Karnataka High Court
The Divisional Controller vs Sri. Mullaram S/O Sri Lasaramji on 11 September, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11th DAY OF SEPTEMBER 2013
BEFORE
HON'BLE MR. JUSTICE ARAVIND KUMAR
M.F.A.NO.2424 OF 2011 (MV)
BETWEEN:
THE DIVISIONAL CONTROLLER
KSRTC, BANNIMANTAP ROAD,
MYSORE
NOW THROUGH
CHIEF LAW OFFICER,
KSRTC, CENTRAL OFFICE,
K H ROAD,
BANGALORE ... APPELLANT
(BY:SRI K.NAGARAJA, ADVOCATE)
AND
SRI.MULLARAM
S/O SRI LASARAMJI
AGE:25 YEARS
R/AT NO 495, A RAMANNA STREET
DEVARAJA MOHALLA
MYSORE-570 001 ... RESPONDENT
(RESPONDENT SERVED)
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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 01.12.2010 PASSED
IN MVC NO.1367/2010 (OLD NO.559/2007) ON THE FILE
OF THE PRINCIPAL DISTRICT JUDGE AND MEMBER MACT,
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MYSORE, AWARDING A COMPENSATION OF
Rs.11,83,500/- WITH INTEREST @ 6% P.A. FROM THE
DATE OF PETITION.
THIS MFA COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
JUDGMENT
Karnataka State Road Transport Corporation (hereinafter referred as 'Corporation' for the sake of brevity) is in appeal questioning the correctness and the legality of the judgment and award passed by MACT, Mysore in MVC No.1367/2010( old MVC No.559/2007), whereunder, claim petition filed seeking compensation of Rs.65,80,000/- with interest at 12% p.a. has been allowed-in-part and total compensation of Rs.11,83,500/- has been awarded with interest at 6% per annum from the date of petition till realisation.
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I have heard the arguments of Sri. K. Nagaraja for Corporation and Sri. Gopal Krishna, who has been appointed as Amicus Curiae to assist the Court, since the claimant-respondent is served and unrepresented.
2. It is contended by Sri. Nagaraj, that the amputation said to have been carried out to the left leg of the claimant is itself shrouded with mystery, inasmuch as, within three days from the date of the accident, it is stated that he had developed gangrene and as such, version of the claimant cannot be believed. He would also submit that compensation awarded by the tribunal considering the disability at 100% is on the higher side and contends that there is no evidence available on record that claimant is unable to carry on his work i.e., carpentry work, which is claimed to be his avocation and as such, he submits that disability 4 assessed by the tribunal at 100% be reduced to 50%. He would also contend that compensation awarded towards "loss of amenities' is on the higher side and as such he seeks for overall reduction of compensation by allowing the appeal in question.
3. Per-contra, Sri.Gopal Krishna, learned Advocate appearing as Amicus Curiae would submit that compensation awarded by the Tribunal is on the lower side and the income of the claimant construed by the Tribunal at Rs.3,000/- is on the lower side and it ought to have been construed atleast at Rs.4,000/- per month. He would submit that even though the claimant has not filed an appeal, this Court in exercise of the power under Order 41 Rule 33 CPC, can enhance the compensation in order to award just and reasonable compensation and as such he prays for modifying the award by enhancing the compensation. 5
4. Having heard the learned Advocates appearing for the parties and on perusal of the judgment and award in question, it would indicate that on 3.8.07, while claimant was proceeding on his motor cycle, a KSRTC bus driven in a rash and negligent manner dashed motorcycle from hind side, due to the said impact claimant fell down and sustained grievous injuries. He was shifted to K.R. Hospital Mysore, where he was administered first- aid treatment and later on shifted to Mission hospital, Mysore and thereafter on 9.8.2007 i.e., after six days after the accident, he was shifted to Apollo BGS hospital, Mysore. He was an inpatient from 9.8.2007 to 17.9.2007, as could be seen from discharge summary Ex-P8. As per the wound certificate issued by Apollo BGS hospital, it would indicate that claimant had sustained fracture of head fibula with fracture of medial condyle of left 6 femur and he had developed gangrene of left leg. On account of gangrene having developed in the left leg, amputation above knee was done on 14.8.2007, as disclosed from the discharge summary. Though Mr. Nagaraj would contend that initial medical records of K.R. hospital and Mission hospital has not been produced and as such injury caused to the left leg is to be disbelieved, cannot be accepted, for reason more than one. The discharge summary produced as per Ex-P8 and the case-sheet available on record would indicate that claimant was admitted to Apollo BGS hospital for the injuries referred to above and the Doctor, who had treated the claimant at Apollo BGS hospital has been examined as PW-2. He states that he was visiting Consultant at Apollo BGS hospitals, Mysore. He has specifically stated that on account of lower half of the leg having developed gangrene, he had suggested for amputation on the 7 same day and accordingly, amputation was carried out on 9.8.2007. He has also stated on account of certain wounds sustained by claimant having not healed it was debrided and unhealthy tissues were removed on 17.8.2007. Said evidence of Doctor is also supported by case-sheet. On account of the infection having further spread and wound having not improved, amputation above knee was made on 14.8.2007.He further states on account of multiple complications having developed, he was treated in ICU and later shifted back to the ward on 28.7.2007 and thereafter discharged on 7th September 2007. He has assessed the disability to the left lower limb at 80%. He has not assessed the whole body disability. However, in the cross examination conducted on 30.9.2010, he states that on account of amputation of left leg and consequential disability sustained, whole body disability was assessed at 8 50%. This voluminous medical evidence available on record would clearly indicate that claimant had sustained injury to the left leg in question which had resulted in gangrene being developed and subsequently on account of said infection having aggravated it had resulted in amputation above knee, as such, the contention of Sri. Nagaraj that very injury sustained by the claimant to the left leg and the development of gangrene is to be disbelieved, cannot be accepted.
5. Insofar as, compensation awarded by the Tribunal under the head 'loss of future income' is concerned, it requires to be noticed that the Tribunal has accepted the version of the claimant that he was a carpenter by profession. However, it has proceeded to hold that even if he is construed as a coolie, leg is essential part of the human body and when there is amputation of one leg, such 9 person would not be in a position to discharge his duties. At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of MOHAN SONI v. RAM AVTAR TOMAR AND OTHERS, reported in 2012 ACJ 583, wherein the Hon'ble Apex Court while considering the claim for awarding 'loss of earning capacity' due to physical disability has held that it has to be judged with reference to the nature of the work being performed by the injured claimant. It has been held by the Apex Court as under:-
"10. In the light of aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellant's earning capacity as a result of the amputation of his left leg was only 50 per cent. It is noted above that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that 10 notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who had suffered some serious permanent disability resulting from the loss of a limb, etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than an hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection [as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and full Participation) Act, 1995] or in case of the vast multitude who earn their livelihood in the unorganised sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income. The loss of earning capacity of the appellant, according to us, may be as high as 100 per cent but in no case it would be less than 90 per cent. We, accordingly, find and hold that 11 the compensation for the loss of appellant's future earnings must be computed on that basis. On calculation on that basis, the amount of compensation would come to Rs.3,56,400 and after addition of a sum of Rs.30,000 and Rs.15,000, the total amount would be Rs.4,01,400. The additional compensation amount would carry interest at the rate of 9 per cent per annum from the date of filing of the claim petition till the date of payment. The additional amount of compensation along with interest should be paid to the appellant without delay and not later than three months from today.
6. In the said case, claimant therein was a cart- puller, who was eking out his livelihood by pulling cart. Necessarily for drawing cart or pulling the cart, both legs and hands are required and in this background, their Lordships have explained under what circumstances, the award of compensation towards 'loss of earning capacity' requires to be assessed. In other words, it has been held that the nature of work or the avocation of a person would be the deciding factor. Keeping the said principles in 12 mind, when facts on hand are examined, it would indicate that claimant had entered the witness box. He has stated in his examination-in-chief that he is a carpenter by profession. In his cross-examination dated 26.9.2010, he has admitted that he was doing carpentry work at his brother's shop M/s. Hanuman Carpentry Shop at Shivarampet, Mysore. However, for reasons best known, he did not examine his brother. Be that as it may, Tribunal has not discarded the evidence of claimant in its entirety or in other words, it has accepted his evidence partially. Thus, keeping the evidence of the claimant in mind and accepting his version, he has to be treated as carpenter by profession, 'loss of earning capacity' or the 'disability' that he has sustained resulting in his future loss of earning capacity will have be evaluated. Even if he is considered as carpenter by accepting what he has 13 stated in his examination-in-chief or cross- examination to be truth, it cannot be held that he would not be able to discharge his duties as a carpenter in future. However, this Court also cannot loose sight of the fact that on account of amputation of left leg, claimant would not be able to discharge his duties as carpenter in the same manner or fashion as he was earlier carrying on. In other words, there would be reduction in his earning capacity or reduction in the number of working hours he would work in a day. In that view of the matter, I am of the considered view that tribunal was in error in considering the whole body disability or the functional disability of the claimant at 100%. Though in the cross-examination, Doctor has stated it to be at 50%, I am of the considered view that 75% would be the functional disability of the claimant, inasmuch as, he would be doing 14 carpentry work by sitting and at times, he may have to discharge his duties also by standing. As such whole body disability would be to the extent of 75%. Hence, whole disability is construed at 75% and 'loss of future income' awarded by the Tribunal is recomputed, inasmuch as, it has considered the disability at 100%. Thus, 'loss of future income' to the claimant would be:
Rs.3,000 x 75%/100= Rs.2,250 x 12x18 =Rs.4,86,000/-
Since the Tribunal has awarded a sum of Rs.6,48,000/-, there is excess award of compensation o an extent of Rs.1,62,000/- (Rs.6,48,000 - Rs.4,86,000). Hence, same requires to be scaled down.
As on the date of the accident, claimant was aged about 21 years. On account of amputation of left leg, marriage prospects have become bleak and 15 as such, it would be appropriate to award a sum of Rs.40,000/- towards of 'loss of marriage prospects', as it would be just and reasonable compensation. Insofar as, compensation awarded by the Tribunal under other heads is concerned, same is just and reasonable and commensurate with the evidence tendered by the claimant and it cannot be considered to be either excessive or on the higher side and as such it is not interfered. It is also required to be noticed that Tribunal has not awarded 'loss of income during laid up period'. Considering the nature of injuries sustained by the claimant and number of days of hospitalization, as evidenced from the discharge summary Ex-P8, which indicates he was an inpatient from 9.8.2007 to 17.9.2007 and thereafter has taken follow up continuously for a period of four months, I am of the considered view, that it would be appropriate to 16 award compensation towards 'loss of income during laid up period' for a period of five months. Considering the income of the claimant at Rs.3,000/-, claimant would be entitled to loss of income for a period of five months i.e., in a sum of Rs.15,000/-(Rs.3,000 x 5 months = 15,000/-). On re-computation of compensation, claimant would be entitled to the following compensation :-
Sl. Heads Amount in
No. `
1 Pain and suffering 1,00,000
2. Medical expenses 2,20,500
3. Loss of amenities 1,00,000
4. Loss of future income 4,86,000
5. Conveyance, 15,000
attendant and
nourishment
6. Artificial Limb 1,00,000
7. Loss of income during 15,000
laid up period
8. Loss of marriage 40,000
prospects
TOTAL 10,76,500/-
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In the result, I pass the following:-
(i) Appeal is allowed-in-part.
ORDER
(ii) The judgment and award passed by MACT,
Mysore dated 1.12.2010 in MVC
No.1367/2010 is hereby modified and in substitution to said award a total compensation of Rs.10,76,500/- is hereby awarded, which shall carry interest at the rate of 6% p.a. from the date of petition till date of payment or deposit, whichever is earlier.
(iii) Appellant shall deposit the compensation with interest before the jurisdictional Tribunal within six weeks from the date of certified copy of the order.18
(iv) Amount in deposit is ordered to be transmitted to the jurisdictional tribunal alongwith records forthwith by the Registry.
Sd/-
JUDGE *mn/-