head ‘Loss of Equipment’.
In view of the above discussions, I submit the following:
(i) The appeal is allowed in part.
(ii) The impugned judgment and award of the Tribunal dated 13.02.2015 issued in M.V.C.No.308/2012 is amended to permit
compensation of Rs.5,21,701 as against Rs.4,17,821 awarded by the Tribunal with interest at 6% per annum from the date of filing of the petition till its execution.
(iii) Respondent No. 2 is directed to pay the compensation amount with interest within six weeks from today.
(iv) The Registry is directed to forward the records to the appropriate tribunal forthwith.
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JUDGEMENT REVIEWED BY HARSHA L NALWAR