Karnataka High Court
T G Asheek vs B Shantharama Shetty on 3 July, 2019
Bench: B.V.Nagarathna, K.Natarajan
-: 1 :-
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 03RD DAY OF JULY, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
M.F.A. No.4466/2014 (MV-I)
BETWEEN:
T.G. ASHEEK,
AGED ABOUT 28 YEARS,
S/O. T.B. GUDDAPPA,
R/O. JAVALLI THEDOOR POST,
JAVALLI VILLAGE, THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT. ... APPELLANT
(BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE)
AND:
1. B. SHANTHARAMA SHETTY
S/O. B. UMASHANKAR KUMADA SHETTY,
AGE: MAJOR,
R/O. BARKUR POST,
KACHUR VILLAGE,
UDUPI TALUK AND DISTRICT - 576 101.
2. UNITED INDIA INSURANCE CO. LTD.,
UDAYAVANI BUILDING,
MILE FACTORY ROAD,
MANIPAL - 576 104
REP: BY ITS MANAGER. ... RESPONDENTS
(BY SRI K.S. LAKSHMINARASAPPA, ADVOCATE FOR
SRI B.C. SEETHARAMA RAO, ADVOCATE FOR R-2;
R-1 - NOTICE DISPENSED WITH V/O. DATED 30/04/2015)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED
29.03.2014 PASSED IN MVC NO.523/2011 ON THE FILE OF THE
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ADDITIONAL DISTRICT AND SESSIONS JUDGE, MACT, UDUPI,
(SITTING AT KUNDAPURA), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:-
JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The injured/claimant has preferred this appeal assailing the judgment and award passed by the Addl. District and Sessions Judge & MACT, Udupi, sitting at Kundapura (hereinafter referred to as "the Tribunal" for the sake of convenience), dated 29/03/2014 in MVC.No.523/2011.
3. It is the case of the appellant/claimant that he sustained grievous injuries in a road traffic accident that occurred on 21/02/2011, at about 12.30 p.m. while he was proceeding on a motorcycle bearing No.KA-14/X:8583 from Mandarti towards Udupi. That when he reached Neerujuddu Heggunje, a lorry bearing No.KA 20/C:0237 was driven in a rash and negligent manner endangering -: 3 :- human life and dashed against the motorcycle from the hind side. As a result, the claimant fell down and sustained grievous injuries. He was taken to KMC Hospital where he was treated as an inpatient from 21/02/2011 to 18/04/2011. According to the claimant, both tibia and femur of his right leg sustained grievous injuries and he underwent surgeries and skin grafting was also done. Thereafter, he was discharged from KMC Hospital on 18/04/2011 with external appliances affixed to the right leg. Contending that he was unable to work for about a period of two to three years as he had become permanently disabled and that he was earning a sum of Rs.12,000/- per month as an electrician, he filed the claim petition seeking compensation of Rs.35,00,000/- on various heads.
4. In response to the claim petition, respondent No.1 did not appear and was placed ex parte, while respondent No.2 appeared and filed its statement of objections seeking dismissal of the claim petition by denying the averments made in the claim petition, contending that there was no negligence on the part of the lorry in causing the accident. All the material averments -: 4 :- made in the claim petition were denied and the insurance company sought dismissal of the claim petition.
5. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
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6. In support of his case, the claimant examined himself as PW.1 and two other witnesses were examined i.e., Chetan, record clerk of KMC Hospital as PW.2 and mother of the claimant as PW.3 and Dr. Madhusudan Naik was examined as PW.4. The claimant produced twenty seven documents which were marked as Exs.P-1 to P-27, while the respondent/insurer did not let-in any evidence. On the basis of the evidence on record, the trial Court recorded a finding in the affirmative insofar as issue No.1 is concerned and answered issue No.6 partly in the affirmative and issue Nos.2 to 5 were answered in the negative and awarded compensation of Rs.15,89,961/- rounded off to Rs.15,90,000/- with interest at the rate of 6% p.a. from the date of claim petition till realisation. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimant has preferred this appeal.
7. We have heard learned counsel for the appellant and learned counsel for the respondent/insurer -: 6 :- and perused the material on record as well as original lower Court record.
8. Learned counsel for the appellant contended that the award of compensation by the Tribunal on the head of medical expenses is meager and on the lower side. He contended that the claimant was an electrician and even according to Ex.P-20, he was earning a sum of Rs.12,000/- per month, but the Tribunal has disbelieved the said document and assessed notional income of Rs.9,000/- only per month, which is contrary to the evidence on record. He further submitted that the nature of the injuries sustained by the claimant are such that it must be construed to be an amputation of the right lower limb and therefore, 100% ought to be assessed as the functional disability insofar as the claimant is concerned, but the Tribunal has assessed the disability only at 50% although the doctor PW.4 had stated that there was 74% whole body disability. In support of this submission, appellant's counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of Raj Kumar vs. Ajay Kumar & another [(2011)1 SCC 343] (Raj Kumar). He submitted that the assessment of disability -: 7 :- has to be in relation to the nature of avocation carried on by the injured/claimant and it cannot be on a stereo typed basis. He next contended that the award of compensation on the head of loss of income during the laid up period is also meager having regard to the notional income and the period assessed by the Tribunal is only one year and it shall be atleast eighteen months. He further submitted that the award of compensation on the heads pain and suffering, loss of marital prospects, incidental charges, future medical expenses and loss of amenities are also on the lower side and the same may be enhanced.
9. Per contra, learned counsel for the insurance company supported the judgment and award of the Tribunal and contended that this is not a case of amputation of the right lower limb. No doubt, the right lower limb of the claimant sustained grievous injuries, but no amputation has been done. But in due course of time, the claimant would be able to walk and hence, the Tribunal has rightly assessed the percentage of disability at 50%, which would not call for any interference. He further submitted that in the absence of the author of Ex.P-20 being examined, the said document has been rightly -: 8 :- disbelieved by the Tribunal and notional income has been assessed at Rs.9,000/- which is just and proper, having regard to the fact that the accident occurred on 21/02/2011. He also submitted that the award of compensation on all the other heads are appropriate and it would not call for any modification at the hands of this Court.
10. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(i) Whether the compensation awarded by the Tribunal would call for any enhancement?
(ii) What order?
11. The fact that the appellant/claimant sustained grievous injuries in a road traffic accident that occurred on 21/02/2011 when the offending lorry bearing No.KA-20/C- 0237 dashed against the motorcycle on which the appellant/claimant was riding has been established. The controversy herein is with regard to the compensation awarded to the claimant on the basis of the injuries sustained by him in the accident. In support of the fact that the appellant had sustained injuries in the accident, -: 9 :- the appellant has produced Ex.P-4 which is the wound certificate, Ex.P-12 photograph, Exs.P-13 to P-17 inpatient bills, medical bills and receipt, Ex.P-18 photograph, Ex.P- 19 treatment certificate, Ex.P-21 discharge bill, Ex.P-22 medical bills, Ex.P-23 doctor's advice certificate, Ex.P-24 receipt, Ex.P-25 medical record, P-26 disability certificate issued by the department of Government of Karnataka and Ex.P-27 X-ray. On a cumulative consideration of the said documents, it is established that serious injuries were sustained by the appellant/claimant in the accident. Though the injuries did not result in amputation of the right lower limb, according to learned counsel for the appellant, the condition of the right lower limb is so bad that it is worse than a case of amputation. He contended that the appellant is unable walk, perform his daily duties or routine work nor is in a position to earn his livelihood and the same is established not only by production of medical records, but by adducing oral evidence also let-in by PWs.1 to 4. He submitted that though there is medical evidence to the effect that there is 74% disability to the right lower limb, the Tribunal has assessed the permanent disability at only 50%. In this regard, on the assessment -: 10 :- of disability, learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in the case of Raj Kumar (supra) and paragraph Nos.12, 13, 14 and 15 were read and the summary at paragraph No.19 was emphasized. The same are extracted as under:
"12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such -: 11 :- permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and -: 12 :- he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
x x x -: 13 :-
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
On a close reading of the above, it becomes clear that in the case of an amputation the loss of future earning -: 14 :- capacity is assessed at 100%, in which event, no compensation on the head of loss of amenities or loss of expectation of life would be awarded by applying the above judgment by the Hon'ble Supreme Court. In the instant case, it is no doubt a case of permanent disability, but the extent of disability as deposed by the doctor is 74% and the same is supported by Ex.P-26, which is the disability certificate produced by the appellant. But no reason has been assigned by the Tribunal as to why the extent of permanent disability has been assessed at only 50% when the medical evidence and also the disability certificate categorically state that the extent of permanent disability suffered by the appellant is 74%. At the same time, we also cannot agree with the learned counsel for the appellant to assess the disability at 100% even though there is a disability for the appellant to carry on his life and duties. In the circumstances, we assess the extent of permanent disability in the instant case at 74% only as per the doctor's evidence.
12. As far as income of the claimant is concerned, as per Ex.P-20 salary certificate, which has been issued by the employer of the claimant, he was earning Rs.12,000/- -: 15 :- per month. The Tribunal has assessed the notional income at Rs.9,000/- per month by not placing reliance on Ex.P-20 as the author of the said document was not examined before the Tribunal. We find substance in the reasons assigned by the Tribunal, but at the same time, we find that the assessment of notional income at Rs.9,000/- per month is on the lower side. In the circumstances, we assess the notional income at Rs.10,000/- per month and consequently, keeping in mind the age of the claimant to be 23 years and the appropriate multiplier being 18, compensation on the head of loss of earning capacity is Rs.15,98,400/- (10,000x12x18x74/100). Since we have assessed the notional income at Rx.10,000/- per month and keeping in mind the severe nature of the injuries caused to the right lower limb, the loss of income during the laid up period of eighteen months (one and a half years) would be Rs.1,80,000/-.
13. Further, the medical expenses of Rs.2,53,961/- awarded by the Tribunal is retained. Having regard to the gravity of the injuries, the award of compensation towards pain and suffering is enhanced to Rs.1,00,000/- and towards loss of marriage prospects Rs.50,000/- awarded -: 16 :- by the Tribunal is retained. Having regard to the fact that the claimant was an inpatient for 72 days, a sum of Rs.1,00,000/- is awarded towards incidental charges including attendant charges, conveyance charges, food and nourishment. A sum of Rs.1,50,000/- is awarded towards future medical expenses as has been awarded by the Tribunal and towards loss of amenities a sum of Rs.2,00,000/- is awarded instead of Rs.20,000/- awarded by the Tribunal as we have assessed permanent disability at 74% of the whole body and not 100%, as contended by appellant's counsel, but by bearing in mind the young age of the claimant, being only 23 years. Thus, the re- assessed compensation is as under:
Towards Amount
Loss of earning capacity Rs.15,98,400/-
Medical Expenses(retained) Rs. 2,53,961/-
Loss of income during laid up Rs. 1,80,000/-
period
Pain and suffering Rs. 1,00,000/-
Loss of Marriage prospects Rs. 50,000/-
Incidental charges, attendant
charges, conveyance charges,
food and nourishment Rs. 1,00,000/-
Future medical expenses
(retained) Rs. 1,50,000/-
Loss of amenities Rs. 2,00,000/-
TOTAL Rs.26,32,361/-
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The total compensation is Rs.26,32,361/- and the same is rounded off to Rs.26,32,360/-, which shall carry interest at the rate of 6% p.a. from the date of claim petition till realisation.
14. Thus, the enhanced compensation is Rs.10,42,400/-. 75% of the enhanced compensation shall be deposited in any nationalized bank or post office for an initial period of ten years. The claimant shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to him after due identification.
15. In the result, the appeal filed by the appellant/claimant is allowed in part.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE S*