Karnataka High Court
Sri. Mallikarjunaswamy vs Sri. Manjunath M on 14 July, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC:24665
MFA No. 6317 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 6317 OF 2016 (MV-I)
BETWEEN:
SRI. MALLIKARJUNASWAMY,
S/O. GURUSWAMY,
AGED ABOUT 21 YEARS,
R/AT: KURBUR VILLAGE,
MUGUR HOBLI, T. NARSIPURA TALUK,
MYSORE DISTRICT - 571 124.
...APPELLANT
(BY SRI. H.V.BHANU PRAKASH., ADVOCATE)
AND:
1. SRI. MANJUNATH. M.,
S/O. MAHADEVAGOWDA,
AGED ABOUT 34 YEARS,
Digitally signed by
VIJAYALAKSHMI B N R/AT: HOSUR VILLAGE,
Location: HIGH
COURT OF YALANDHUR TALUK,
KARNATAKA
CHAMARAJNAGAR DISTRICT,
KARNATAKA - 571 441,
(DRIVER OF K.S.R.T.C.).
2. THE DIVISIONAL CONTROLLER,
K.S.R.T.C. RURAL DIVISION,
BANNIMANTAP, MYSORE - 570 015.
...RESPONDENTS
(BY SRI. B. PALAKSHAIAH., ADVOCATE FOR R2;
R1 - NOTICE DISPENSED WITH,
VIDE ORDER DATED: 22/11/2017)
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NC: 2023:KHC:24665
MFA No. 6317 of 2016
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:05/02/2016 PASSED IN MVC
NO.230/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
J.M.F.C., KOLLEGAL, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the appellant/claimant challenging the judgment and award dated 05.02.2016 in MVC.No.230/2013 passed by the Senior Civil Judge and Judicial Magistrate First Class, Kollegal, for seeking enhancement of compensation.
2. Brief facts of the case are as under:
On 19.07.2012 at about 3.15 p.m., the claimant and others were traveling in a tempo bearing reg.No.KA-55- 1857 on Kollegala - M.M.Hills Main Road, when the said temp reached near Anjaneyaswamy Temple, Yelemala, at that time driver of the KSRTC bus bearing reg.No.KA-10-F--3-
NC: 2023:KHC:24665 MFA No. 6317 of 2016 0081 driven the same in a rash and negligent manner and dashed to the tempo. Due to which, the claimant has sustained injuries on his head, right shoulder and other parts of the body. Therefore, the claimant filed claim petition under Section 166 of MV Act, seeking compensation.
3. Heard the arguments on both sides and perused the records.
4. The Tribunal has awarded the compensation under various heads as follows:
Sl.No. Particulars Amount (in.Rs.)
1. Pain and sufferings 75,000.00
2. Incidental expenses like food, 25,000.00
nourishment, attendant
expenses, etc.
3. Medical expenses 4,44,962.00
4. Loss of income during laid up 35,000.00
period
5. Convenience charges 25,000.00
6. Loss of future earning capacity 3,52,750.00
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NC: 2023:KHC:24665
MFA No. 6317 of 2016
7. Loss of amenities in life 75,000.00
8. Future medical expenses 30,000.00
9. Loss of marriage prospects 25,000.00
Total 10,87,712.00
5. From the medical evidence on record, it is proved that the claimant has sustained crush injury over right leg and right foot, Type III C fracture of both bones of right leg with vascular compromise and right ulnar styolid process fracture and as per the discharge summary produced at Ex.P13 which is issued by Appollo Hospital, Mysore, it is stated that the claimant's right fore foot amputation was done, skin grafting was done and external fixation of right tibia and ankle was done.
6. It is stated that the claimant was working as a car driver, paddy merchant and was doing agricultural work. The Tribunal had considered the notional income at Rs.7,000/- per month and held that the claimant has suffered 23.33% of physical disability to the whole body and accordingly, granted compensation of Rs.3,52,750/- -5-
NC: 2023:KHC:24665 MFA No. 6317 of 2016 under the head 'loss of future earning capacity due to disability'.
7. In the present case, the claimant was working as a car driver, doing paddy business and was also doing agricultural work. But the claimant has not produced any material on record regarding his exact income and occupation. The claimant had suffered amputation of right foot. Hence, the claimant has suffered his entire earning capacity by working as a driver and doing agricultural work. CW.1 - doctor has deposed that the claimant has suffered 70% of permanent physical disability of his right leg, but the functional disability is not the same as that of physical disability. If the injured is not able to do the work as he was doing earlier to the accident, then that would be amounting to 100% of functional disability. The Hon'ble Supreme Court in the case of Raj Kumar Vs. Ajay -6- NC: 2023:KHC:24665 MFA No. 6317 of 2016 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 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 1 (2011) 1 SCC 343 -7- NC: 2023:KHC:24665 MFA No. 6317 of 2016 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."
8. Further the Hon'ble Supreme Court in the case of Rekha Jain Vs., National Insurance Co., Ltd., and Others2 were pleased to consider that the injured has suffered 100% of functional disability as the injured was a 2 (2013) 8 SCC 389 -8- NC: 2023:KHC:24665 MFA No. 6317 of 2016 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.
9. 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 injured being a driver met with an accident and as per the doctor's evidence, he suffered 55% of permanent physical disability and cannot 3 (2015) 7 SCC 252 -9- NC: 2023:KHC:24665 MFA No. 6317 of 2016 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.
10. The principle of law laid down regarding permanent physical disability and functional disability is 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 4 (2012) 2 SCC 267
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NC: 2023:KHC:24665 MFA No. 6317 of 2016 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 driver, paddy business and agricultural work and due to amputation of right foot, the claimant is not able to do work as before the accident. Therefore, he suffered 100% of functional disability affecting the earning capacity. Therefore, it is considered in the present case that the claimant has suffered 100% of permanent physical disability.
11. The Tribunal has correctly taken the notional income at Rs.7,000/- per month and multiplier of '18' by considering the age of the claimant but has not added loss of future prospects in life. Since, the claimant has suffered 100% of functional disability, he has suffered loss of future prospects in life. Hence, 40% is to be added to the income as per the judgment of the Hon'ble Supreme Court in the
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NC: 2023:KHC:24665 MFA No. 6317 of 2016 case of National Insurance Co. Ltd. Vs. Pranay Sethi5 and decision of this Court in the case of New India Assurance Company Vs. Abdul S/o Mehaboob Tahasildar6. The Division Bench in Abdul's case was pleased to grant compensation by adding income towards loss of future prospects in life in case of injury and disability sustained. In the above stated case, the claimant - appellant was a tailor and had suffered 20% disability. Therefore, it was granted compensation including loss of future prospects in life. It 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 read 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 5 (2017) 16 SCC 680 6 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018 DD.27.05.2022
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NC: 2023:KHC:24665 MFA No. 6317 of 2016 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 naive 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
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NC: 2023:KHC:24665 MFA No. 6317 of 2016 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 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
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NC: 2023:KHC:24665 MFA No. 6317 of 2016 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 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
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NC: 2023:KHC:24665 MFA No. 6317 of 2016 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 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/-"
12. Therefore, the 'loss of future income due to disability including loss of future prospects in life' is hereby re-assessed and quantified as follows:
Rs.7,000/- + Rs.2,800/- (40% of Rs.7,000/-)=9,800/-
Rs.9,800/- x 18 x 12 = Rs.21,16,800/-
Accordingly, Rs.21,16,800/-is awarded under the head loss of future income due to disability including loss of future prospects in life.
13. Further, the compensation granted under other heads are found to be just and proper. Hence, they are kept in tack.
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NC: 2023:KHC:24665 MFA No. 6317 of 2016
14. Thus, in all, the appellant/claimant is entitled to the compensation as follows:
Sl.No. Particulars Amount
(in.Rs.)
1. Pain and sufferings 75,000.00 kept in tact
2. Incidental expenses like 25,000.00 kept in tact
food, nourishment,
attendant expenses,
etc.
3. Medical expenses 4,44,962.00 kept in tact
4. Loss of income during 35,000.00 kept in tact
laid up period
5. Convenience charges 25,000.00 kept in tact
6. Loss of future income 21,16,800.00 due to disability including loss of future prospects in life
7. Loss of amenities in life 75,000.00 kept in tact
8. Future medical 30,000.00 kept in tact expenses
9. Loss of marriage 25,000.00 kept in tact prospects Total 28,51,762.00
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NC: 2023:KHC:24665 MFA No. 6317 of 2016
15. The Tribunal has awarded compensation of Rs.10,87,712/-, but the appellant/claimant is entitled to total compensation of Rs.28,51,762/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.17,64,050/- (Rs.28,51,762/- - Rs.10,87,712/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.17,64,050/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal. Accordingly, I proceed to pass the following:
ORDER i. The Miscellaneous First Appeal is allowed-in-
part.
ii. The impugned judgment and award dated 05.02.2016 in MVC.No.230/2013 passed by the Senior Civil Judge and JMFC, Kollegal, is modified to the extent that the appellant/claimant is entitled to enhanced
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NC: 2023:KHC:24665 MFA No. 6317 of 2016 compensation of Rs.17,64,050/- along with the rate of 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 appellant/claimant is not entitled for interest for the delayed period of 61 days in filing the appeal.
iv. Draw award accordingly.
v. No order as to costs.
Registry is directed to return the TCR along with certified copy of this order to the Tribunal, forthwith.
Sd/-
JUDGE KA CT:STK