Karnataka High Court
Smt. Alameli Bai @ Alamelamma vs The Managing Director on 27 August, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF AUGUST 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
M.F.A. NO. 8602/2016(MV)
BETWEEN:
Smt. Alameli Bai @ Alamelamma,
Aged about 41 years,
W/o Late Krishnappa,
R/at Thenganayakahalli,
Venkarayana Doddi Post,
Kanakapura Taluk,
Ramanagara District-562 117. ... Appellant
(By Sri.Girimallaiah., Adv.)
AND:
The Managing Director,
K.S.R.T.C.,
K.H.Road, Shanthinagar,
Bengaluru-560 027. ... Respondent
(By Sri.S.Rajashekar, Adv.)
This M.F.A. is filed under Section 173(1) of MV Act
against the Judgment and award dated 28.09.2016 passed in
MVC No.1826/2015 on the file of the II Additional Small
Causes Judge & XXVIII ACMM, MACT, Bengaluru, partly
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allowing the claim petition for compensation and seeking
enhancement of compensation.
This M.F.A. coming on for Hearing through video
conference, this day, H.T.Narendra Prasad J., delivered the
following:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated 28.09.2016 passed by the Motor Accident Claims Tribunal seeking enhancement of compensation.
2. Facts giving rise to the filing of the appeal briefly stated are that on 19.02.2015 the claimant was standing by the side of the road near Tenganayakanahalli Gate, Sathanur Hobli, Kanakapura Taluk. At that time, the driver of the KSRTC bus bearing registration No.KA-40/F-040 drove the bus, in a rash and negligent manner and at a high speed and dashed against the claimant. As a result of the aforesaid 3 accident, the claimant sustained injuries and was hospitalised.
3. The claimant filed a petition under Section 166 of the Act on the ground that she was working as a coolie and was earning `9,000/- p.m. It was further pleaded that on account of the injuries sustained in the accident, her left leg above knee was amputated and she is not able to do any manual work which she was doing earlier. The respondent filed written statement in which the averments made in the petition were denied. It was further pleaded that there is no negligence on the part of the driver of the bus and the claimant herself is solely responsible for the accident. It was also averred that she was sitting at the bus stop and after the driver started the bus, she rushed towards the bus but lost control and she fell down near the back wheel of the bus and with an intention to make a wrongful gain she has falsely implicated the driver of the bus. The respondent also denied the age, income, nature of injuries and the 4 expenses incurred for the treatment. Hence, dismissal of the petition, was sought for.
4. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant herself was examined as PW-1, another witness as PW-3 and Dr. Prakashappa as PW-2 and got exhibited documents namely Ex.P1 to Ex.P9. On behalf of the respondent, driver of the bus was examined as RW-1 and got exhibited documents namely Ex.R1 and R2. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the bus by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of `7,07,205/- along with interest at the rate of 6% p.a. Being aggrieved, this appeal has been filed.
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5. Learned counsel for the claimant submitted that at the time of the accident claimant was aged about 40 years and she was earning `9,000/- per month but the Tribunal has taken the notional income as only `6,500/- per month. Secondly, due to the accident claimant had suffered grievous injuries and her left leg has been amputated above knee. There is a physical disability of 80%. Due to that disability she is unable to do her work. But the Tribunal has failed to consider the functional disability of the claimant and has not considered addition of future prospects. In support of aforesaid contention, reliance is placed on the judgment of the Apex Court in the case of 'SYED SADIQ AND OTHERS vs. DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD.' 2014 ACJ 627. Thirdly, due to amputation claimant has to spend 2.00 lakhs for artificial limb. The Tribunal has not granted any compensation for future medical expenses. Fourthly, due to the surgery claimant was inanities in the hospital 6 for 86 days. The compensation awarded by the Tribunal under the head pain and suffering is on the lower side. Fifthly, claimant has suffered amputation which amounts to disability of 80% to the limb and 40% to the whole body. She has to suffer the disability throughout her life. The compensation granted by the Tribunal under the head loss of amenities is on the lower side. Hence, he sought for enhancement of the compensation.
6. On the other hand, learned counsel for the Corporation submitted that the even though the claimant has claimed that she was earning `9,000/- per month, but she has not produced any documentary evidence to establish the same and therefore the Tribunal has rightly considered the notional income of the claimant as `6,500/-. Secondly, she has examined Dr.Prakashappa as PW-2, who, in his deposition has specifically assessed the whole body disability at 40% and therefore, the Tribunal has rightly taken the disability at 40%. Thirdly, even though claimant claims 7 that she requires `2.00 lakhs for future medical expenses but as per the evidence of the doctors PW-3 and PW-4, there is no mention about the future medical expenses. Even after six years of the accident she has not produced any documents for having incurred any future medical expenses. The amount of compensation which has been awarded is just and proper and does not call for interference.
7. We have considered the submissions made by the learned counsel for the parties and have perused the record. Admittedly, the claimant at the time of accident was aged 40 years and was a coolie. She has not produced any evidence with regard to her income. Therefore, the notional income has to be fixed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2015, the notional income has to be taken at `9,000/- p.m. Since the monthly income of the claimant has been assessed at Rs.9,000/- the compensation 8 granted by the Tribunal under the head loss of income during laid up period has to be enhanced.
8. Due to the accident the claimant suffered the following injuries:
"(i) Extensive degloving injury to left leg, measuring 30 x 20 cms. Exposing left femur and left tibia.
(ii) Segmental fracture shaft of left femur and crush injury to right foot, resulting in amputation of left leg above knee."
The claimant has examined the doctor as PW-2 who has deposed that there is above knee amputation at the junction of middle and lower third of left lower limb amounts to 80% to the limb and to the whole body at 40%. Even PW1 in her evidence has stated that due to the accident and amputation of leg, she is unable to do her daily work. Considering the deposition of the doctor and the evidence of PW1, we are of the opinion that the whole body disability has to be considered at 80%. The 9 Apex Court in the case of SYED SADIQ (supra) has held as hereinbelow:
"10. Further, it is evident from the material evidence on record that the appellant/claimant was 24 years old at the time of occurrence of the accident. It is also established on record that he was earning his livelihood by vending vegetables. The issue regarding calculation of prospective increment of income in the future of self employed people, came up in Santosh Devi v. National Insurance Company Limited 2012 ACJ 1428 (SC), wherein this Court has held as under:
"14. We find it extremely difficult to fathom any rationale for the observation made in the judgment in Sarla Verma's case 2009 ACJ 1298 (SC), that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naive to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. Rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of 10 fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed under the Central and State Governments and their agencies/ instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of Rs.1,00,000. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase 11 the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 11 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he / she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation."
Therefore, considering that the appellant/ claimant was self employed and was 24 years of age, we hold that he is entitled to 50 percent increment in the future prospect of income based upon the principle laid down in the Santosh Devi case (supra). "
Since there is functional disability, the claimant is entitled for addition of future prospects. In view of the 12 law laid down by the Apex Court in the case of 'NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS' AIR 2017 SC 5157, since the claimant is aged between 40 to 50 years, she is entitled for 25% addition of the income for calculation of future prospects. Therefore, if the disability is taken as 80%, taking into consideration 25% future prospects and the age of the claimant, the claimant is entitled to `15,12,000/- on account of loss of future earning capacity. The claimant has suffered grievous injuries and remained inpatient for more than 86 days and has received treatment. Therefore, it can be safely inferred that he was under treatment for six months and hence, she is entitled to `54,000/- on account of loss of income during the period of treatment. The compensation awarded by the Tribunal under the heads pain and suffering, medical expenses, loss of amenities and conveyance, attendant charges, nourishment are not disturbed. In respect of future medical expenses is 13 concerned, even though claimant claims that she requires `2.00 lakhs for artificial limb, nothing has been stated by the doctor in his evidence and she has also not produced any document before this Court. Thus, the claimant is entitled to a total compensation to the tune of `17,97,405/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Sd/-
JUDGE Cm/-