Karnataka High Court
Vinaya vs Narayana B on 15 November, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.No.4326/2018 (MV - I)
BETWEEN:
VINAYA,
S/O PANCHAIAH,
AGED ABOUT 25 YEARS,
COOLIE,
R/O JAIBHEEM NAGARA,
BHADRAVATHI - 577 301,
SHIVAMOGGA DISTRICT.
... APPELLANT
(BY SRI.RAJENDRA S., ADVOCATE
SRI.S.V.PRAKASH, ADVOCATE)
AND:
1. NARAYANA B.,
S/O N.NARAYANA,
AGED ABOUT 54 YEARS,
DRIVER OF LORRY,
NO.KA-06-3434,
R/O VISL QUARTERS,
HUTHA COLONY,
BHADRAVATHI - 577 301,
SHIVAMOGGA DISTRICT.
2. P. SELVAKUMAR,
S/O BHOOPAL,
AGED ABOUT 39 YEARS,
OWNER OF LORRY NO.KA-06-3434,
TARIKERE ROAD, OLD TOWN,
2
BHADRAVATHI - 577 301,
SHIVAMOGGA DISTRICT.
3. THE NEW INDIA ASSURANCE
COMPANY LIMITED,
PREMA COMPLEX, B.H.ROAD,
BHADRAVATHI - 577 301,
POLICY NO.68010131140 200004385
VALID FROM 22/11/2014 TO 21/11/2015
... RESPONDENTS
(BY SMT.HARINI SHIVANANDA, ADVOCATE FOR R3;
NOTICE TO R1 AND R2 DISPENSED WITH VIDE ORDER
DATED 15.11.2022)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
01.02.2018 PASSED IN MVC NO.113/2016 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL
MACT-12, BHADRAVATHI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR 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.113/2016 dated 01.02.2018 by the Court of the Additional Senior Civil Judge and Addl. MACT-12 at Bhadravathi, 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 11.09.2015 at about 7.00 p.m., near Rangappa Circle, Old Town, Bhadravathi, when a lorry bearing No.KA-06-3434 dashed against the claimant. Therefore, the claimant has filed claim petition under Section 166 of the Motor Vehicles Act, seeking compensation.
3. The Tribunal after considering the facts and circumstances and evidence on record, has granted a compensation of Rs.5,09,607/- with interest at the rate of 9% p.a. from the date of petition till the date of realisation.
4. Being aggrieved by the lesser quantum of compensation, the present appeal is filed.
5. Heard the arguments on both sides and perused the records.
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6. 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.
7. On the other hand, learned counsel for the respondent No.3-Insurance Company submitted that the compensation awarded by the Tribunal is just and proper and therefore, prays for dismissal of the appeal. The liability on the Insurance Company is not disputed as there was existence of insurance police as on the date of the accident.
8. The Tribunal has granted the compensation under various heads as follows:
Sl.No. Particulars Amount (in.Rs.)
1. Towards pain and suffering 1,00,000.00
2. Towards Conveyance, 15,000.00 Attendant charges and nourishing food
3. Towards loss of income 27,000.00 during treatment
4. Towards loss of future 3,11,040.00 income due to disability
5. Towards medical expenses 6,567.00
6. Towards loss of amenities 50,000.00 Total 5,09,607.00 5
9. From the evidence of Doctors-PWs.2 and 3, wound certificate at Ex.P9, discharge summary at Ex.P11, case sheet and other medical records, it is proved that the claimant has sustained head injury, deploring injury at right foot, disc prolepses C3-C4 level, altered signal intensity involving cervical cord contusion from cervic modularly junction to C5 lower end plate level, deploring injury present over left dorsum of foot measuring about 20 cm. x 5 cm. x 10 cm.
10. Therefore, from the medical evidence as above discussed, it is proved that the 5th toe was amputated, K wire was fixed on 2nd toe, split skin grafting was done over his left dorsum and also it is proved that loss of normal cervical lard sis and foot left side little finger amputated and there is scar with equino varus deformities in the opposite side. Therefore, considering the nature of injuries sustained as above stated and as discussed by the Tribunal, the quantum of 6 compensation awarded under the head 'pain and suffering' is found to be just and proper.
11. The claimant has suffered fracture of cervical C3-C4 level. Therefore, the claimant has also suffered paraplegia in both lower limbs and right upper limb including the left side ankle, which have become functionless. Therefore, the claimant is not able to walk and is always confined to sit on the floor. This is noticed by the Tribunal while the claimant was coming to the Court for giving evidence then the Presiding Officer of the Tribunal had an opportunity to see the claimant and it is observed that the claimant was coming to the court hall by trolley as he cannot stand and walk. The claimant was coming to the Tribunal by sitting in the court hall on the floor, as he is not able to stand and walk. Therefore, this is the pathetic situation and plight of the claimant as noticed by the Tribunal and discussed in the judgment. I do not see any exaggeration made by the Tribunal, as the same is re-appreciated with the evidence as 7 produced by the claimant. Therefore, the claimant being a coolie, he cannot do the work as coolie. Therefore, it is amounting to 100% functional disability. Even though, the doctor has stated that the claimant has permanent physical disability of 40% of right upper and lower limbs and left side ankle but the Tribunal has observed that since the claimant is able to sit on the floor and can do some other work like areca peeling, etc. Accordingly, assessed the functional disability at 60%.
12. Even though the claimant has suffered a 40% permanent physical disability as per the doctor's evidence and the disability certificate issued by them, the loss of earning capacity affected by the functional disability cannot always be attributed to the physical disability. Physical disability and functional disability are two different things. Even if the physical disability is 40%, if the injured person is unable to work or engage in any profession/avocation/his daily wage, it amounts to 100% functional disability. In this regard, the Hon'ble 8 Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another 1, wherein at Paragraph Nos.12, 13 and 19, it is held as under:
"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 summarize 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 be 1 (2011) 1 SCC 343 9 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 Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income."
13. Further, the Hon'ble Supreme Court in the case of Rekha Jain Vs., National Insurance Co., Ltd., 10 and Others2 were pleased to consider that the injured has suffered 100% of functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured has suffered injury on the face and her face was disfigured. The injured is no longer to work in film or as a TV actress and had lost her entire earning capacity as a TV actress. Therefore, the Hon'ble Supreme Court considered it as 100% of functional disability. The principle of law laid down therein is squarely applicable to the case on hand.
14. The Hon'ble Supreme Court in the case of Jakir Hussein Vs. Sabir and Others3 were pleased to hold that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% of permanent physical disability, but it affects the avocation of the injured to carry out the profession as he was doing before the accident. Then it would amount to 100% of functional disability. The 2 (2013) 8 SCC 389 3 (2015) 7 SCC 252 11 injured being a driver met with an accident and as per the doctor's evidence, he suffered 55% of permanent physical disability and cannot drive any motor vehicle in future. Therefore, with such disability, when the driver is not able to carry on the profession as driver, then it is amounting to functional disability and accordingly, awarded compensation by holding functional disability at 100%. Further the Hon'ble Supreme Court in the case of Mohan Soni Vs. Ram Avtar Tomar and Others4 had held that the injured being a cart-puller met with an accident and left leg was amputated below the knee. Under these circumstances, the Hon'ble Supreme Court held the functional disability at 100%. Since, the injured is not able to work as a cart-puller and had suffered functional disability at 100% and accordingly, awarded compensation.
15. The principle of law laid down regarding permanent physical disability and functional disability is 4 (2012) 2 SCC 267 12 applicable in the present case also. There may not be evidence of the doctor that the injured has suffered 100% of permanent physical disability, but the functional disability is to be considered on the basis of nature of injuries sustained and the profession of the injured/claimant. In the present case, the claimant was working as a coolie and coolie work requires physical strength by standing on the leg but the claimant is confined to floor, as he cannot stand and walk and therefore, it amounts to 100% functional disability.
16. Further, the accident is occurred on 11.09.2015. Therefore, for the year 2015, the notional income would be Rs.9,500/- p.m. as recognized by the Karnataka State Legal Services Authority. Even though the claimant has stated that he was earning Rs.7,000/- p.m. but what would be the minimum income by maintaining livelihood that can be taken into consideration. This is the concept of minimum wage, in the absence of proof of income. Therefore, a sum of 13 Rs.9,500/- p.m. is considered as notional income of the claimant. As the claimant was aged 23 years as on the date of accident, therefore, the appropriate multiplier applicable is '18'. Further, in the present case, the claimant has suffered 100% functional disability, it affects the loss of future prospect in life also that will be compensated as per the judgment of Division Bench of this Court in New India Assurance Company Ltd., Vs. Abdul & Others5, wherein it is held that in the case of injury suffered like in the present case, additional income has to be added towards loss of future prospects in life as it is permissible in the case of injuries where severe disability is occurred affecting the earning capacity substantially. The Division Bench in the above case were pleased to grant compensation by adding income towards 'loss of future prospects in life'. In the above stated case, the appellant-claimant was doing coolie and has suffered 100% disability. Therefore, it was granted compensation including loss of future prospects in life. It 5 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 14 is useful to refer the observations made by the Division Bench of this Court in the above case at Paragraph Nos.26, 27 and 31, which reads as follows:
"26.What is the true basis for incorporating 'loss of future prospects' in computing compensation under the head of loss of future earning capacity? Is it because courts have to make a distinction between various classes of injuries resulting in disabilities having a bearing on the earning capacity and thereafter, mark the cases only of disability resulting from amputation of limbs for incorporating an additional component of 'loss of future prospects' into the computational process of loss of future income? Our answer is an emphatic No! In an opinion marked by considerable prescience and percipience, Singhvi J. speaking for a Bench of Supreme Court observed as follows:
"14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was self-employed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be & 103807/2018 D.D.27.05.2022 15 naïve to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are self-
employed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families.
16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.
17. Although, the wages/income of those employed in unorganized sectors has not 16 registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation." (Santosh Devi 17 v.National Insurance Company Limited and others) 8.
27. It is thus evident that this component of 'loss of future prospects' is a forensic tool forged by the Supreme Court to off-set the adverse effect of imponderable vagaries of inflation on the assessment of loss of future earning. To link this component only to disability arising from amputation of limbs defies logic and has no sanction of law. It is undoubtedly true that it is no part of the statutory law governing the field of award of compensation in motor vehicle accident cases. But, Courts are enjoined under law to award "just compensation" and no compensation can be regarded as just unless law is capable of reinventing itself by making proper adjustments as the "needs of the time require". Judges some times make law if the statutes made by the Parliament fall short of meeting the requirements of the time.
31. Resultantly we are constrained to reject the contention of Sri. G. N. Raichur, learned counsel for the Insurance Company. 'Loss of future prospects' also has to be factored in notwithstanding the fact that this is not a case of death but a case of injury without amputation resulting in whole body disability to the extent of 20% which ultimately has a bearing on the reduced earning capacity. It is essentially on account of the fact that money value does not remain constant over a long spell of years and thus claimant being aged only 40 years, he has long years ahead of him to look forward to, the sliding value of the money will have adverse impact on his future prospects. Accordingly, having due regard to 18 the fact that he was aged about 40 years at the time of the accident, 25% of his established income will have to be factored in towards compensation for 'loss of future prospects'. Therefore, 'loss of earning capacity' is recomputed as follows: Rs.6,000/- + 25% (Rs.1,500/-) = Rs.7,500/- Rs.7,500 x 12 x 15 x 20% =Rs.2,70,000/-.
Then, as per principles of law laid down in the judgment of Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi6, 40% income is to be added towards 'loss of future prospects in life'.
Therefore, the loss of earning capacity due to disability including loss of future prospects in life is re-assessed and quantified as under:
Rs.9000 + 3600 (40% of Rs.9000) = Rs.12,600/-
Rs.12,600/- x 18 x 12 = Rs.27,21,600/-
Accordingly, a sum of Rs.27,21,600/- is awarded under the head loss of earning capacity due to disability including loss of future prospects in life.6
(2017) 16 SCC 680 19
17. In the present case, the claimant was constrained to take treatment at Mc.Gann Hospital, Shivamogga and Wenlock Hospital, Mangaluru and was an inpatient in the hospital for a period of 4 months 16 days. Therefore, the claimant is constrained to travel from Bhadravathi to Shivamogga and to Mangaluru.
Therefore, towards 'conveyance, attendant charges, nourishing food, etc.' a sum of Rs.35,000/- is awarded under the said head.
18. Further, the 'loss of income during laid up period' can be considered at least for a period of 6 months since the claimant was inpatient for a period of 4 months 16 days. Accordingly, a sum of Rs.54,000/- is awarded under the head 'loss of income during laid up period'.
19. The compensation awarded under the head 'medical expenses' and 'loss of amenities' are found to be just and proper and the same are kept in tact. 20
20. The claimant was 23 years old as on the date of accident and unmarried person. Due to the accidental injuries, the claimant is confined to floor and he cannot do any work for his livelihood and for also his day-to-day normal work. Therefore, he has lost marriage prospects in life. Accordingly, a sum of Rs.75,000/- is awarded under the head 'loss of marriage prospects in life'.
21. Thus, in all, the claimant is entitled for the following sums:
Sl.No. Particulars Amount (in.Rs.)
1. Towards pain and suffering 1,00,000.00
2. Towards Conveyance, 35,000.00 Attendant charges and nourishing food
3. Towards loss of income 54,000.00 during laid up period
4. Towards loss of future 27,21,600.00 income due to disability
5. Towards medical expenses 6,567.00
6. Towards loss of amenities 50,000.00
7. Towards loss of marriage 75,000.00 prospects in life Total 30,42,167.00
22. The Tribunal has awarded the compensation of Rs.5,09,607/-, but the appellant/claimant is entitled 21 to total compensation of Rs.30,42,167/-. Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.25,32,560/- (Rs.30,42,167 - Rs.5,09,607) with interest at the rate of 6% p.a. from the date of petition till realization, in addition to what has been awarded by the Tribunal.
23. 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.113/2016 is hereby modified holding the claimant is entitled for enhanced compensation of Rs.25,32,560/- 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 Registry to return the Trial Court Records along with copy of this order to the Tribunal, forthwith.
iv. Draw award accordingly.
Sd/-
JUDGE
KA