Karnataka High Court
Shri.Nur Ahamad Abdulsab Kanavi vs Shri.Abdul Munaf S/O. Mahammad Hussain ... on 30 August, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:9752
MFA No. 100308 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.100308/2021(MV-I)
BETWEEN:
SHRI NUR AHAMAD ABDULSAB KANAVI,
AGE: 34 YEARS, OCC: GOUNDI,
REPRESENTED BY HIS WIFE AS NEXT FRIEND
SHAMSHADBI W/O. NUR AHAMAD KANAVI,
AGE: 29 YEARS, OCC: HOUSEHOLD,
R/O:MULATHALLI, TQ: HANGAL,
DIST: HAVERI - 581148.
...APPELLANT
(BY SRI B. M. PATIL, ADVOCATE)
AND:
1. SHRI ABDUL MUNAF
S/O. MAHAMMAD HUSSAIN MELMURI,
AGE : MAJOR, OCC: BUSINESS,
Digitally R/O: FATHE NAGAR, 1ST CROSS,
signed by
SUJATA HEGGERI, HUBBALLI,
SUBHASH
PAMMAR DT: DHARWAD-580024.
(OWNER OF TATA GOODS BEARING NO.KA-16/A-
6260).
2. THE MANAGER (LEGAL CLAIM),
CHOLAMANDALAM MS GENERAL INSURANCE
CO.LTD., 1ST FLOOR,
KALABURGI COMPLEX,
DESHAPANDE NAGAR,
HUBBALLI-580029.
(POLICY NO.3379/01023941/000/00
VALID FROM 02-04-2014 TO 01-04-2015).
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NC: 2023:KHC-D:9752
MFA No. 100308 of 2021
3. SHRI BASAVARAJ
S/O. MALLESHAPPA HARAPANAHALLI,
AGE: MAJOR, OCC: BUSINESS
R/O: CHRISTIN COLONY,
2ND CROSS GANTI KERI,
HUBBALLI-580029.
(OWNER OF VEHICLE NO.KA-16/A-6260).
...RESPONDENTS
(BY SRI SUBHASH J. BADDI, ADVOCATE FOR R2;
NOTICE TO R1 IS DISPENSED WITH;
R3 IS SERVED)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, 1988, PRAYING TO ENHANCE THE
COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD
IN M.V.C.NO.111/2015 DATED 04.12.2020 BY THE COURT OF
ADDITIONAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT,
HANGAL, AT HANGAL IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
ORDER
The appeal is filed by the claimant against the Judgment and Award passed in MVC No.111/2015 dated 04.12.2020 passed by the Addl. Senior Civil Judge and Addl. MACT, Hangal, at Hangal, seeking enhancement of compensation.
2. Heard the learned counsel for the appellant and respondents and perused the records. -3-
NC: 2023:KHC-D:9752 MFA No. 100308 of 2021
3. Brief facts of the case are that on 24.06.2014, when the claimant was riding motor cycle bearing No.KA- 02/EC-3487 from Kashambi village, the driver of goods vehicle bearing No.KA-16/A-6260 came in a rash and negligent manner and dashed the petitioner. The petitioner sustained grievous injuries and facture and he was admitted to hospital. Claim petition was filed by the claimant and the Tribunal has partly allowed the claim petition and awarded a sum of Rs.6,78,000/- with 6% interest p.a.
4. The learned counsel for the appellant/claimant submitted that the claimant had sustained grievous fracture to the skull, resulting in neuro psychological disorders and affecting the motor functions. The claimant is not able to work as Goundy as he was doing before the accident. Therefore, it amounts to 100% functional disability. But the Tribunal has taken only 20% as functional disability and granted meager amount of -4- NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 compensation. Therefore, prays for enhancement of compensation.
5. On the other hand, learned counsel for the Insurance Company submitted that the Tribunal has correctly assessed that the claimant has suffered only 20% as permanent physical disability and that is considered as a functional disability and accordingly, awarded compensation which needs no interference. He also refers to the evidence of the doctors examined before the Tribunal and also examined during the pendency of the appeal before the Additional Registrar General as per direction of this Court that without reference to Medical records, the doctors are of the opinion that permanent partial disability is 78%. Therefore, it is not a case of 50% of permanent physical disability and justified the Judgment and Award passed by the Tribunal.
6. The Tribunal, after holding 20% as functional disability, accordingly, granted compensation by considering other parameters as under: -5-
NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 Sl. Heads. Amount No. in Rs.
1. Towards pain and suffering. 60,000
2. Towards medical expenses. 1,96,938
3. Towards diet and attendant 40,000 charges.
4. Towards loss of income 45,000 during laid up period
5. Towards loss of future 3,06,000 earning capacity
6. Towards loss of amenities 30,000 TOTAL Rs.6,77,938/-
Rounded off to Rs.6,78,000/-
7. Learned counsel for the appellant filed an application seeking amendment to the grounds raised in the appeal memo that the claimant has suffered 50% of permanent disability, but by amendment, he is seeking for increasing the percentage of permanent physical disability at 100%, which is opposed by the counsel for the respondents on the ground that it alters the nature of proceeding and it is submitted that the amendment is not permissible. The Tribunal, by considering the monthly -6- NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 income as Rs.7,500/- and applying relevant multiplier according to the age of the claimant and considering 20% of disability, granted a compensation of Rs.3,06,000/- under the head loss of earning capacity due to disability and also on other heads.
8. Ex.P5 is the wound certificate which proves that the claimant has suffered the following injuries:
i) Side prietotemporal depressed skull fracture with parietal and evidence of haemorrhagic contusion left tempore partial region.
ii) Communited depressed fracture of left parietal bone.
iii) Fracture of temporal bone with extension into squamous and mastoid part of temporal bone.
iv) Middle ear cavity on left side and fracture of left petrous bone.
v) Soft tissue haematoma noted in left temporo-
parietal.
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 Injury Nos.1 and 2 are grievous in nature. Initially, the claimant was admitted to S.D.M.College Hospital, Dharwad, for treatment.
9. It is in the evidence of doctor-PW.2 that on physical and clinical examination of claimant, he found following deformities and disorders affecting the brain functioning resulting in neuro psychological disorder. P.W.2-doctor has given his opinion as under:
I. Intellectual disability : After assessing there is decrease in IQ(80-90), Speech is slurred which was tested under normal condition and also incomprehensible.
II. There is blurring of vision due to post traumatic involvement of optic nerve.
III. He has (Motor Disability) MUSE score of 18/30 in upper limbs, DTR are brisk, power grade 2/5.
IV. Sensory system when tested appears to be normal, there is no bladder involvement. There are tremors which are continuous, sometimes on and off exaggerated with work. There is no sensory or cerebellar ataxia.
OPINION:
1. Decrease in intellectual disability -5% (IQ-80-90%)
2. Blurring of vision -10%
3. Malocclusion -10% -8- NC: 2023:KHC-D:9752 MFA No. 100308 of 2021
4. Post head injury tremors and convulsion -30%
5. Motor system disability -5% _____ Total disability -60% After Clinical and Radiological examination as per the DGHS guidelines for assessing physical disability combined with functional disability, the patient has got 60% disability.
10. It is further stated by the doctor that claimant complains of difficulty in chewing food and to do his day to day activities. The claimant has got intermittent attacks of headache, decreased memory, visual blurring and intermittent attacks of head injury convulsions. He has got weakness in both upper limbs.
11. Therefore, it is in the evidence of PW.2-doctor before the Tribunal that the claimant has suffered physical disability combined with functional disability of 60% and accordingly, he has issued disability certificate as per Ex.P16.
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12. The cross-examination is to the effect that he has not verified the case sheet, x-ray and neurological reports of District Government Hospital, Haveri. Therefore, it is contended by the counsel for the Insurance Company that without verifying these reports, the assessment of disability made by doctor-PW.2 is not correct. Also it is argued that since neurological report is not obtained, the neurological disability percentage stated by the doctor- PW.2 is not believable.
13. In this back ground, this Court on 24.05.2023, during the course of argument, has ordered to examine the doctors before the Additional Registrar (Judicial) [AR(J)] and obtain report from him regarding assessment of disability. In compliance with the order of this Court, the AR(J) has examined three doctors as PW.3, PW.4 and PW.5. PW.3 is one Sri.Manjunath Desai who is a Neurologist at S.D.M.Hospital, Dharwad and he has given evidence that the claimant has suffered following disabilities upon is examination:
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021
1) Intellectual disability: It was assessed using vineland Social Maturity Score and Binet kamat test and found to be impaired.
2) Visual impairment: There was impaired vision in both eyes.
3) Speech and language ability was assessed using Speech Intelligibility test and overall voice clarity test and was found to be impaired.
4) Motor system disability was assessed using modified Rankin Scale and Ataxi rating scales. He had right sided choreiform movements, gai ataxia and MRC power grading 2/5 in right upper limb.
5) Sensory system was within normal limits and there was no autonomic dysfunction.
Opinion:
Intellectual disability 20%
Visual impairment 40%
Speech and language disability 30%
Motor system disability 50%
Total disability percentage 78%
14. As per his opinion, the claimant has suffered 78% of total diability. PW.3 being a Neurologist, has assessed intellectual disability to the extent of 20%. Visual impairment is assessed at 30% as assessed by Dr.Anupama S.Desai, consultant ophthalmologist. Thus,
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 PW.3 has assessed speech and language disability at 30% and motor function disability at 50%. During the course of cross-examination, it is revealed that he has not treated the claimant. With reference to cross-examination of PW.3, he has denied the suggestion that intellectual disability of 20% cannot have any effect on his earning capacity as a Mason. It is also denied by the doctor that intellectual disability depends upon the occupation of a particular person. Therefore, just because PW.3 is not the doctor who treated the injured, is not a ground to disbelieve his entire evidence. PW.3 is the qualified medical practitioner being a neuro physician. Upon examination of the claimant, he has assessed the disability as above stated and there is no exaggeration considering the nature of injuries sustained in the accident.
15. PW.3 is Dr.Pradeep Kumar Jain who is a Neuro Surgeon. PW.4 is Dr.Kiran Hegde who is Medical Superintendent of S.D.M.Hospital, Dharwad, has stated that a Medical Board Committee is constituted for
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 assessment of disability of the claimant and accordingly, they have issued Ex.P18-disability certificate. Just because in the cross-examination it is revealed that these two doctors have not treated the claimant, is not a ground to disbelieve their evidence. Just because those doctors have not verified wound certificate and x-ray before making assessment of disability is not the ground to say that those doctors are not competent to assess disability. In the course of cross-examination, nothing is revealed that these medical practitioners are incompetent to assess physical disability. Doctor-PW.2 who has given evidence before the Tribunal has assessed that the claimant has suffered 60% of permanent physical disability towards the whole body. The Tribunal has taken it as 1/3rd of it as 20% and determined the compensation.
16. The nature of injuries sustained by the claimants are not disputed. The claimant had sustained injuries to the head due to fracture of parietal bone and affecting the sinus. When grievous injuries occurred to the head
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 causing fracture of skull, it is certain that the brain is also affected as in the present case. When the brain function is affected due to the injury in the accident, then the nerves/neurons/immutates in the entire body gets affected. When a severe brain injury is caused, it affects eyes, nose, speech, language and also motor functions. Even though there may not be fractured injury to the entire body, movement of body including limbs are affected since the brain controls every organ and part of the body. Therefore, in this regard, all the doctors have examined and assessed that the motor functions of the claimant are also affected. Just because a ophthalmology report is not obtained that cannot a ground to disbelieve that the vision of the claimant is also affected. Therefore, the Court does not see any exaggeration in the evidence of the doctors who are examined before the Tribunal and also before the AR(J). When it is proved as per the doctor-PW.2 that the claimant has suffered 60% of the permanent physical disability towards whole body and the motor functions are affected to the extent of 50%, vision
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 is affected, intellectual capacity is decreased and as per evidence of PW.3, the said assessment of disability is 78%. Therefore, with all these permanent physical disability, the claimant is not able to do work as a Mason. Then, it amounts to 100% functional disability. Assessment of functional disability affecting the future earning capacity is based on nature of injuries sustained, disability suffered, professional skill involved in the job and the requirement of physical strength to the said job. When the brain is affected causing 78% of permanent physical disability including intellectual capacity as discussed above, certainly, it amounts to 100% functional disability.
17. The Hon'ble Supreme Court has elaborately discussed the criteria for calculating disability in the case of Raj Kumar Vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343, at para Nos.12, 13 and 19, which reads as follows:
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 "12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates.
The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the claimant to such Medical Board for assessment of the disability.
13. 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
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 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 percentage of loss of earning capacity is the same as 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 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."
"19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income."
18. Therefore, in a case of brain injury resulting in neuro psychological function disorder, certainly, the whole body gets affected. In the present case, the claimant has lost memory and speed and language is not in coherence. As described above, even his intellectual capacity is diminished and the motor functions are affected. Therefore, with all these disabilities, the claimant is not able to work as a Mason much less any other work for earning his livelihood. Therefore, it amounts to 100% functional disability.
19. Furthermore, the ground raised is only for increasing percentage of disability. Holding of percentage of disability is not at the instance of parties as in the case of recoginizing the percentage of physical disability and assessment of functional disability is the task of the Tribunal/Court, not being influenced by the say of the
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 parties, but it must be objectively assessed based on the evidence on record. Therefore, when evidence on record is re-appreciated also taking note of the evidence of doctor-PW.3, PW.4 and PW.5 examined before this Court, it is proved that the claimant had suffered 100% of functional disability and accordingly, the claimant is entitled for compensation.
20. The claimant was a Mason by profession, aged about 27 years at the time of the accident. The accident is caused on 24.06.2014 and in the absence of proof of income, notional income of Rs.7,500/- p.m., is taken into consideration as per KSLSA. The appropriate multiplier is
17. Since the claimant has suffered 100% notional disability, he has lost future prospects in life to be compensated. As per the Judgment of the Supreme Court in the case of SIDRAM vs. DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER (2023) 3 SCC 439 and Division bench of this Court in NEW INDIA ASSURANCE COMPANY LTD., VS.
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 ABDUL & OTHERS (MFA.NO.103807/2016 C/W MFA.NOs.103835/2016 AND 103807/2018) D.27.05.2022), certain amount has to be awarded towards loss of future prospects in life. The quantum to be added towards loss of amenities in life can be taken by the aid of guidelines issued by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS reported in (2017) 16 SCC 680. Therefore, 40% of income has to be added towards loss of future prospects. Hence, the loss of future income/loss of earning capacity is re-assessed and quantified as under:
Rs.7,500/-+40%= Rs.10,500/-x17 x 12 =Rs.21,42,000/-.
21. On other heads, the compensation awarded by the Tribunal towards pain and suffering is found to be less.
Accordingly, compensation of Rs.75,000/- is awarded towards pain and suffering. The amount granted towards medical expenses and hospital charges is found to be
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021 correct. Hence, it is kept in tact. A compensation of Rs.50,000/- is awarded towards incidental expenses like food, nourishment, conveyance and attendant charges etc. Compensation awarded towards loss of income during laid up period is kept in tact. The compensation granted towards amenities is kept in tact. A compensation of Rs.30,000/- is awarded towards future medical expenses. Thus, in all, the claimant is entitled for compensation under various heads as follows:
Sl. Heads. Amount in Rs.
No.
1. Towards pain and 75,000
suffering.
2. Towards medical expenses. 1,96,938
(as per bills produced)
3. Towards incidental 50,000
expenses (diet and
attendant charges etc.).
4. Towards loss of income 45,000
during laid up period
(kept in tact)
5. Towards loss of future 21,42,000
earning capacity
6. Towards loss of amenities 30,000
(kept in tact)
7. Future medical expenses 30,000
TOTAL Rs.25,68,938/-
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NC: 2023:KHC-D:9752
MFA No. 100308 of 2021
11. In the result, I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and award passed in MVC No.111/2015 dated 04.12.2020 passed by the Addl. Senior Civil Judge and Addl. MACT, Hangal, at Hangal is modified to the aforesaid extent.
iii) The claimant is entitled for total compensation of Rs.25,68,938/- along with interest at 6% p.a. from the date of filing of the petition till realization on the enhanced compensation.
v) The remaining observations of the Tribunal are kept in tact.
vi) The insurance company shall deposit the compensation within eight weeks from the date of receipt of a copy of this judgment.
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NC: 2023:KHC-D:9752 MFA No. 100308 of 2021
vii) No order as to costs.
viii) Registry to transmit a copy of this Judgment along with TCR to the Tribunal.
SD/-
JUDGE BNV CT-ASC