Karnataka High Court
Sri.Dharanendrakumar vs Sri.Thangavelu on 11 October, 2023
Author: K.Somashekar
Bench: K.Somashekar
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NC: 2023:KHC:37094-DB
MFA No. 1697 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
MISCELLANEOUS FIRST APPEAL NO.1697 OF 2021 (MV-I)
BETWEEN:
SRI.DHARANENDRAKUMAR
@ DHARMENDRA KUMAR
S/O N D PADMARAJ
AGED ABOUT 47 YEARS
R/O SRI JAIN MUTT ROAD
SHRAVANABELAGOLA(RURAL)
SHRAVANABELAGOLA,
HASSAN-573 135.
...APPELLANT
(BY SRI. UDAYA KUMAR R. L., ADVOCATE)
Digitally
signed by D
HEMA AND:
Location:
HIGH
COURT OF 1. SRI.THANGAVELU
KARNATAKA
S/O SENGADU GOWDAR
R/A NO.3/85, A MOTHAIYANUR
PUDHUVAAVU MOTHAIYANUR
MOTHIYAM P. O.,
SANKARI TALUK, SALEM DISTRICT.
2. RELAINCE GENERAL INSRUANCE
COMPANY LIMITED
REGIONAL OFFICE NO.28, 5TH FLOOR
CENTENARY BUILDING,
M G ROAD,
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NC: 2023:KHC:37094-DB
MFA No. 1697 of 2021
BENGALURU-560 001.
...RESPONDENTS
(BY SRI. T.N.MALATHI, ADVOCATE FOR R2;
V/O DATED 28.09.2021, NOTICE TO R1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1)
OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED.
17.09.2018, PASSED IN MVC NO.6389/2016, ON THE FILE OF
THE XXI-ACMM AND XXIII ADDITIONAL SMALL CAUSES JUDGE
AND MACT, BENGALURU (SCCH-25), PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS MFA HAVING BEEN HEARD AND RESERVED ON 27TH
SEPTEMBER 2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, UMESH M ADIGA J, DELIVERED THE
FOLLOWING:
JUDGMENT
This is claimants appeal against the judgment and award passed in MVC 6389/2016 on the file of MACT and Small Causes Court at Bengaluru, dated 17-09-2018, for enhancement of compensation.
2. We refer parties as their rank before the Tribunal.
3. It is the case of claimants that on 14-08-2016, claimant along with his wife, Smt.Nagarathna, were going on the motorcycle bearing registration number KA-51-EQ-0054 on Bengaluru-Hosuru National Highway Road. -3-
NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 Claimant/appellant was rider of the said motorcycle and his wife Smt.Nagarathna was pillion rider. Near HMG Granite Company of Anekal Taluk, the Claimant had met with an accident due to rash and negligent driving of lorry bearing registration number TN-34-F-6649 by its driver. The driver of the said lorry, came from hind side of the motorcycle in high speed and dashed against rear side of the motorcycle, as a result of which both the fell down from the motorcycle and sustained grievous injuries.
4. It is further case of the claimant that he was serving in a granite factory and earning Rs.25,000 per month. He was hale and healthy and aged about 40 years at the time of accident. Due to injuries sustained in the accident, his right leg below knee was amputated; He has been suffering from permanent disability to an extent of 100%. With these reasons, Claimant has prayed for awarding compensation of Rs. 30 lakhs.
5. The owner of lorry did not appear before the Tribunal. Respondent No.2/insurer of the offended lorry denied contents of the claim petition. It has further contended that -4- NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 accident had taken place due to rash and negligent riding of motorcycle by the claimant. The liability of respondent No.2 is restricted to terms and conditions of policy of insurance and holding of valid and effective driving by the driver of the lorry. With these reasons, insurer has prayed for dismissal of the claim petition.
6. The Tribunal had framed necessary issues for consideration.
7. MVC 6389/2016 was clubbed along with MVC 6390/ 2016 and Tribunal recorded common evidence in both the case. The claimants have examined PW 1 to 4 and got marked Exs.P1 to 27. The respondent No.2 was examined RW 2 and got marked Ex.R1.
8. The Tribunal after hearing both the parties and on appreciating pleading and evidence on record, partly allowed the claim petition awarding compensation of Rs.8,10,400/- by the impugned judgment and award dated 17-09-2018.
9. We have heard the arguments of learned advocates appearing for both side.
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NC: 2023:KHC:37094-DB MFA No. 1697 of 2021
10. The learned advocate for appellant has contended that the Tribunal has not appreciated evidence properly and assessed the disability of claimant/appellant at 40%. Though claimant has been suffering from permanent disability to an extent of 100% to the whole body. PW3 has stated that claimant has been suffering from permanent disability to an extent of 60% to the whole body. Without any reasons the Tribunal had rejected it. It is the case of Claimant that he has been working in the Granite factory and earning salary of Rs.25,000/- per month. However, Tribunal has not considered the same and assessed the notional income of claimant as Rs. 8,000/-. These facts needs revisit by this Court.
11. The learned advocate for appellant has further submitted that the Tribunal has awarded meagre amount of compensation on other heads. The Tribunal has also not considered future prospects of the victims/injured in the vehicle accident. In the case of PAPPU DEO YADAV VS. NARESH KUMAR AND OTHERS1 Hon'ble Apex Court, even in case of injury, added future prospects to the income of 1 AIR 2020 SC 4424 -6- NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 claimant. These facts needs reconsideration and prayed for enhancement of compensation amount.
12. The learned advocate for insurer has contended that the claimant had not proved his income before the Tribunal. The claimant had produced salary certificate without any corroborative materials. It is stated by PW4 that claimant had been working in the said factory and earning Rs.19,000/- per month. In the cross examination he admits that there are records in his office to prove that claimant was appointed in the said factory and he has been earning Rs.19,000/- per month, but no such records were produced. Hence Income of claimant was not proved.
13. The learned advocate for respondent-insurer has further submitted that the Tribunal has properly assessed the compensation and it does not call for any interference. He has submitted that this is a case of an injury to the victim, therefore, claimant is not entitled for addition of future prospects to the income of claimant. Claimants has not been suffering from permanent disability to an extent of 60% as prayed or 40% as considered by the Tribunal, which -7- NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 needs to be reconsidered. He has further submitted that amount of compensation awarded under other heads are on higher side and hence prays for dismissal of the appeal with cost.
14. From the above said contentions of both the parties, moot question arises for our determination is, "Whether the claimants are entitled for enhancement of compensation?"
15. PW1 and 2, are the victims of the accident; In their evidence, have stated that accident had taken place due to rash and negligent driving of lorry by its driver. A criminal case was registered against driver of the lorry for causing accident in question. The Tribunal appreciating pleading and evidence on record, rightly held that accident had taken place due to rash and negligent driving of lorry by its driver. The said finding is not challenged by the respondents i.e. owner and insurer of the offended lorry. Therefore, it doesn't call for interference by this court.
16. The learned advocate for appellant/claimant has relied on the judgments rendered by Hon'ble Apex Court in the -8- NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 case of ANANTA S/O SIDDHESHWAR DUKRE VS. PRATAP S/O ZHAMNAPPA LAMZANE AND ANOTHER2, wherein it is held in paragraph No.5 that:
"5. In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury. The Claimant is entitled to be compensated for his inability to lead a full life, and enjoy those thins and amenities which he would have enjoyed, but for the injuries".
17. The appellant-claimant has also relied on the judgment rendered by Hon'ble Apex Court, in the case of PAPPU DEO YADAV V. NARESH KUMAR AND OTHERS3 wherein Hon'ble Apex Court considered future prospects in case of injury, wherein claimant has been suffering from disability of 65% to the whole body.
18. Keeping in mind the law rendered by the Hon'ble Apex Court in the above said judgments, let us consider the case in hand.
2 2018(2), Kar.L.R 384(SC) 3 AIR 2020 SC 4424 -9- NC: 2023:KHC:37094-DB MFA No. 1697 of 2021
19. Claimant has sustained crush injury of right leg with exposure of tibia and evolution of skin over lower part of the leg. He underwent surgeries and his right leg below knee was amputated on 15.08.2016. His age is mentioned in the claim petition as 43 years, however, on the basis of Ex.P4, Tribunal considered his age as 40 years, which is not in serious dispute. His notional income is assessed as Rs.8,000/- per month; and his permanent disability as 40%; applied multiplier as '15' and awarded following amount of compensation:-
SL. PARTICULARS AMOUNT IN
NO. (RS.)
1. Pain and suffering 60,000
2. Medical expenses 30,398
3. Loss of income 24,000
during laid up period
4. Loss of future 5,76,000
income
5. Loss of amenities 20,000
6. Attendant, 20,000
conveyance, food
and nourishment
7. Future medical 80,000
expenses
Total 8,10,400
20. Evidence led in by the claimant that he was earning wages of Rs.19,800/- per month is not acceptable in the
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NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 absence of supporting materials; Except alleged salary certificate and evidence of PW.4, claimant has not produced other materials. The company where in claimant was said to be working, appears to be a Private Limited Company, as stated in the salary certificate. Evidence of PW-4 that the salaries were disbursed in cash to the employees, which is not believable. Hence, rightly the Tribunal had rejected the income of the claimant.
Claimants notional income has to be assessed. Claimant is an abled-bodied person, aged about 40 years at the time of accident. Normally, while settlement of the Motor Vehicle Claim petitions before the Lokadalat, for accident of the year 2016, income of the victim of an accident is considered as Rs.9,500 per month. Same could be applied to the present case and notional income of claimant is taken as Rs. 9,500/- per month. As assessed in the case of Pappu Deo Yadav vs Naresh Kumar (referred supra), future prospects of claimant has to be added to his income. As held in the case of National Insurance Company Limited vs
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NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 Pranay Sethi4 if the claimant is below age group of 40 years, 40% of his income has to be added towards future prospects. Accordingly, in this case also, 40% of his income is to be added towards future prospects.
21. Claimant contends that he has been suffering from permanent disability to an extent of 100%. However, as per evidence of PW3, claimant has been suffering from permanent disability to an extent of 60%. However, in the cross-examination, PW3 has stated that claimant can do such other work in sitting position. He has also stated that claimant has been using artificial limb and with the help of artificial limb, claimant could stand and walk with difficulties.
If we consider disability under Workman Compensation Act, Schedule 1, disability for amputation of leg below the knee joint, leaving a stump of 3.5 inches to 5 inches below the knee joint is 50%. Considering the facts and circumstances of the present case and evidence of PW3, claimant has been suffering from the permanent disability to the whole body to an extent of 50%. It is undisputed point that multiplier applicable to the facts of this case is '15'. 4 AIR 2017 SC 5157
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NC: 2023:KHC:37094-DB MFA No. 1697 of 2021
22. Claimant is entitled for compensation under the head loss of future earnings due to permanent disability is as under:
Salary per Rs. 9,500
month
Rs. 3,800
Add: 40%
Total Rs. 13,300
13,300X12X15X50%=Rs.11,97,000/-.
23. Claimant had suffered severe injuries i.e. crash injury to the right leg which resulted in amputation of right leg below knee joint. He underwent surgeries. He was admitted as inpatient about a week or 10 days. Since his right leg was amputated and his wife had also sustained injuries in the same accident, to attend him and to look after him and to do daily pursuits around the clock, he might have engaged attendant at least for a period of an year. Therefore, the attendant charges awarded by the Tribunal is on lower side. The claimant had taken treatment in a private hospital. Initially, he was admitted in different hospitals. Thereafter, he was admitted in multi-specialty hospital, wherein he underwent surgery. After discharge from the hospital, he
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NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 might have attended the hospital for follow-up treatment. Since his right leg was amputated, he might have taken service of ambulance or taxi to go to hospital for follow-up treatment and spent for the same. The amount of compensation awarded under the head medical expenses is on lower side, which needs to be enhanced.
24. Looking to the injuries sustained, that is resulted into amputation of right leg below knee joint and also other injuries, the claimant might have suffered severe pain and sufferings, which needs to be compensated. The amount of compensation awarded by the Tribunal under the said head is also on lower side, which needs to be enhanced.
25. The Claimant has to spend for artificial limb. According to evidence of PW3, the artificial limb of a higher quality may cost about 2 to 3 lakhs and such a limb has to be changed with certain intervals. Considering the said facts, the amount of compensation awarded by the tribunal under the head future medical expenses is on lower side, which needs to be enhanced. The Tribunal has not awarded just compensation under the head loss of income during laid up period. At least
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NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 for a period of 6 months, he might be bedridden and unable to do any work. Thereby, he has lost his earnings, which needs to be compensated.
26. Considering the above discussions, following amount of calculation is awarded to the claimant.
SL.NO PARTICULARS AMOUNT
IN (RS.)
1. Pain and suffering 1,00,000
2. Medical and incidental expenses 50,000
3. Attendant charges 1,00,000
4. Loss of amenities 1,00,000
5. Loss of future earning capacity due to 11,97,000
permanent disability
6. Loss of income during laid up period 57,000
(9,500x6)
7. Future medical expenses 1,00,000
Total 17,04,000
27. Claimant is entitled for enhancement of Rs.8,93,600/-
28. This appeal is filed after delay of 432 days. The Appellant has filed application IA No. 1 /21 to condone the delay of 432 days. This Court by order dated 28.10.2021, allowed the said application by denying interest for the delayed period. Therefore, Claimant is entitled for interest
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NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 on the enhanced amount of compensation at the rate of 6% per annum from the date of petition till its payment, excluding the period of delay of 432 days in filing the appeal.
29. For aforesaid discussions, we answer the above questions partly in the affirmative and pass following ORDER.
i. Appeal is allowed in part.
ii. Impugned judgment and award passed by the Tribunal in MVC 6389/2016 dated 17-09-2018 is modified as under.
a. Claimant is entitled for compensation of Rs.17,04,000/- as against Rs.8,10,400/- awarded by the Tribunal and claimant is entitled for enhancement of Rs.8,93,600/- with interest at the rate of 6% per annum from the date of petition till its payment, excluding the period of delay of 432 days in filing the claim petition.
b. Respondent No. 2 is directed to deposit the said amount within a period of 8 weeks from the date of receipt of the certified copy of this order.
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NC: 2023:KHC:37094-DB MFA No. 1697 of 2021 c. Deposit and release of the amount is as ordered by the Tribunal.
Sd/-
JUDGE Sd/-
JUDGE AG List No.: 2 Sl No.: 1