Karnataka High Court
Smt Shivamma vs Sri Rajesh D on 22 February, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
MISCELLANEOUS FIRST APPEAL NO.8397 OF 2011(MV)
BETWEEN
SMT.SHIVAMMA
W/O NARASAREDDY
AGED ABOUT 31 YEARS,
R/AT, C/O RAJESH, NO.23,
7TH CROSS, ULLAL MAIN ROAD,
MUNESHWARANAGAR
BENGALURU - 560 056.
... APPELLANT
(BY SRI.M.R.VENKATESH NAIDU, ADVOCATE)
AND
1. SRI.RAJESH.D
S/O SRI.DUNDAMADAIAH
R/AT HOSABADAVANE,
BYRAPURA, T.N.PURA TALUK,
MYSORE DISTRICT.
2. HDFC ERGO GENERAL
INSURANCE CO. LTD.
H.M.GENEVA HOUSE,
CUNNINGHAM ROAD,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI.D.VIJAYKUMAR, ADVOCATE FOR R2;
SRI.SIDDARAJU.M, ADVOCATE FOR R1)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT AGAINST THE JUDGMENT AND AWARD DATED
10.03.2011 PASSED IN MVC NO.3672/2010 ON THE FILE OF
XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER,
MACT, BENGALURU CITY, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is at the instance of the claimant seeking enhancement of compensation awarded by the judgment and award dated 10.03.2011 passed in M.V.C No.3672/2010 by the XVI Additional Judge, Motor Accident Claims Tribunal-III, Bengaluru City (for short, hereinafter referred to as 'Tribunal').
2. The claim petition was filed on the allegation that while the claimant was walking in front of H.P Petrol bunk, Mallatahalli, Bengaluru on 06.03.2010 at about 9.00 a.m, a Tata Indica Car bearing registration No.KA55 753 driven by its driver in rash and negligent manner dashed against her. On account of 3 that, she suffered grievous injuries and she was taken to the hospital.
3. Before the MACT, respondent No.1, the owner of the offending vehicle remained exparte and respondent No.2 insurance company contested the proceedings by filing the written statement.
4. During trial, the claimant examined herself as PW1 and an orthopedic surgeon was examined as PW2 and the documents Exhibits P-1 to P-15 were marked. The respondents did not examine any witness and no documents were marked against them.
5. After hearing and perusing the records, the learned Tribunal allowed the claim petition in part by awarding compensation of Rs.6,28,000/- with cost and simple interest at 6% p.a. from the date of the petition till the date of realization.
6. The learned counsel for the appellant/claimant submitted before me that the compensation awarded by the 4 learned Tribunal is on the lower side for the extent of disability suffered by the claimant and therefore, it is liable to be enhanced. He particularly drew my attention to the severe fracture in the hip suffered by the claimant and also high percentage of physical disability and submitted that the learned Tribunal should have taken the functional disability at 100% and higher compensation under the head of loss in earning capacity should have been awarded. He also submitted that PW2 has given clear opinion that she would require surgery for replacement of hip with estimated cost of Rs.1,50,000/- and inspite of the same, the learned Tribunal has awarded only Rs.50,000/- for future medical expenses. He submitted that even under the other heads, the learned Tribunal has awarded a lower sum and therefore, the appeal is required to be allowed by enhancing the compensation.
7. Learned counsel Sri.Vijay Kumar for the insurance company mainly advanced three fold contentions. He submitted that from the assessment of disability made by PW2 himself, 5 the whole body disability cannot exceed beyond 19% and inspite of the same, the learned Tribunal has taken the whole body disability at 40% which is on the higher side and therefore, the same is liable to be set aside. His second contention is that the learned Tribunal has placed reliance on a decision of the Hon'ble Supreme Court to fix the notional income at Rs.5,000/- and therefore, despite this Court generally adopting the monthly notional income of Rs.5,500/- for the year 2010, in this case the same should not be adopted and monthly income of the claimant should be taken only at Rs.5,000/- for calculating the loss in future earning capacity. His last contention is that the future medical expenses estimated at Rs.1,50,000/- by PW2 is without any basis and inspite of lapse of about 12 years since the claimant has not undergone any hip replacement surgery, no amount under the said head should be awarded as she did not require any future surgery. Therefore, he submits that there is no good ground made out to allow the appeal and enhance the compensation and therefore, appeal should be dismissed.
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8. I have given my anxious consideration to the submissions made by learned counsel on both sides and I have carefully perused the records.
9. The learned Tribunal upon consideration of the records and evidence of PW1 and PW2, for the fracture suffered in the hip as well as left humerous has awarded a sum of Rs.50,000/- under the head pain and sufferings and the same appears to be reasonable and maintained.
10. Under the head of medical expenses, the learned Tribunal has awarded Rs.65,000/-. The claimant has produced medical bills under Ex.P10 and prescriptions under Ex.P11 in order to sustain the claim. The learned Tribunal upon appreciation of the same has awarded Rs.65,000/- and therefore, the same is maintained. Under the head of conveyance, nourishment, attendant's charges and diet, the learned Tribunal has awarded a sum of Rs.10,000/-. Since the claimant has suffered severe comminuted fracture of the hip, I 7 am of the view that amount of Rs.10,000/- awarded under the said head is on the lower side and it has to be enhanced to Rs.25,000/- and accordingly, Rs.25,000/- is awarded under the said head.
11. Even though the learned counsel for the insurance company has vaguely contended that the notional income of the claimant should be taken at Rs.5,000/- per month, I am not persuaded to accept the same. Having regard to the various factors, the Karnataka State Legal Services Authority has prepared a chart fixing the notional income for individuals for various years and same is being uniformly adopted by all the Courts in the State. There is no good ground to make a special exception in respect of the current case. Therefore, notional income of the claimant is fixed at Rs.5,500/- per month for accident occurring in the year 2010. Accordingly, the notional income of the claimant is fixed at Rs.5,500/- per month. On account of injuries suffered, the claimant would not have been in a position to do any work for at least five months. 8 Accordingly, she is entitled for a sum of Rs.27,500/- (Rs.5,500 x
5) as compensation towards loss of income during the laid up period of five months.
12. Claimant is certainly entitled, in the nature of the injuries suffered and disability caused, for compensation under the head loss of future income. PW2 has given a detailed evidence on the same. The wound certificate at Ex.P5 shows that claimant has suffered the following injuries:
1. "Abrasion 2 x 2 cm fore head
2. Abrasion 3 x 3 cm right forearm
3. Comminuted fracture right hip and fracture right superior and inferior rami
4. Fracture surgical neck of left humerus"
13. PW2 has examined the claimant for the purpose of assessing disability on 06.11.2010. The learned counsel for insurance company has no doubt criticized the assessment made on 06.11.2010 as being too early as according to him, the situation improves after passage of time. However, evidence shows the serious nature of the fractures suffered namely, in 9 the right hip and left humerus. Therefore, I do not find any substance in the submission of the learned counsel for the insurance company that the assessment of disability was made at an early stage and therefore, it is not correct. PW2 has made the following observation:
" On my examination i.e., on 06.11.10, I found the following:-
- unable to walk without support
- unable to stand alone without support
- unable to work
- Right hip tenderness
- Right lower limb is short at thigh segment (Supratrochenteric) by 2cms Check X- Ray shows:
1. Fracture acetabulam (cup of hip joint) is malunited and secondary osteoarthritis of the hip.
2. Fracture surgical neck of left humerus is malunited.
AS PER THE GUIDELINES OF MINISTRY OF SOCIAL JUSTICE AND EMPOWERMENT BY GOVERNMENT OF INDIA Assessment Of Permanent Physical Disability Of Right Lower Limb
1. Mobility component 90%
2. Stability component 90% 10
3. Additional points 10%
1. MOBILITY COMPONENT a. Active range of movement 90% (Hip 30%, Knee 30%, Ankle 30%) b. Muscle Power 90% (Hip 30%, Knee 30%, Ankle 30%)
1) Active Range of movement - 90% Norma Existing Total loss of Total loss for 30% l range of movements =b/a*100*0.3 range movemen (b)
(a) ts Hip - 30% Flexion- 0-1400 0-400 1000 100/140*100*0.3=21.42=21% Extension (0-120) (0-20) Adduction-
Abduction 0-700 0-200 500 50/70+100*0.3=21.42=21% (0-30) (0-40) Rotation 70/90*100*0.3=23.33=23% Internal- 0-900 0-200 700 External (0-45) (0-45) 21+21+23/3+65/3=21.66=22% Knee - 30% Flexion- 0-1400 0-1000 400 40/140*100*0.3=8.57=9% Extension ANKLE & FOOT-
30%
Plantar - 0-700 NORMAL
(0-50)
Dorsi Flexion
(0-20)
Inversion- 0-500
(0-35)
Eversion
11
(0-15)
Total Loss of movements (Hip, Knee, Ankle) = 22%+9%+0%=31% (a)
b) Muscle Power - a.Normal grade b. Existing grade Loss of 30%(bx0.3) 90% Hip - 30% 5 3 Flexion 5 3 40*0.3=12% Extension 5 3 Adduction 5 3 Abduction 5 3 Internal Rotation 5 3 External Rotation Knee - 30% 5 4 20*0.3=6% Flexion 5 4 Extension Ankle & Foot -30% 5 Dorsi Flexion 5 Plantar 5 NORMAL Inversion 5 Eversion Total Loss of Muscle Power=12%+6%=18% (b) b(90-a) Total loss of % mobility component Telescopic formula = a+-------------=(A) 90 18(90-31) =31+---------------=42.8=43%(A) 90 a= Larger Value=31% b= Smaller Value=18%
2) STABILITY COMPONENT - 90% (Clinical Method of Evaluation) Each activity Scores "10" for inability and "5" for difficult Inability Existing
1. Inablility to walk on plain surface 10% 10% 10%
2. Inability to walk on slope 10% 10%
3. Inability to climb 10% 10% 12
4. Inability to stand on both legs 10% 5%
5. Inability to stand on affected leg 10% 10%
6. Inability to squat 10% 10% . inability 7to sit on cross leg 10% 10%
8. Inability to sit on knees 10%
9. Inability to turn 5% Total % of loss of stability component = Total existing score*0.9=80*0.9=72%(B) B(90-A) Telescopic Formula = A+----------=(c) 90 43(90-72) =72+------------=80.6=81%(C) 90 A= Larger Value=72% B= Smaller Value=43%
3) ADDITIONAL POINTS:
Are added to a maximum of 10 points without Telescopic formula Maximum Existing Percentage Percentage 3% 3%
1. Deformity in functional position of 6%
2. Deformity in non functional position 3%
3. Pain-mild by interfering with function 6%
4. Pain-moderate by interfering with function
5. Pain- severely by interfering with function 9% 9%
6. Partial loss of sensation 6%
7.Total Loss of sensation 9%
8. Shortening - 1/2 "
After 1/2 " shortening for Every 1/2 " shortening is 4% Rt.LL is shortening 4% 4% by 2 cm 1" Shortening
9. Complications Superficial 3% Deep Complication 6% 13 (Maximum 10% only) for added points =10% (D) The Total Permanent Physical Disability from right lower limb= C+D =81% + 10% =91% AND To the whole body, it is about 45% and is permanent ASSESSMENT OF PERMANENT PHYSICAL DISABILITY OF LEFT UPPER LIMB For assessment of the disability of the upper limb is dividend into two components:-
A) ARM COMPONENT B) HAND COMPONENT A) Assessment of loss of arm component consists of
1. Mobility component - 90% (shoulder-30%, Elbow-30%, wrist-
30%)
2. Stability component - 90% (shoulder-30%, Elbow-30%, wrist- 30%)
3. Co-ordinated Activities - 90%
4. Additional points - 10%
1. ASSESSMENT OF MOBILITY COMPONENT a. Active range of movement 90% (Hip 30%, Knee 30%, Ankle 30%) Total Loss for 30% Normal Existing Total loss Total loss for 30% range (a) range of of =b/a*100*0.3 movements movement s
(b) Shoulder - 30% Flexion-Extension 0-2200 0-1000 1200 120/220*100*0.3=16.36=16% Adduction-Abduction 0-1800 0-800 1000 100/180+100*0.3=16.66=17% Internal-External 0-1800 0-900 900 90/180*100*0.3=15% 14 Rotation 16+17+15=48/3=16% ELBOW - 30% 0-1800 NORMAL Flexion-Extension FOREARM- 0-1800 NORMAL Supination-pronation (0-90) (0-90) WRIST-30% 0-1700 NORMAL Palmar-Dorsi Flexion (900) (
800) Total Loss of Mobility Component =16% (a)
2) ASSESSMENT OF STABILITY COMPONENT a. Normal b. Existing grade Loss of 30%(bx0.3) grade SHOULDER -30% Flexion 5 4 20*0.3=6% Extension 5 4 Adduction 5 4 Abduction 5 4 Internal Rotation 5 4 External Rotation 5 4 ELBOW - 30% Flexion 5 NORMAL Extension 5 WRIST -30% Palmar Extension 5 Dorsi Flexion 5 NORMAL Total Loss of Stability Component=6%(b) b(90-a) Total loss of % mobility component Telescopic formula = a+-------------=(A) 90 6(90-16) 15 =16+---------------= 90 20.93=21%(A) a= Larger Value=16% b= Smaller Value=6%
3)ASSESSMENT OF CO-ORDINATED ACTIVITIES:
The Total Value for Co-ordinated activities is 90% and following ten activities, each activity having a value of 9%.
Co-ordinated activities a=Normal Score b=Existing Score
1. Lifting overhead objects remove and 9% 9% Placing at the same place
2.Touching nose with end of the Extremity 9% 0%
3. Eating Indian Style 9% 9%
4. Combing and Plaiting 9% 9%
5. Putting and removing shirt 9% 9%
6.Ablution Indian Style 9% 9%
7. Drinking glass of water 9% 0%
8. Buttoning 9% 9%
9. Tie Nara/Dhoti 9% 9%
10. Writing 9% 9% 9+9+9+9+9+9+9+9=72(b) Total loss of co-ordinate activities = b*0.3=72*0.3=21.6=22%(B) B(90-A) Telescopic Formula = A+----------=(c) 90 21(90-22) =22+------------=37.86=38%(C) 90 A= Larger Value=22% B= Smaller Value=21%
4) ADDITIONAL POINTS:
Total of 10% weightage can be directed to the disability without Telescopic Formula 16 Maximum Existing Percentage Percentage
1)PAIN- Mild 3% Moderate 6% 6% Severe 9%
2) DEFORMITY- Functional positions 3% 9% Non Functional positions 6% 3%
3) MAL ALIGNMENT - Functional positions 6% Non Functional positions
4) CONTRACTURES- 6% 3%
5) INFECTIONS - Superficial 6% Deep 6%
6) COSMETIC APPEARANCE-
7) SHORTENING - First 1/2" inch NIL
> 1 inch for every inch 2%
8) DOMINANT EXTREMITY-
(Maximum 10% only) for added points =9% (D) The Total Permanent Physical Disability from Left Upper Limb= C+D =38% + 9% =47% AND To the whole body, it is about 15% and is permanent Thus the Total whole body disability from right lower limb and left upper limb=45%+15%=60% In view of the above disability from right lower limb and left upper limp to the injured and that the injured was aged about 30 years, she is 17 unable to do any manual work or Coolie work or any house hold work and as such she is suffering from 100% functional disability.
She was advised to come for another surgery for right arthrities total hip arthroplasty which will cost around Rs.1,50,00/- (Rupees One lakh fifty thousand) I am herewith producing the following documents:-
1. Case sheet
2. X-rays (8 in Nos.)
3. Clinical notes
4. Estimation cost for the future surgery."
14. The learned Member of MACT had seen the claimant on 20.12.2010 when she was present before the Court for the purpose of cross examination. She has made the following note in the deposition:
"(Witness is finding difficult to walk and she is assisted by two persons and she is giving evidence by sitting)"
15. No doubt PW2 has been extensively cross-examined by the learned counsel for the insurance company. However, I do not find any thing elicited in the cross- examination so as to disbelieve or doubt the assessment made by PW2-Orthopedic 18 surgeon. As per the assessment made by PW2, the whole body disability is 60%. For the purpose of awarding compensation under the head of future loss in the earning capacity, functional disability resulting from the physical disability is very important. The claimant /appellant is a lady aged 30 years at the time of the accident and she was in the prime of her youth at that time. From the observation made by the learned member of the MACT and also the clinical assessment made by PW2, it is apparent that the accident resulting in fracture had severally reduced the capacity of the claimant to move about leave alone working for her livelihood. In that view of the matter, Courts should be guided by the following principle:
"xxx But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a 19 paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity."
(JAGADISH v. MOHAN AND OTHERS (2018) 4 SCC 571 para 14)
16. It is necessary to observe that the approach of the Tribunal as well as this Court in this class of cases should be such as to place higher value to the dignity of life. The assessment of the loss in the earning capacity cannot be done in routine and mechanical manner. Once the evidence including that of medical expert shows that the mobility of the claimant is severely affected, it goes without saying that the person's value in the labour market including potential for livelihood is totally wiped out. In that view of the matter, the functional disability and loss in the earning capacity taken at 40% by the learned Tribunal is extremely on the lower side. In the facts and circumstances of the case, it is required to be fixed at 100%. The recent line of decision of the Hon'ble Supreme Court in the case of ERUDHAYA PRIYA v. STATE EXPRESS TRANSPORT 20 CORPORATION LTD. (2020 SCC Online 601), SANDEEP KHANUJA v. ATUL DANDE & ANOTHER [(2017) 3 SCC 351], and JAGADISH v. MOHAN AND OTHERS [(2018) 4 SCC 571], clearly suggests that loss of future prospectus is also required to be added to the established income of the claimant in this case. Since the claimant was aged 30 years, 40% of the established income is required to be added by following the decisions of the Constitution Bench of the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LTD. v. PRANAY SETHI AND OTHERS [AIR 2017 SC 5157]. Thus, loss in earning capacity is recomputed as under:
Rs.5,500+40%x12x17= Rs.15,70,800/-
17. The claimant is entitled to be awarded compensation under the head of loss of amenities as well. The claimant is a lady aged about 30 years having full of expectation from life. The accident resulting in severe damage to her hip bone has taken away the avenue of all kinds of happiness to her on account of restricted mobility and her family life is also 21 severely affected. Notwithstanding the fact that the compensation is awarded under the head of loss in earning capacity by following multiplier method, the importance to provide compensation for loss of amenities for the claimant who is a lady aged about 30 years cannot be down played. Taking into all relevant consideration, I am of the view that a sum of Rs.75,000/- is required to be awarded under the head of loss of amenities in life.
18. The Orthopedic surgeon-PW2 has stated that she requires to undergo total replacement of hip surgery and he has given his assessment for such surgery in the year 2010. The estimation of cost of surgery will not come on the lower side as the years advance. His assessment is about Rs.1,45,000/- at the least in the year 2010. Therefore, a sum of Rs.1,45,000/- is awarded towards future medical expense.
19. Thus, the claimant is entitled for following compensation:
22
As awarded As awarded by the by this Court Heads Tribunal (in Rs.) (in Rs.) Pain and suffering 50,000.00 50,000.00 Loss of income during 20,000.00 27,500.00 treatment period Medical expenses 65,000.00 65,000.00 Future loss of earning 4,08,000.00 15,70,800.00 Loss of amenities 25,000.00 75,000.00 Conveyance, nourishment, 10,000.00 25,000.00 Attendant's charges & diet Future medical expenses 50,000.00 1,45,000.00 Total 6,28,000.00 19,58,300.00
20. The Tribunal has awarded Rs.6,28,000/- and thus, he is entitled for enhanced compensation of Rs.13,30,300/- (Rs.19,58,300 - Rs.6,28,000) with interest at 6% p.a. from the date of petition till the date of payment. Insofar as future medical expenses of Rs.1,45,000/- is concerned, the claimant is not entitled for any interest.
21. Accordingly, I pass the following 23 ORDER i. The appeal is allowed in part;
ii. The enhanced amount shall be deposited by the insurance company before the learned MACT within six weeks from the date of receipt of this order, and iii. The records shall be transmitted to the learned MACT forthwith.
Sd/-
JUDGE UN