Karnataka High Court
Sri Abhishek B R vs Sri H V Paramesh on 23 October, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC:42735
MFA No. 1562 of 2016
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 1562 OF 2016 (MV-I)
BETWEEN:
SRI. ABHISHEK B.R
S/O RAJAJSHEKARA
AGED BOUT 26 YEARS
R/AT DOOR NO. 5545/2
1STMAIN, 2ND CROSS
RAVINDRANAGAR
HASSAN - 573 201.
...APPELLANT
(BY SRI. ANANDA SHETTY A, ADVOCATE)
AND:
1. SRI. H.V. PARAMESH
S/O VENKATEGOWDA
AGED ABOUT 37YEARS
R/AT DODDAHONNENAHALLI VILLAGE
DODDAGENIGERE POST,
SHANTHIGRAMA HOBLI,
Digitally signed
by RAMYA D HASSAN TALUK AND DISTRICT - 573 220.
Location: HIGH
COURT OF
KARNATAKA (OWNER CUM DRIVER OF LORRY
BEARING REG.NO.KA-01-AB-700).
2. M/S ORIENTAL INSURANCE COMPANY LIMITED,
SUBHASH SQUARE
HASSAN - 573 201
POLICY NO. 472600/31/2013/13309
VALID FROM 6.3.2013 TO MIDNIGHT 4.3.2014
3. SRI J U SHIVAPPA
S/O UMAPATHIGOWDA
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NC: 2024:KHC:42735
MFA No. 1562 of 2016
MAJOR, AGED ABOUT 58 YEARS,
R/AT JAMBHADRI VILLAGE
KYANAHALLI POST
HANBAL HOBLI
SAKLESHPUR TALUK - 573 134.
(OWNER OF CAR BEARING
REG.NO.KA-46-M-0527 TATA INDIGA)
4. M/S NATIONAL INSURANCE CO. LTD
1ST FLOOR, MANJUNATHA COMPLEX
BUS STAND ROAD
HASSAN - 573 201.
...RESPONDENTS
(BY SRI. S V HEGDE MULKHAND ADVOCATE FOR R2;
SRI. B.A. RAMAKRISHNA ADVOCATE FOR R4;
R1 AND R3 SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.07.2015 PASSED IN MVC NO.
1503/13 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL
JUDGE & MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
Even though the appeal is listed for admission, with the consent of learned counsel for both the parties, the appeal is -3- NC: 2024:KHC:42735 MFA No. 1562 of 2016 taken up for disposal, since the Trial Court records are already secured and are on record.
2. The appeal is filed by the claimant seeking enhancement of compensation.
3. Brief facts of the case are:-
That on 11.05.2013 at about 4.30 p.m. when the claimant was proceeding to his native village Banavase, which is near Ballupete in the Car bearing Registration No.KA-46-M-0527 and at that time, a Sand loaded lorry bearing Reg.No.KA-01- AB-700 came from Sakleshpura, N.H.48, near Singapur Temple, Alur Taluk, with high speed and in a rash and negligent manner and by coming on the wrong side of the road, dashed to the front portion of the Car, on account of which the claimant has suffered grievous injuries. Therefore, upon the claim petition filed by the claimant under Section 166 of the Motor Vehicles Act, the Tribunal has awarded compensation of a sum of Rs.11,73,000/- along with interest at the rate of 6% p.a. from the date of petition till realization -4- NC: 2024:KHC:42735 MFA No. 1562 of 2016 (excluding interest on future medical expenses) from respondent Nos.1 and 2.
4. Learned counsel for the appellant/claimant submitted that as per the medical records and Doctor's evidence the claimant has suffered so many grievous injuries to the entire body and also the brain of the claimant was severely affected causing Neuropsycological problems. But the Tribunal has taken the disability at 20%, which is contrary to the medical evidence on record. Therefore, prays for enhancement of compensation. It is further argued that though the Doctors PWs.2 and 3 have stated that the claimant has suffered 50% of permanent physical disability towards whole body, but considering the injuries sustained and the claimant is not able to walk independently and his left upper limb has become completely functionless and the claimant is not able to walk freely and stand without support of other person. Therefore, prays to grant compensation by holding that the claimant has sustained 100% functional disability. It is further submitted that the monthly income taken by the Tribunal is on the lesser -5- NC: 2024:KHC:42735 MFA No. 1562 of 2016 side, since the claimant is a Graduate/Bachelor of Computer Application and has met with an accident at the young age of 23 years. The Tribunal has not awarded compensation towards loss of 'future prospects in life'. Further the Tribunal without any reasons has awarded lesser compensation towards medical expenses and Hospital charges and submitted that the compensation granted on other heads is also found to be on the lesser side, hence he prays to enhance the compensation.
5. On the other hand, learned counsel for the respondent/Insurance Company submitted that the Tribunal after considering the evidence on record has correctly assessed the quantum of compensation, which needs no interference. Therefore, prays to dismiss the appeal. Further submitted that the Doctors PW.2 and PW.3, though have stated the claimant has suffered 50% permanent physical disability, but the Tribunal has considered the functional disability at 20%, which is just and proper. Therefore, in sum and substance of the argument canvassed by the learned -6- NC: 2024:KHC:42735 MFA No. 1562 of 2016 counsel for the 4th respondent that the Tribunal has correctly assessed the compensation and accordingly granted. Hence prays to dismiss the appeal.
6. Upon hearing the rival submissions and perusal of the records, the following point arises for consideration :-
"Whether, under the facts and circumstances of the case, the claimant is entitled to enhanced compensation, considering the nature of injuries sustained and disability suffered by the claimant ?"
7. The occurrence of the accident, injuries sustained and disability suffered by the claimant are not in dispute. The Tribunal has awarded compensation under various heads as follows :-
1. Pain, Shock and agony Rs. 75,000.00
2. Medical expenses, Rs. 8,00,000.00 Attendant, Conveyance, food, diet, nourishment, etc.
3. Loss of income during Rs. 32,000.00 treatment period.
4. Expenses towards future Rs. 50,000.00 medical expenses -7- NC: 2024:KHC:42735 MFA No. 1562 of 2016
5. Loss of income on account Rs 2,16,000.00 of permanent disabilities.
Total Rs. 11,73,000.00
8. The claimant is a Graduate / Bachelor of Computer Application and was working as a Technician in M/s. Garuda Chemicals, Hassan, and met with an accident when the claimant was at the young age of 23 years. Ex.P8 is the wound certificate, which proves that the claimant has suffered following injuries :-
1) Sutured wound over forehead left side 15 cm;
2) Abrasions over chest and Abdomen;
3) Severe head injury - multiple contusions in right temporal lobes, Territorial sub dural Haematoma and diffuse brain injury;
4) Fracture of shaft of left femur;
5) Fracture right clavicle;
6) Bilateral Rib fractures with Haemo-pneumo-thorax;
7) Fracture lower 1/3rd of left ulna.
9. According to the Doctors' opinion, the injury No.2 is simple in nature and rest of the other injuries are grievous in nature. The claimant has examined Doctors PW.2 and PW.3, -8- NC: 2024:KHC:42735 MFA No. 1562 of 2016 who are Orthopaedic and Neuro Surgeons respectively. These Doctors have been examined through Court Commissioners. The Doctor PW.2, who is an Orthopaedic Surgeon and Vice President of Sagar Hospital, Bangalore, has deposed that on 11.04.2013 the claimant was admitted to the Hospital as inpatient, with history of road traffic accident. It is evidence of Doctor PW.2 that the claimant has suffered following fractured injuries :-
1) Fracture - shaft of left femur;
2) Fracture - right clavicle;
3) Fracture - Rigit first rib;
4) Fracture - Left second, third and fourth ribs with bilateral Haemo-neumo-thorax;
Fracture - Lower third left ulna.
10. On 13.04.2013 the claimant has underwent surgery and closed reduction and internal fixation with inter locking nail and above Elbow cast was applied for the left alna fracture. The claimant was on ventilator and also tracheotomy was done and the claimant was admitted as inpatient for 35 days -9- NC: 2024:KHC:42735 MFA No. 1562 of 2016 in the hospital from 11.05.2013 to 14.06.2013. The above evidence of the Doctor PW.2 is corroborated by the discharge summary of the inpatient medical records, X-ray taken, disability certificate and case sheet. The documentary evidence such as discharge summary, IP Medical records, X- rays and report sheet by the Nimhans Hospital, Bangalore, are marked as Exs.C1 to C6. Ex.C5 is the disability certificate issued by the Doctor PW2 that the claimant has suffered 89.79% disability to the left upper limb, 65.2% disability to the left lower limb and 51.66% disability to the whole body. It is evidence of Doctor PW.2 that due to the accident injuries, the claimant is not able to walk freely and one assistant is always required to support him for his daily activities.
11. PW.3 is the Doctor, who is Neuro Surgeon in Sagar Hospital, Bangalore. He has given evidence that he has treated the claimant as deposed by Doctor PW.2. It is his evidence that along with PW.2, both the Doctors have given treatment to the claimant. The Doctor PW.3 has given certificate as per Ex.C6, which is Neuropsycological
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 assessment of the claimant. Ex.C6 reveals that the claimant has suffered diffused involvement patient may benefit from cognagative retaining. The Doctor has stated that he has treated the claimant conservatively for brain injury and was on ventilation for long time and tracheotomy was done to the claimant. The Doctor PW.3 has stated though the petitioner is conscious, but dependent for his day to day activities and there is more weakness on the left side. It is opinion given by the Doctor PW.3 that the claimant has suffered 50% disability pertaining to Neuro Physocology.
12. The Tribunal has observed in the evidence and discussed in the judgment that when the claimant has appeared before the Tribunal for giving evidence, it is observed by the Tribunal that the witness is unable to walk and stand and entered the witness box with the support of his father. The claimant is unable to lift his left arm and there is no movement of the left arm. It is observed that the claimant has effectively withstood cross-examination though has suffered head injury.
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NC: 2024:KHC:42735 MFA No. 1562 of 2016
13. Therefore, from the above said evidence, it is conclusively proved that the claimant has suffered grievous injuries to both body and brain and what the Doctor has stated is that claimant has suffered permanent physical disability.
14. If the injured is not able to do the work as he was doing earlier to the accident, then that would amount to 100% functional disability. The Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another 1, wherein at Paragraph Nos.12, 13 and 19, has 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- 1 (2011) 1 SCC 343
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 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 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
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income."
15. Further the Hon'ble Supreme Court in the case of Rekha Jain Vs., National Insurance Co., Ltd., and Others2 was pleased to consider that injured had suffered 100% functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured had suffered injury on the face and her face was disfigured. The injured is no longer able 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% functional disability. The principle of law laid down therein is squarely applicable to the case on hand.
16. The Hon'ble Supreme Court in the case of Jakir Hussein Vs. Sabir and Others3 was pleased to hold that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% permanent 2 (2013) 8 SCC 389 3 (2015) 7 SCC 252
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 physical disability, but it affects the avocation of the injured to carry out the profession as he was doing earlier to the accident. Then it would amount to 100% functional disability. The injured being a driver met with an accident and as per the doctor's evidence, he had 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 was not able to work as a cart-puller and had suffered functional disability at 100% and accordingly, awarded compensation.
4 (2012) 2 SCC 267
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NC: 2024:KHC:42735 MFA No. 1562 of 2016
17. The aspect of permanent physical disability and functional disability are different. In the present case, the claimant has studied Bachelor of Computer Application and was a young boy aged 23 years, he was working as a Technician in M/s. Garuda Chemicals, Hassan. Therefore, at the young age, the claimant has suffered severe injuries and unable to work anywhere else in his life time, as he needs 24 x 7 support from one assistant. Therefore, it is proved that the claimant has suffered 100% functional disability.
18. Therefore, considering the principles of law laid down by the Hon'ble Supreme Court as to what is functional disability and how to assess it and applying the said principles to the instant case, that the claimant has suffered severe disability as discussed above and proved from the medical evidence/ Doctors evidence PWs.2 and 3 that the claimant is unable to work in his lifetime, as he is constrained to depend on one Assistant throughout his life for his day to day activities. therefore, it amounts to 100% functional disability.
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NC: 2024:KHC:42735 MFA No. 1562 of 2016
19. Therefore, in this regard the Tribunal has committed severe error in holding only 20% disability without application of mind to assess difference between permanent/physical disability and functional disability. Therefore, it needs to be modified in this regard.
20. The claimant has claimed that he was getting salary of Rs.4,500/- but in the absence of proof of income notional income is to be taken into consideration and minimum wages to be taken into consideration and accordingly the Karnataka State Legal Services Authority has formulated a chart regarding minimum income to be taken for each year, considering the price index and accordingly for the year 2013 in which year the accident was caused, the minimum notional income to be taken into consideration is Rs.8,000/- per month.
21. As discussed above, it is proved that the claimant has suffered 100% functional disability and therefore, his future prospects is affected severely. Therefore, for loss of future
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 prospects, additional income is to be added as per the principle of law laid down by the Hon'ble Supreme Court in the case of Sidram Vs. Divisional Manager, United India Insurance Company and Another5 and Division Bench judgment of this Court in New India Assurance Company Vs. Abdul S/O. Mehaboob Tahsildar6. As to what would be the percentage of income to be added is guided by the principle of law laid down by the Hon'ble Supreme Court in the decision of National Insurance Company Limited vs. Pranay Sethi7. Though this judgment is pertaining to a case of death, but the principle of law laid down is according to the age of the claimants and nature of the job is concerned what would be the percentage of additional income to be taken into consideration is to be followed in this case. The claimant was a graduate in Bachelor of Computer Application, he was working as a Technician in M/s. Garuda Chemicals at Hassan, and his job is permanent in nature. The claimant was 23 years 5 (2023) 3 SCC 439 6 MFA No.103807/2016 C/w MFA No.103835/2016 and MFA No.103807/2018 7 (2017) SCC 680
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 old as on the date of accident, therefore 50% of the income is to be added towards loss of future prospects in life. The appropriate multiplier is '18'. Therefore, loss of future income' including 'loss of future prospects in life/ loss of earning capacity in future is hereby re-assessed and calculated as follows :-
Rs.8,000/- + 4,000 (50% of Rs.8,000/-) x 18 x 12 = Rs.25,92,000 /-
22. Accordingly, the claimant is entitled to compensation under these heads :-
a. The Tribunal has awarded only Rs.25,000/- towards Injuries, Pain and Suffering. Considering the nature of injuries suffered by the claimant as discussed above, it is appropriate to award a sum of Rs.1,50,000/- towards 'Injuries, Pain and Suffering'.
b. The Tribunal has awarde0d only Rs.8,00,000/- towards medical expenses including conveyance, food, nourishment
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 and Transportation. The approach of the Tribunal in this regard is not correct. The Claimant has produced medical bills and Hospital bills/charges as per Exs.P9, P10 and C1 to an extent of Rs.9,62,250/-. The claimant was also constrained to take panchakarma treatment and follow-up treatment. Just because the author of issuance of medical bills and receipts are not examined, that is not a ground to discard compensation, as per the medical bills and receipts. The claimant was admitted in-patient in the Hospital. Hence, the claimant is entitled to get the complete medical bills. Further the claimant has visited the Hospital for several times, after getting discharged from the Hospital. Therefore, considering all these materials on record as per the evidence of medical bills and prescriptions produced, compensation of Rs.9,62,250/- is awarded towards 'medical and hospitalization charges'.
c. Further from the evidence of PWs.2 and 3, it is revealed that the claimant had to go to Hospital for follow up treatment and spend amount for panchakarma Treatment, therefore for
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 such initial expenses like conveyance, food, nourishment, transportation and attendant charges, compensation of Rs.1,00,000/- is awarded towards 'incidental charges'. d. The claimant was aged 23 years being a BCA Graduate has suffered permanent disability, which is for life time. Therefore, Rs.1,00,000/- is awarded towards 'loss of amenities, enjoyment in life, discomfort and mental agony' e. Further the Doctor has stated for removal of implants and in future the claimant has to spend an amount of Rs.80,000/- towards future medical expenses, but the Tribunal has awarded only Rs.50,000/- which is on the lower side. Therefore, according to the Doctor PW.2 compensation of Rs.80,000/- is awarded towards 'future medical expenses'. f. The claimant has suffered injury and disability at the young age of 23 years and he is unmarried and he has completely lost hopes of getting married. Therefore, a fair compensation of Rs.1,00,000/- is awarded towards 'loss of marriage prospects in life'.
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NC: 2024:KHC:42735 MFA No. 1562 of 2016
21. Thus in all the appellant/claimant is entitled to compensation under various heads as follows :-
1 Injury, pain and Rs. 1,50,000/-
sufferings 2 Medical and Rs. 9,62,250/-
Hospitalization charges
3 Loss of future prospects
Rs. 25,92,000/-
in life
4 Incidental charges Rs. 1,00,000/-
5 Loss of marriage Rs.
1,00,000/-
prospects
6 Loss of amenities Rs. 1,00,000/-
7 Future medical
Rs. 80,000/-
expenses
Total Rs. 40,84,250/-
23. Therefore, the appeal filed by the claimant is laible to be allowed for the reasons stated above. Hence I answer the point No.1 in the affirmative. Accordingly, I proceed to pass the following :-
ORDER i. The appeal is allowed-in-part;
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NC: 2024:KHC:42735 MFA No. 1562 of 2016 ii. The impugned judgment and award dated 01.07.2015 passed in MVC No.1503/2013 by the II Additional Senior Civil Judge and MACT, Hassan, is modified to the extent that the appellant/claimant is entitled to enhanced compensation of Rs.29,11,250/- (Rs.40,84,250/- less Rs.11,73,000/-) along with interest at 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal. iii. The compensation amount does not carry interest for the delayed period of 128 days.
iv. Registry is directed to transmit the TCR along with copy of this order to the Tribunal forthwith.
v. No order as to costs.
vi. Draw award accordingly.
SD/-
(HANCHATE SANJEEVKUMAR)
JUDGE
NG
List No.: 1 Sl No.: 9
CT:RK