Karnataka High Court
Sri. Venugopal vs Sri. P Elanchezhain on 27 October, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.No.5464/2018 (MV-I)
BETWEEN:
SRI. VENUGOPAL
S/O KRISHNAMURTHY,
NOW AGED ABOUT 26 YEARS,
RESIDING AT M.BANDAPALLI VILLAGE,
POOTALAPATTU MANDAL,
CHITTOOR DISTRICT,
ANDHRA PRADESH
... APPELLANT
(BY SRI GOPALKRISHNA.N., ADVOCATE)
AND:
1. SRI. P. ELANCHEZHAIN
S/O D. PANDIAN,
MAJOR IN AGE,
RESIDING AT NO.1/5
LOGARAH COLONY, 4TH STREET,
SALIGRAMAN,
CHENNAI-600093
2. THE NEW INDIA ASSURANCE COMPANY LTD.,
REGIONAL OFFICE,
MISSION ROAD,
BANGALORE-27
REP. BY ITS MANAGER
... RESPONDENTS
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(BY SMT. GEETHA RAJ, ADV. FOR R2;
V/O DTD.11.08.2022 SERVICE OF NOTICE TO
R1 IS DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
23/12/2017, PASSED IN MVC NO.451/2016, ON THE FILE OF
THE XXI ADDITIONAL SMALL CAUSES JUDGE & XIX ACMM.,
MEMBER, MACT, (SCCH-23), BENGALURU, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant under Section 173(1) of Motor Vehicles Act, 1988 (hereinafter referred to as 'MV Act' for short), challenging the judgment and award passed in MVC No.451/2016 dated 23.12.2017 by the MACT and XXI Additional Small Causes Judge (SCCH-
23), Bengaluru seeking enhancement of the compensation.
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2. The undisputed facts are that the claimant has sustained injuries in a road traffic accident that occurred on 28.10.2016 at about 7.30 p.m., at the place of M. Bandapalli Village, Chittor District of Andhra Pradesh when Tata Indigo car bearing No.TN-01-Z-6996 dashed against the motorcycle of the claimant bearing No.AP-03-AH-6275. Therefore, the claimant has filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation.
3. The existence of insurance policy as per contract of insurance is not disputed. Therefore, both owner and insurer of the offending vehicle are jointly and severally liable to pay the compensation. In view thereof, the Insurance Company shall indemnify the owner and pay compensation to the claimant.
4. The Tribunal after considering the facts and circumstances and after appreciating the material on records, has granted a compensation of Rs.8,86,000/- 4 with interest at the rate of 6% p.a. from the date of petition till the date of realization.
5. Being aggrieved by the lesser quantum of compensation, the present appeal is filed.
6. Heard the learned counsel for the petitioner and learned counsel for respondent No.2. Perused the records.
7. Learned counsel for the appellant/claimant submitted that the quantum of compensation awarded by the Tribunal is meager one and prays for enhancement of compensation.
8. On the other hand, learned counsel for the respondent No.2-Insurance Company submitted that the compensation awarded by the Tribunal is just and proper and therefore, prays for dismissal of the appeal.
9. The Tribunal has granted the compensation under various heads as follows:
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Sl.No. Particulars Amount (in.Rs.)
1. Pain and sufferings including 1,00,000.00 mental agony
2. Loss of future earnings 4,86,000.00
3. Loss of amenities of life 50,000.00
4. Disfiguration 50,000.00
5. Purchasing of Crutches or 25,000.00 walker including special shoes
6. Loss of earnings of his 25,000.00 parents
7. Conveyance, nourishment 50,000.00 and nutritious food
8. Loss of marriage prospects 75,000.00
9. Medical expenses 25,000.00 Total 8,86,000.00
10. As per the wound certificate, discharge summary and evidence of PW3-Doctor, the claimant had suffered following injuries:
1. Crushed injury on his right foot.
2. Fracture bit toe separated and medial 1/3rd avulsion.
3. Abrasion on left side of scalp
4. Fracture of 1st, 2nd and 5th metatarsal bone
5. Fracture of medial cuneiform bone were noticed and right foot was amputed.
11. The right leg foot of the claimant was amputed. The Doctor had stated that the claimant had suffered permanent physical disability at 50% to the 6 right limb. The Tribunal has taken 20% of disability and accordingly, awarded the compensation under the head 'loss of earning capacity due to disability'. The claimant was aged 24 years and the appropriate multiplier applicable is correct including the notional income of the claimant as the claimant was Mason by profession.
12. In the present case, it is not disputed that the claimant had suffered amputation of right foot. The claimant was Mason by Profession. Schedule-1 of the Employees Compensation Act, 1923 entry at Sl.Nos.22 and 23 guides that amputation of one foot would be 50% of loss of earning capacity. The disability to be considered under these cases is always functional disability as per the Principles of law laid down in the judgment of Hon'ble Supreme Court in the case of Rajkumar Vs. Ajay Kumar reported in 2011 ACJ 1(SC). Disability to be adopted considering the factors as nature of injuries sustained, profession/avocation/job of the injured. Now, the claimant is not able to do work 7 as Mason by Profession. Therefore, virtually, it amounts 100% earning capacity by that Profession. Therefore, considering the guidelines as per Schedule-I of the EC Act, 50% of the functional disability is to be adopted in the present case towards 'loss of earning capacity due to disability'.
13. This Court in the case of New India Assurance Company Ltd., Vs. Abdul & Others1, has held that in the case of injury suffered like in the present case, additional income has to be added towards loss of future income due to disability as the claimant was working as a mason who was aged 24 years as on the date of the accident. Accordingly, 40% of the income is to be added. Therefore, the loss of future income due to disability is re-assessed and quantified as follows:
Rs.9,000/- + Rs.3,600/- (40% of Rs.9000)=12,600/-. Rs.12,600/- x 50% x 18 x 12 = Rs.13,60,800/-. 1 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018 DD.27.05.2022 8
14. Accordingly, a sum of Rs.13,60,800/- is awarded under the head 'loss of future income due to disability including loss of future prospects in life'.
15. The compensation amount awarded under the other heads as noted above are found to be proper and justified. Hence, it cannot be disturbed.
16. Thus, in all, the claimant is entitled for the following sums:
Sl.No. Particulars Amount (in.Rs.)
1. Pain and sufferings including 1,00,000.00 mental agony
2. Loss of future earnings 13,60,800.00
3. Loss of amenities of life 50,000.00
4. Disfiguration 50,000.00
5. Purchasing of Crutches or 25,000.00 walker including special shoes
6. Loss of earnings of his 25,000.00 parents
7. Conveyance, nourishment 50,000.00 and nutritious food
8. Loss of marriage prospects 75,000.00
9. Medical expenses 25,000.00 Total 17,60,800.00
17. The Tribunal has awarded the compensation of Rs.8,86,000/-, but the appellant/claimant is entitled 9 to total compensation of Rs.17,60,800/-. Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.8,74,800/- (Rs.17,60,800 -
Rs.8,86,000) along with interest at the rate of 6% per annum, in addition to what has been awarded by the Tribunal.
18. Accordingly, I proceed to pass the following:
ORDER i. The appeal is allowed-in-part. ii. The judgment and award passed by the Tribunal in MVC No.451/2016 is hereby modified holding the claimant is entitled for enhanced compensation of Rs.8,74,800/- with interest @ 6% p.a., from the date of petition till its realization, in addition to what has been awarded by the Tribunal. iii. The claimant is not entitled for interest for the delayed period of 89 days in filing the appeal.
iv. Costs made easy.
v. Ordered accordingly.
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vi. The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
Sd/-
JUDGE KA