Karnataka High Court
Kishore Kumar S C vs M/S Ubrani Tours & Travels on 9 November, 2017
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
MISCELLANEOUS FIRST APPEAL NO.641 OF 2015 [MV]
BETWEEN:
KISHORE KUMAR S.C.,
S/O CHIKKABASAPPA
AGED ABOUT 23 YEARS
No.127/B, 11TH MAIN,
NAGARABHAVI 9TH BLOCK
2ND PHASE, BANGALORE
PERMANENT R/O No.62/1,
SOMANATHAPURA
K.R.PET TALUK, MANDYA DISTRICT. ..APPELLANT
(BY SRI C.PUTTASWAMY, ADV.)
AND:
1. M/s UBRANI TOURS & TRAVELS
No.47/4, 1ST CROSS,
CAMBRIDGE LAYOUT,
HALSOOR, BANGALORE-560008,
(OWNER OF CAR No.KA-03-AA-4381)
2. RELIANCE GENERAL INSURANCE
CO. LTD., DIVISIONAL OFFICE,
CENTENARY BUILDING
M.G.ROAD, BANGALORE-01,
REP. BY ITS MANAGER. ...RESPONDENTS
(BY SRI H.N.KESHAVA PRASHANTH, ADV. FOR R-1;
NOTICE TO R-1 DISPENSED WITH VIDE COURT ORDER DATED
02.09.2016.)
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This M.F.A. is filed under section 173(1) of M.V.Act
against the Judgment and Award dated 15.10.2014
passed in MVC No.923/2013 on the file of the 8th
Additional Small Causes Judge, 33rd ACMM, Member,
MACT, Bangalore, partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
This M.F.A. coming on for admission, this day, the
court delivered the following:
JUDGMENT
The appellant has filed this appeal seeking enhancement of compensation against the Judgment and Award dated 15.10.2014 passed by the VIII Additional Small Causes Judge and the MACT (SCCH-5) at Bengaluru in MVC No.923/2013.
2. It is the case of the appellant that he had sustained injuries in a motor vehicle accident that occurred on 26.09.2012. The appellant had filed claim petition before the Tribunal. The Tribunal has awarded 3 compensation of `1,38,900/-. Aggrieved by the same, the appellant has filed this appeal.
3. The grounds urged by the appellant counsel is that the Tribunal committed an error in not awarding compensation under the head loss of future income.
4. It is the case of the appellant that he was working as a technical engineer and also doing newspaper distributing work and produced the salary slip to show his income to an extent of `12,000/- per month plus `1,500/- per month.
5. The appellant had suffered compound Type III B fracture middle 1/3rd - distal 1/3rd tibia and fibula (both bones) of left leg. He was inpatient for 10 days in KIMS hospital where he was treated for surgery using implants. 4
6. Learned counsel for the appellant further submits that the compensation awarded by the Tribunal under other heads is on the lower side. He seeks enhancement on the basis of the medical reports and also the evidence of PW-2. He also submits that he has examined PW-2 who has deposed that the appellant has suffered 29.30% limb disability and the Tribunal has assessed the whole body disability at 10%.
7. Learned counsel for the appellant emphasizes for award of compensation under the head of loss of future income by relying on the judgment of Hon'ble Supreme Court in the case of 'SANDEEP KHANUJA versus ATUL DANDE AND ANOTHER' reported in 2017 ACJ 979 and the judgment of this Court in the case of 'DR.YASHWANTH DONGRE versus SALMAN RASHEED AND OTHERS' reported in ILR 2015 KAR 167. It is his submission that there is no reduction in income relating to the percentage 5 of disability, and in the competitive field there are chances of losing job. Considering the same, compensation has to be awarded.
8. In the case referred, the Hon'ble Supreme Court has examined involvement of a Chartered Accountant in discharging the duty and further held that injury reduced the performance to some extent and the same has to be assessed for the purpose of loss of future income. Similarly, this Court also held that 10% of disability has to be awarded under the head of disability.
9. The learned counsel for Insurance Company submitted that judgment cited by the appellant is not applicable in the facts and circumstances of the case. The claimant has stated that he was working as a technical engineer and daily newspaper distributing work but he has not produced any evidence to show that he has taken license to distribute the newspaper. The 6 employer is also not examined but the salary certificate has been produced. As far as awarding compensation under the head loss of future income or disability, only in case where the claimants prove the disability in earning, compensation has to be awarded. In this case, considering the nature of work there cannot be any reduction in salary. Hence, the judgment does not apply to the case on hand.
10. The learned counsel for the Insurance Company relies on the judgment of the Hon'ble Supreme Court in the case of 'RAJ KUMAR versus AJAY KUMAR AND ANOTHER' reported in (2011) 1 SCC 343 and submits that unless it is proved that there is deficiency of reduction in income the claimant is not entitled for any compensation in future income.
11. Heard the learned counsel for the respective parties and gone through the lower court records. 7
12. The much emphasize made by the appellant is with regard to award of compensation under the head of future income and disability. In support of his case, the learned counsel for the appellant submits that nature of work of the claimant as technical engineer requires moving from place to place in order to attend the technical work, etc. It is not a sedentary job to work in a particular place between chair and table. Under these circumstances, he has to face loss of opportunity and he shall not be able to move along with other persons by limping. To substantiate the same, the learned counsel refers the salary certificate of the appellant in which `2,000/- is paid as petrol charges. That shows that he has to move from place to place and also to reach the work spot he has to cover some distance.
13. In the background of all these facts referred before this Court, after going through the claim petition 8 and also the evidence, though the claimant has stated that he is a technical engineer but what type of job he does, is not forthcoming. Merely stating that he is a technical engineer cannot be accepted. The fact that a person claiming to be a technical engineer was also doing newspaper distributing work, cannot be accepted. Normally, an engineering job itself occupies major portion of his time and there cannot be any scope for distributing the newspaper. Under these circumstances and on the basis of pleadings in the claim petition and evidence though it is taken that he is a technical engineer but distributing newspaper cannot be taken for the purpose of awarding future income.
14. The Hon'ble Supreme Court in SANDEEP KHANUJA's referred to above held as under:
"15. ...... An important feature and aspect which is ignored by the MACT is that appellant is a professional Chartered 9 Accountant. To do this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practise up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is not only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age......"
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15. The Hon'ble Supreme Court in the case of 'ARVID KUMAR MISHRA versus NEW INDIA ASSURANCE CO. LTD. AND ANOTHER' reported in 2010 ACJ 2867 (SC) has held as under:
"(7) We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of lifetime's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own 11 facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum.
The conventional basis of assessing compensation in personal injury cases - and that is now a recognized mode as to the proper measure of compensation - is taking an appropriate multiplier of an appropriate multiplicand."
16. From the judgments referred, it makes clear that as far as possible, the change caused to the physical body has to be compensated in order to restore him back to discharge his effective work.
17. This Court also in ILR 2015 KAR 167 has held as under:
"16. It may happen in some cases, though the claimant is in a position to work physically after the accident as before, the after effects of the accident may make it more difficult for him to find work or to retain his work. There would be some degree of physical 12 handicap. In these cases, the Court may have to add a suitable sum by way of damages having regard to this aspect."
18. In the above referred judgment, this Court held that even if the injured person is recovered, he would suffer some degree of handicap for which he has to be compensated.
19. In the light of the above, it is appropriate to hold that the claimants who do not suffer any disability in case if they are working in private establishments, they necessarily have to be awarded for not loss of income but loss of energy, scope and opportunity. It also cannot be ruled out that an injured person may lose some temperment in performing his job.
20. Under these circumstances it is held that though the claimant failed to establish the reduction of any income by virtue of accident, he has to be compensated 13 to some extent. In the above referred judgment of this Court, it is held that depending upon each case 10% of reduced earning capacity has to be awarded as suitable sum in respect of reduced eligibility of employment or handicap in the employment market.
21. In the instant case, though the claimant has stated that he is a technical engineer, but in support of his occupation and avocation, he has not produced anything. Nevertheless, he is required to be awarded compensation under the head of loss of disability. The said compensation has to be extended in the instant case for the reason that in the salary certificate he is paid `2,000/- for petrol charges and his age is 29 years.
22. The submission of the learned counsel for the respondent that the appellant could perform in sedentary manner cannot be accepted because there is no evidence placed by the respondent or the claimant. He refers to 14 the judgment of the Hon'ble Supreme Court in RAJ KUMAR's case and submits that despite of having permanent disability, the claimant could effectively carry the activities and function which he was earlier carrying and further submits that for awarding compensation under the said head, the percentage of disability has to be assessed. He states that the nature of disability actually has to come in the way of avocation. The submission of the respondent is well founded.
23. In the light of the said judgment referred by the respondent again the case of the claimant has been examined and found that as per doctor's evidence the appellant has suffered 10% disability. This percentage of disability cannot affect the avocation of the appellant. All these facts were not placed before the Court. That is the ground on which it is held that the appellant is not entitled for compensation under the head loss of income 15 due to disability. However, taking note of the fact that he has suffered 10% disability and grievous injuries and his avocation is to move from place to place and to recover, he has to be compensated and awarded some amount. Hence, a sum of `1,00,000/- is awarded globally without interest in addition to what is awarded by the Tribunal. This cannot be taken as a precedent in any case.
24. Accordingly, the appeal is allowed in part.
Sd/-
JUDGE RV