Karnataka High Court
Sri.Gulabjan vs The Managing Director on 27 September, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 MFA NO.7250/2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.7250/2014 (MV-I)
BETWEEN:
SRI.GULABJAN
S/O JALEEL SAHEB
AGED ABOUT 30 YEARS
OCC:CAR DRIVER
R/O NO.2, 9TH F MAIN
1ST STAGE, BTM LAYOUT
BANGALORE-560068.
... APPELLANT
(BY SRI SURESH M.LATUR, ADVOCATE)
AND:
THE MANAGING DIRECTOR
T.N.S.T.C (SALEM) LTD.,
NO.12, RAMAKRISHNA ROAD
REGIOANL OFFICE
DHARMAPURI DISTRICT
TAMIL NADU-636701.
... RESPONDENT
(BY SRI B. BOPANNA, ADVOCATE)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:20.08.2014 PASSED IN MVC NO.7957/2011 ON
THE FILE OF THE XII ADDITIONAL SMALL CAUSES JUDGE,
2 MFA NO.7250/2014
MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION AND ETC.,
THIS M.F.A. COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant-claimant, challenging the judgment and award dated 20.08.2014, passed in M.V.C. No.7957/2011, on the file of the Motor Accident Claims Tribunal at Bengaluru, (hereinafter referred to as 'the Tribunal' for brevity) seeking enhancement of the compensation.
Brief facts:
2. That on 01.01.2011, at about 11.00 a.m., the claimant was proceeding on his motor cycle bearing registration No.CAI-9212, from Shoolagiri towards Bengaluru, when he reached near Rashmi 3 MFA NO.7250/2014 Development, Nagamurthapalyam, at that time the Driver of the TNSTC bus bearing registration No.TN-
29-N-1992 came from opposite side with high speed in a rash and negligent manner and dashed against his motor cycle, as a result, he fell down and sustained grievous injuries, so immediately he was shifted to Krishnagiri Government Hospital, wherein first aid was given and then he was shifted to St.John's Medical College Hospital, Bangalore wherein he took treatment as inpatient by spending huge amount. Hence, a claim petition was filed by the appellant under Section-166 of the M.V. Act, claiming compensation for the injuries sustained in the accident.
3. In pursuance of the Notice issued, respondent appeared through counsel and filed the statement of objections denying the averments made in the claim petition.
4 MFA NO.7250/2014
4. To substantiate the contentions of the appellant-claimant, the claimant got himself examined as PW-1 and got marked the documents Exhibits-P1 to P10. The respondent company did not examined any witnesses or marked any documents.
5. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.9,50,494/-, along with interest at 6% per annum from the date of petition till the date of deposit. The Tribunal held respondent liable to pay the compensation.
6. Heard arguments of the learned counsel for the appellant and the learned counsel for the respondent and perused the materials on record.
7. The learned counsel for the appellant submitted that the quantum of compensation awarded 5 MFA NO.7250/2014 under various heads is on lesser side. Therefore, seeks for enhancement of the compensation.
8. The compensation awarded by the Tribunal is as follows:
Pain and Suffering : Rs. 50,000/-
Medical Bills : Rs. 10,094/-
Loss of income during laid up period : Rs. 24,000/-
Conveyance, Food & Nourishment, : Rs. 30,000/-
Attendant Charges, etc.
Loss of future income : Rs. 8,06,400/-
Future Medical Expenses : Rs. 30,000/-
TOTAL : Rs. 9,50,494/-
10. The learned counsel for the appellant - claimant submitted that the claimant had suffered fracture of Tibia and Fibula of left leg with compartment syndrome and amputation of left leg above knee. The appellant was a driver by profession and due to the injury suffered, he is disabled and cannot continue to work as a driver and hence has suffered 100% functional disability. But the Tribunal has taken only 70% of functional disability and 6 MFA NO.7250/2014 awarded lesser compensation. Further submitted that the compensation awarded under the other heads are also on lesser side. Therefore, prays for enhancement of compensation. Further, submitted that the claimant has advised to wear an artificial leg which approximately costs around Rs.2,00,000/-. He places reliance on the judgment of this Court in MFA No.8833/2017, dated 03.08.2021, in case of Sri.G.Gangadharappa vs. Sri.T.Vijaya Shekar Reddy And Others.
11. On the other hand, the learned counsel appearing for the respondent-T.N.S.T.C submits that the Tribunal is justified in passing the impugned judgment and award and there is no ground for enhancement. That the compensation amount as awarded by the Tribunal is sufficient and adequate.
12. The Tribunal has held the functional disability at 70% and taken the monthly income at 7 MFA NO.7250/2014 Rs.6,400/- and applying relevant multiplier awarded compensation of Rs.8,06,400/- under the head 'Loss Of Future Earning Due To Disability'.
13. In the present case, Exhibit-P2 is the Wound Certificate, Exhibit-P3, Photo, Exhibit-P7, X-ray films 7 in numbers, to prove the fact that the claimant had suffered fracture of Tibia and Fibula of left leg and amputation of left leg above knee. This fact is not disputed by the respondent - corporation. The Tribunal held the functional disability at 70%. In a similar circumstances, the Hon'ble Apex Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. DR.SUKANTA KUMAR BEHERA AND OTHERS, reported in 2015 ACJ 729, wherein 100% disability was taken in case of amputation of right leg, wherein the injured was a driver by profession. Further, a similar view was taken by the Division Bench of this court in MFA No.8833/2017, dated 8 MFA NO.7250/2014 03.08.2021, in the case of SRI.G.GANGADHARAPPA vs. SRI.T.VIJAYA SHEKAR REDDY AND OTHERS.
14. In the present case, the claimant was a driver by profession and had suffered amputation of left leg above knee. Therefore, the claimant is disqualified from doing the profession as Driver. In this regard, the Tribunal has committed an error in holding 70% functional disability but as per the dictum in the aforesaid judgments, certainly the claimant had suffered 100% functional disability.
15. The Tribunal has held the income of Rs.6,000/- per month. The accident was caused in the year 2011. Therefore, the notional income of Rs.6,500/- is to be taken as per the chart of Karnataka State Legal Services Authorities. The age of the claimant at the time of the accident was 31, therefore the appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the 9 MFA NO.7250/2014 case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104, is '16'.
16. Further, the learned counsel for the appellant - claimant submitted that, since in the present case, the claimant had suffered 100% functional disability, therefore addition of loss of future prospects can be as per the principle of law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680. Therefore, the 'Loss Of Future Earning Capacity Due To Disability', including 'Loss Of Future Prospects In Life' is recalculated and quantified as follows:
Rs.6,500 + 2,600 (40%) x 16 x 12 = Rs.17,47,200/-
17. The compensation amount awarded by the Tribunal at Rs.50,000/- towards 'Pain And Suffering' is on lesser side, since the claimant has suffered 10 MFA NO.7250/2014 amputation of left leg above knee. Therefore a sum of Rs.1,00,000/- is awarded under the said head.
18. The amount awarded under the 'Medical Expenses' at Rs.10,094/- is as per the actual bills produced. Hence, the same is kept in tact.
19. The Tribunal has awarded compensation of Rs.24,000/- towards Loss of income during laid-up period for a period of four months. Since the income of the claimant is now taken as Rs.6,500/- per month, and for six months the same is compensated and recalculated as follows : Rs.6,500 x 6 months= Rs.39,000/-
20. The compensation awarded under the incidental expenses viz., Conveyance, Food & Nourishment, Attendant Charges etc., at Rs.30,000/- is on lower side and the same stands enhanced to Rs.50,000/-.
11 MFA NO.7250/2014
21. The amount of compensation granted towards 'Future Medical Expenses' at Rs.30,000/- is just and proper and the same is kept in tact. Pain and Suffering : Rs. 1,00,000/-
Medical Bills : Rs. 10,094/-
Loss of income during laid up period : Rs. 39,000
Conveyance, Food & Nourishment, : Rs. 50,000/-
Attendant Charges, etc.
Loss of future income : Rs. 17,47,200/-
(Rs.6,500 x 2600 (40%) x 16 x 12)
Future Medical Expenses : Rs. 30,000/-
TOTAL : Rs. 19,76,294/-
22. The appellant - claimant is entitled for a total compensation of Rs.19,76,294/- as against Rs.9,50,494/-. The claimant is entitled to compensation from the insurer along with interest at 6% per annum from the date of petition till the date of realization. The insurer is directed to deposit the amount of compensation within eight weeks from the date of receipt of the certified copy of this judgment. 12 MFA NO.7250/2014
23. Accordingly, I pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award dated 20.08.2014, passed in M.V.C. No.7957/2011, on the file of the Motor Accident Claims Tribunal at Bengaluru is modified to an extent that the appellant - claimant is entitled for an additional compensation of Rs.10,25,800/-
(Rupees Ten Lakh Twenty Five Thousand Eight Hundred Only) (19,76,294 -
9,50,494) along with interest at 6% per annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal.
iii. The amount in deposit is ordered to be transferred to the Tribunal forthwith. iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified 13 MFA NO.7250/2014 copy of the order passed by this Court forthwith without any delay.
v. Draw award accordingly.
vi. No order as to costs / Costs made easy.
Sd/-
JUDGE JJ