Karnataka High Court
Sri Chikkegowda vs Swamy on 27 September, 2018
Bench: Raghvendra S.Chauhan, B M Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER 2018
PRESENT
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
M.F.A. NO.6404 OF 2012 (MV)
C/W M.F.A. NO.6384 OF 2012,
M.F.A. NO.9222 OF 2012,
M.F.A. NO.9223 OF 2012
In MFA No.6404/2012
BETWEEN:
Sri. Chikkegowda
S/o Subbegowda,
Aged about 50 years,
Residing at Hundimala Building Village,
Hunsur Taluk,
Mysuru District - 571 105.
...Appellant
(By Sri. S.A. Saboor, Advocate)
AND:
1. Swamy S/o Late Kyatharaiah,
Aged about 30 years,
Residing at Srirama Block Road,
K.R. Nagar Town, K.R. Nagar,
Mysuru - 571 110.
2
2. B.R. Shankar,
S/o B.P. Rajashekara,
Aged about 40 years,
Residing at 64, Vinobha Colony,
Hunsur Town, Hunsur - 571 105.
3. The United India Insurance Co. Ltd.,
Office at Hunsur Club Complex,
Post Office Road,
Hunsur - 571 105.
... Respondents
(By Sri. K. S. Lakshminarasappa, Advocate
For Sri. B. C. Seetharama Rao, Advocate for R3;
Vide order dated 26.02.2015, notice to R1
and R2 are dispensed with)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 30.03.2012
passed in MVC No.1029/2011 on the file of the
presiding officer, Fast Track Court-III, Mysuru, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
In MFA No.6384/2012
BETWEEN:
Sri. Thotlegowda,
S/o Lakkegowda,
Aged about 48 years,
Residing at Muskue,
Annur Post and Hobli,
H.D. Kote Taluk,
Mysuru District.
...Appellant
(By Sri. S.A. Saboor, Advocate)
3
AND:
1. Swamy,
S/o Late Kyatharaiah,
Aged about 30 years,
Residing at Srirama Block Road,
K.R. Nagar Town,
K.R. Nagar,
Mysuru - 571 110.
2. B.R. Shankar,
S/o B.P. Rajashekara,
Aged about 40 years,
Residing at 64,
Vinobha Colony,
Hunsur Town,
Hunsur - 571 105.
3. The United India Insurance Co. Ltd.,
Office at Hunsur Club Complex,
Post Office Road,
Hunsur - 571 105.
... Respondents
(By Sri. K.S. Lakshminarasappa, Advocate
For Sri. B.C. Seetharama Rao, Advocate for R3;
Vide order dated 14.03.2014, notice to R1 is
Dispensed with; R2 - served)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 30.03.2012
passed in MVC No.1028/2011 on the file of presiding
officer, Fast Track Court-III, MACT, Mysuru, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
4
In MFA No.9222/2012
BETWEEN:
United India Insurance Co. Ltd.,
Hunsur Branch
Through its Regional Office,
United India Insurance Co., Ltd.,
Krishi Bhavan, 5th Floor,
Nrupatunga Road,
Bengaluru - 560 001.
Rep. by its Manager Smt. Navamany.
...Appellant
(By Sri. K.S. Lakshminarasappa, Advocate
for Sri. B.C. Seetharama Rao, Advocate)
AND:
1. Sri. Thotlegowda,
S/o Lakkegowda,
Aged about 49 years,
Residing at Muskue,
Annur Post and Hobli,
H.D. Kote Taluk,
Mysuru District.
2. Sri. Swamy S/o Late Kyatharaiah,
Aged about 31 years,
Resident of Srirama Block Road,
K.R. Nagar Town, K.R. Nagar,
Mysuru.
3. Sri. B.R. Shankar,
S/o B.P. Rajashekara,
Aged about 41 years,
Residing at No.64, Vinobha Colony,
Hunsur Town, Mysuru District.
... Respondents
5
(By Sri. S.A. Saboor, Advocate for R1;
Smt. P.V. Kalpana, Advocate for R3;
Vide order dated 17.03.2015, notice to
R2 is held sufficient;)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 30.03.2012
passed in MVC No.1028/2011 on the file of Presiding
Officer, Fast Tract Court-III, Mysuru, awarding a
compensation of `4,14,700/- with interest at 6% p.a.,
on `2,33,300/- from the date of petition till the date of
deposit.
In MFA No.9223/2012
BETWEEN:
United India Insurance Co. Ltd.,
Hunsur Branch
Through its Regional Office,
United India Insurance Co., Ltd.,
Krishi Bhavan, 5th Floor,
Nrupatunga Road,
Bengaluru - 560 001.
Rep. by its Manager Smt. Navamany.
...Appellant
(By Sri. K.S. Lakshminarasappa, Advocate
for Sri. B.C. Seetharama Rao, Advocate)
AND:
1. Sri. Chikkegowda
S/o Subbegowda,
Aged about 52 years,
Resident of Hundimala,
Hunsur Taluk,
Mysuru District.
6
2. Sri. Swamy,
S/o Late Kyatharaiah,
Aged about 31 years,
Resident of Srirama Block Road,
K.R. Nagar Town,
K.R. Nagar, Mysuru.
3. Sri. B.R. Shankar,
S/o B.P. Rajashekara,
Aged about 41 years,
Residing at No.64,
Vinobha Colony,
Hunsur Town,
Mysuru District.
... Respondents
(By Sri. S.A. Saboor, Advocate for R1;
Smt. P.V. Kalpana, Advocate for R3;
Vide order dated 17.12.2015, notice to
R2 is held sufficient;)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 30.03.2012
passed in MVC No.1029/2011 on the file of Presiding
Officer, Fast Track Court-III, Mysuru, awarding a
compensation of `1,99,900/- with interest @ 6% p.a.
from the date of petition till the date of deposit.
These appeals coming on for Preliminary Hearing,
this day, RAGHVENDRA S. CHAUHAN J, delivered the
following:
JUDGMENT
These four appeals namely, MFA No.6404/2012, MFA No.6384/2012, MFA No.9222/2012, and MFA 7 No.9223/2012, emanate from the same impugned award i.e., award dated 30.03.2012, passed by the Fast Track Court No.III, MACT, Mysuru, whereby for the injuries suffered by the claimant/appellant- Mr. Chikkegowda in MFA No.6404/2012 and by the claimant/appellant Mr. Thotlegowda, in MFA No.6384/2012, the learned Tribunal has granted different compensation amount to the injured. While the claimant/appellants have filed their respective appeals for enhancement, MFA No.9222/2012 and MFA No.9223/2012 have been filed by the Insurance Company on the issue of liability of the Insurance Company to pay the compensation amount. Since these appeals arise out of the same impugned award, they are being decided by this common judgment.
2. The facts of the case are being taken from MFA No.6404/2012.
8
Briefly, the facts of the case are that on 20.03.2011, at about 11:30 a.m, Mr. Chikkegowda and Mr. Thotelgowada were going on a motorbike on the Hunsur-Rathnapuri road. When they reached near the Kechanakere-Hosakote gate, suddenly, an auto, bearing Registration No.KA-45-1836, being driven rashly, and negligently, came and dashed against the motorbike. Consequently, the rider of the motorbike, Mr. Thotlegowda, and the pillion rider Mr. Chikkegowda fell on the road, and sustained grievous injuries. Immediately, they were shifted to the General Hospital at Hunsur. While, Mr. Chikkegowda suffered a fracture on the shaft of the right leg, Mr. Thotlegowda suffered crush injuries over his right lower limb, from mid-thigh distally with vascular injury. Secondly, he underwent an amputation above the right knee. After recovering from the injuries, both the claimants filed separate claim petitions before the learned Tribunal. By the impugned award dated 30.03.2015, the learned Tribunal granted a 9 compensation of `1,99,900/- (Rupees One Lakh Ninety Nine Thousand and Nine Hundred only) along with interest at the rate of 6% per annum from the date of filing of the petition, till the date of realization to Mr. Chikkegowda; it granted a compensation of `4,14,700/- (Rupees Four Lakh Fourteen Thousand and Seven Hundred only) to Mr. Thotlegowda along with interest at the rate of 6% per annum from the date of filing of the petition, till the date of realization. Hence, these four appeals: two filed by the claimants, and the other two filed by the Insurance Company. In MFA No.6404/2012 - filed by Mr. Chikkegowda:
3. Mr. S.A. Saboor, the learned counsel for the appellant, has raised the following contentions before this Court on behalf of the claimant/appellant -
Mr.Chikkegowda:-
Firstly, the learned Tribunal has erred in assessing the notional monthly income of the claimant 10 as merely `3,500/- per month, though according to this Court, while assessing the monthly income on a notional basis, the learned Tribunal is supposed to treat the Schedule prepared by this Court as a guideline. According to the Schedule, for an accident of the year 2011, the income should be taken as `6,500/- per month. Therefore, the learned Tribunal has erred in taking the notional income as merely `3,500/- per month. Hence, the income needs to be enhanced from `3,500/- to `6,500/- per month.
Secondly, the learned Tribunal has merely considered the physical disability suffered by the injured. According to the testimony of Dr. Kaladagi (P.W.2), Mr. Chikkegowda, has not only suffered the shortening of the right leg by 2 cm., but also suffered the weakening of his muscles over the right leg. According to the learned counsel, since Mr. Chikkegowda, was a farmer and was also working as a 11 mason, his ability to stand, and squat, and his ability to bend and climb steps is adversely affected. Therefore, he finds it difficult to work in the fields, or to engage in construction activities. Despite taking note of the injury suffered by Mr. Chikkegowda, coupled with the testimony of the doctor, the learned Tribunal has taken the disability of the whole body as merely 13%. According to the learned counsel, the learned Tribunal ought to have taken the functional disability as that is the critical fact to be taken while considering the external disability suffered by an injured person. Thus, the disability should be taken as 30% instead of 13%. Hence, the 'future loss of income' should be enhanced by this Court by recalculating the compensation amount.
Thirdly, if the notional monthly income were to be taken as `6,500/-, then the amount payable for "loss of 12 earning during the laid up period", consequently needs to be revised by this Court.
Fourthly, at the time of the accident, the injured was 55 years old. Since the life expectancy is 77 years, he would continue to the suffer pain and agony over next two decades. Yet, the learned Tribunal has granted measly `30,000/- for the category of 'pain and agony'. Therefore, the compensation in the said category should be enhanced by this Court.
Fifthly, due to the accident, the injured will need to undergo medical treatment even in the future. Yet, the learned Tribunal has granted a measly sum of `10,000/- for 'future medical expenses'. Hence, the compensation in the said category also needs to be enhanced by this Court.
Lastly, despite the fact that injured has become physically challenged, inspite of the fact that he would 13 not be able to enjoy the life as a normal human being, yet, not a single penny has been granted to the injured by the learned Tribunal for 'loss of amenities'. Hence, a reasonable amount should be paid to the injured for the said category.
4. Mr. K.S. Lakshminarasappa, the learned counsel for Mr. B. C. Seetharama Rao, the learned counsel for the Insurance Company, has raised the following counter-contentions.
Firstly, the injured did not produce any concrete evidence about the fact that he was earning `10,000/- per month. Thus, the learned Tribunal was justified in taking the notional income as `3,500/- per month. Therefore, there is no need to enhance the monthly income of the injured.
Secondly, the learned Tribunal has noted the fact that according to the Dr. Kaladagi (P.W.3), the injured 14 had suffered the disability of 38% in the right leg. Therefore, the learned Tribunal was justified in taking 1/3rd of the disability as disability of the whole body. Therefore, the learned Tribunal was justified in assessing the physical disability at 13%.
Thirdly, since the monthly income of the injured is merely `3,500/-, the learned Tribunal was justified in granting 'loss of earning' for the laid up period as `7,000/-.
Fourthly, according to the learned counsel, compensation amount need not be a bonanza, but needs to be a "just" amount. Considering the fact that the accident occurred in the year 2011, considering the fact that award was passed in the year 2012, a compensation of `30,000/- for the 'pain and agony' and `10,000/- for the 'future medical expenses' is more than just and reasonable. Moreover, the injured has not produced any concrete evidence to establish the extent 15 of medical expenses that he is likely to incur in future. The learned Tribunal, therefore, was more than generous in granting `10,000/- to the injured for the 'future medical expenses'.
5. However, the learned counsel has frankly conceded that the injured does deserve a reasonable amount for the 'loss of amenities' suffered by him. Therefore, the learned counsel has partly supported the impugned award.
6. Heard the learned counsel for both the parties, and perused the impugned award.
7. Repeatedly, this Court has emphasized that while assessing the notional income of the injured or the deceased, the learned Tribunal should take the Schedule prepared by this Court as a guideline. According to the said Schedule, for an accident in the year 2011, the monthly income notionally is to be taken 16 as `6,500/-. Hence, the learned Tribunal is not justified in assessing the monthly income on a notional basis as merely `3,500/-. Therefore, this Court enhances the monthly income from `3,500/- to `6,500/-.
8. Consequently, the 'loss of earning' for the laid up period is enhanced from `7,000 to `13,000/- (6,500/- x 2 = 13,000/-).
9. According to the evidence of Dr. Kaladagi, (P.W.3), due to the injuries suffered by the appellant, his right leg has been shortened by 2 c.m. and the muscles have become weak. Considering the fact that the injured happens to be a farmer and a mason, obviously, he will find it very difficult to walk and stand, and bend both his feet while carrying out both the work of a farmer and a mason. A daily wage labour requires standing legs. But with one of the legs which is shortened, and weakened, normally the injured would have suffered the functional disability of more than 13% 17 of the whole body. The learned Tribunal has noticed only the physical disability while calculating the compensation and has ignored the functional disability suffered by the injured. Therefore, this Court is of the opinion that the functional disability, in fact, has to be taken as 30%, rather than that of 13% of the whole body.
10. Hence, the 'loss of future income' is recalculated as under:
Loss of Future Income :-
`6,500/- x 12 x 11 x 30/100 = `2,57,400/-
Therefore, the 'loss of future income' is enhanced from `60,000/- to `2,57,400/-.
11. Once the person suffers from a fracture, even if, the fracture is united, yet he continues to suffer the pain at the place of the fracture. Despite the fact that the injured has suffered fracture of the femur bone, inspite of the fact that he will continue to suffer pain in 18 his right femur bone for the rest of his life, the learned Tribunal has granted a compensation of merely a sum of `30,000/- for the category of 'pain and agony'. Therefore, this Court enhances the compensation from `30,000/- to `50,000/- for the category of 'pain and agony'.
12. Learned counsel for the Insurance Company is certainly justified in claiming that the injured did not produce any evidence to indicate the amount he would incur for his future medical expenses. The learned Tribunal has already granted a compensation of `10,000/-. Therefore, this Court is of the opinion that the said amount is a reasonable one. Hence, it does not require any interference by this Court.
13. It is, indeed, trite to state that a person, who suffers from physical and functional disability, is likely to undergo a sense of depression, when a normal human being becomes physically challenged 19 subsequent thereto. Therefore, injury not only adversely affect the physical mobility, but also affects the psychological functioning of the person. Surprisingly, the learned Tribunal has not granted any compensation for 'loss of amenities'. Therefore, this Court grants `50,000/- for 'loss of amenities' suffered by the injured.
14. Hence, for the reasons stated above, the appeal is allowed and the impugned award for Mr. Chikkegowda is modified as under:
As As
Compensation under awarded awarded
Sl.
different Heads by the by this
No.
Tribunal Court
` `
1 Pain and Agony 30,000 50,000
2 Medical Expenses 90,100 90,100
3 Loss of Earnings 7,000 13,000
4 Attendant Charges 1,400 1,400
5 Special Diet 1,400 1,400
6 Future Loss of Income 60,000 2,57,400
7 Future Medical Expenses 10,000 10,000
8 Loss of Amenities - 50,000
Total 1,99,900 4,73,300
20
The compensation is enhanced from `1,99,900/- to `4,73,300/-.
In MFA No.6384/2012 - filed by Mr. Thotlegowda:
15. Mr. S.A. Saboor, the learned counsel for the appellant-Mr. Thotlegowda, has raised the following contentions before this Court:-
Firstly, despite the fact that Mr. Thotlegowda, in his testimony, has claimed that he was an agriculturist, and was engaged in selling Sheet and Tobacco, his testimony with regard to the income has not been believed by the learned Tribunal. Though the injured had claimed that he was earning a monthly income of `15,000/-, the learned Tribunal has taken monthly income, on a notional basis, as merely `4,000/-. Emphasizing on the Schedule prepared by this Court, the learned counsel has pleaded that for an accident of the year 2011, the notional monthly income should 21 have been assessed as `6,500/- but the learned Tribunal has taken merely `4,000/-. Thus, the income has to be enhanced from `4,000/- to `6,500/- per month.
Consequently, the 'loss of earning' for a period of two months, the laid up period, also deserves to be enhanced from `8,000/- to `13,000/- (`6,500/- x 2 = `13,000/-).
Thirdly, although the learned Tribunal has calculated the 'loss of future income' on the basis of the formula and has granted a compensation of `1,81,400/-, the learned tribunal has granted the said amount under the category of 'loss of amenities'. According to the learned counsel, in fact the said compensation amount falls within the category of 'loss of future income' and not in the category of 'loss of amenities'. Therefore, the learned counsel pleads that not a single penny has been paid for the 'loss of 22 amenities' suffered by the injured. He has further emphasized that considering the fact that Mr. Thotlegowda, has suffered amputation of his right leg above the knee, the loss of amenities is to a great extent. Yet, the learned Tribunal has not granted any compensation for the loss of amenities suffered by him.
Fourthly, at the time of the accident, he was 49 years old; he had still two and half decades to go. Inspite of the pain and agony he would suffer for the rest of his life, he is being granted merely `50,000/- in the category of the 'pain and agony'. Therefore, the learned counsel pleads that the amount deserves to be enhanced for the said category.
16. On the other hand, the learned counsel for the Insurance Company, has pleaded that since the appellant, Mr. Thotlegowda could not prove that he was, indeed, earning `15,000/- per month, the learned Tribunal was justified in notionally assessing the 23 monthly income. According to the learned counsel, an income of `4,000/- is a reasonable assessment. Therefore, the notional income assessed by the learned Tribunal should not be interfered by this Court.
Secondly, the learned counsel has frankly conceded that the grant of compensation of `1,81,400/- should have been for the 'loss of future income' as it is based on the Schedule formula. Therefore, he, too, concedes that a reasonable amount has to be paid for the amenities suffered by the injured.
Thirdly, a compensation amount need not be a bonanza but needs to be a "just amount". According to the learned counsel, `50,000/- in the category of the 'pain and agony' is more than sufficient. Therefore, the compensation need not be interfered by this Court. Hence, the learned counsel has partly supported the impugned award.
24
17. Heard the learned counsel for the parties, and perused the impugned award.
18. According to the Schedule prepared by this Court, for an accident of the year 2011, the income notionally should be taken as `6,500/-. Hence, the learned Tribunal is not justified in assessing the monthly income on a notional basis as merely `4,000/-. Therefore, this Court enhances the monthly income from `4,000/- to `6,500/-.
19. Hence, the 'loss of future income' is recalculated as under:
Loss of Future Income :-
`6,500/- x 12 x 9 x 42/100 = `2,94,840/-
Therefore, the 'loss of future income' is enhanced from `1,81,400/- to `2,94,840/-. 25
20. Since the injured was laid up for a period of two months, the 'loss of earning' is enhanced from `8,000 to `13,000/- (6,500/- x 2 = 13,000/-).
21. The learned Tribunal has erred in styling the compensation of `1,81,400/- as the 'loss of amenities', since the said amount has been quantified on the basis of the formula. Obviously, it refers to 'loss of future income'. But meanwhile, the learned Tribunal has not granted any compensation to the injured for the 'loss of amenities' suffered by him. Admittedly, the injured has suffered an amputation of the right leg above the knee. Thus, the injured has metamophasized from a normal human being to a physically challenged one. Therefore, this Court grants a compensation of `50,000/- for the 'loss of amenities' suffered by the injured.
22. Due to amputation suffered by the injured, he would not only suffer the pain and agony during the period of recovery, but also continue to suffer pain and 26 agony for the rest of the life. Yet, the learned Tribunal has granted a measly compensation for the said category. Therefore, this Court enhances the compensation for the 'pain and agony' from `50,000 to `80,000/-.
23. For the reasons stated above, the appeal is allowed, and the impugned award dated 30.03.2012, for Mr. Thotlegowda is modified as under:
As As
Compensation under awarded awarded
Sl.
different Heads by the by this
No.
Tribunal Court
` `
1 Pain and Agony 50,000 80,000
2 Medical Expenses 1,71,300 1,71,300
3 Loss of Earnings 8,000 13,000
4 Attendant Charges 2,000 2,000
5 Special Diet 2,000 2,000
6 Future Loss of Income 1,81,400 2,94,840
8 Loss of Amenities - 50,000
Total 4,14,700 6,13,140
The compensation is enhanced from `4,14,700/- to `6,13,140/-.
27In MFA No.9222/2012 and MFA No.9223/2012
24. Since the same legal contention has been raised by the Insurance Company, both these appeals are dealt with together, by this Court.
25. Mr. K.S. Lakshminarasappa, the learned counsel for Mr. B. C. Seetharama Rao, the learned counsel for the Insurance Company, has challenged the liability of the Insurance Company ostensibly on the ground that although the driver of the auto had a valid driving license for driving LMV, the driving license did not have any specific endorsement for driving the specific type of the vehicle. Hence, the driver cannot be said to possess a valid license. Therefore, the learned Tribunal should have absolved the Insurance Company of its liability to pay the compensation to the injured persons.
28
26. On the other hand, Mr. S.A. Saboor, the learned counsel for the injured persons, has relied on the case of Mukund Dewangan Vs. Oriental Insurance Company Ltd., (AIR 2017 SC 3668), and has pleaded that it is no longer required that the LMV driving license must have specific endorsement, with regard to the type of the vehicle to be driven by the driver. Since the driver possessed a valid license for driving LMV, the learned Tribunal was justified in imposing the liability of paying the compensation on the Insurance Company.
27. Heard the learned counsel for the parties and perused the impugned award.
28. In the case of Mukund Dewangan (Supra), the Hon'ble Supreme Court has settled the issue whether any specific endorsement is required in a LMV driving license or not? And whether the Insurance Company can escape its liability to pay the 29 compensation amount on the ground that the driving license did not contain any specific endorsement? According to the Apex Court, there is no requirement of law that a LMV driving license must bear a specific endorsement with regard to the type of the vehicle to be driven by the driver. In case a driver does have a valid LMV license and in case there is no specific endorsement, even then, the Insurance Company would be liable to pay the compensation.
29. Admittedly, in the present case, the driver of the offending vehicle had a valid LMV license. Therefore, even if a valid license did not have any specific endorsement, the Insurance Company cannot escape its liability to pay the compensation. Therefore, the contention raised by the learned counsel for the Insurance Company is clearly unacceptable.
For the reasons stated above, both the appeals filed by the Insurance company are dismissed. 30
The amount in deposit by the Insurance Company shall be transferred to the learned Tribunal. The Insurance Company is further directed to deposit the compensation amount along with interest at the rate of 6% per annum from the date of filing the petition, till the date of realization. The amount so deposited shall be disbursed to both the injured persons after verifying their identity.
SD/-
JUDGE SD/-
JUDGE Mds/-