Karnataka High Court
The Divisional Manager vs Smt. Sarika W/O Bhau Chendake on 22 September, 2023
Author: S.R. Krishna Kumar
Bench: S.R. Krishna Kumar
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NC: 2023:KHC-D:11530-DB
MFA No. 101869 of 2022
C/W MFA No. 102213 of 2022, MFA No.
103076 of 2022, MFA No. 103210 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
MISCELLANEOUS FIRST APPEAL NO. 101869 OF 2022 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 102213 OF 2022 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 103076 OF 2022 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 103210 OF 2022 (MV-I)
IN MFA NO. 101869/2022
BETWEEN:
SHRI POPAT S/O. RAGHUNATH CHAVAN,
AGE: 46 YEARS, OCC: AGRICULTURE,
COOLIE, R/O: KARANUR, TQ: KAGAL,
DIST: KOLHAPUR NOW RESIDING AT CTS NO. 1127,
1ST CROSS, RUKMNI NAGAR, BELAGAVI-590016.
...APPELLANT
(BY SRI. YASH NADAKARNI, ADVOCATE FOR
SRI. VITTHAL S. TELI, ADVOCATE)
Digitally signed
by
SHIVAKUMAR
AND:
HIREMATH
Date:
2024.01.08
16:44:01 +0530 1. SHRI GANAPATI S/O. BHAU CHENDAKE,
AGE: MAJOR, OCC: BUSINESS,
R/O: GANESH APARTMENT,
19/E WARD PATEL COLONY, KOLHAPUR-416122.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, AMAR EMPIRE,
GOAVES, BASAVESHWAR CIRCLE,
KHANAPUR ROAD, BELAGAVI-590001
...RESPONDENTS
(BY MISS RATNAMALA G.H., ADVOCATE FOR R2)
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NC: 2023:KHC-D:11530-DB
MFA No. 101869 of 2022
C/W MFA No. 102213 of 2022, MFA No.
103076 of 2022, MFA No. 103210 of 2022
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, PRAYED THAT, THE JUDGMENT AND AWARD
DATED 31.01.2022 PASSED IN MVC NO.1854/2019 ON THE
FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
BELAGAVI AND ETC.,
IN MFA NO. 102213/2022
BETWEEN:
SMT. SARIKA W/O. BHAU CHENDAKE,
AGE: 49 YEARS,
OCC: AGRICULTURE COOLIE (NOW NIL),
R/O: KARANUR, TQ: KAGAL, DIST: KOLHAPUR
NOW RESIDING AT CTS NO. 1127,
1 ST CROSS, RUKMNI NAGAR, BELAGAVI-590016.
...APPELLANT
(BY SRI. YASH NADAKARNI, ADVOCATE FOR
SRI. VITTHAL S. TELI, ADVOCATE)
AND:
1. SRI GANAPATI S/O. BHAU CHENDAKE,
AGE: MAJOR, OCC: BUSINESS,
R/O: GANESH APARTMENT,
19/E WARD PATEL COLONY, KOLHAPUR-416122.
2. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, AMAR EMPIRE,
GOAVES, BASAVESHWAR CIRCLE,
KHANAPUR ROAD, BELAGAVI -590001.
...RESPONDENTS
(BY SMT. ARUNA DESHPANDE, ADVOCATE FOR R2)
THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES
ACT, PRAYING THAT, THE JUDGMENT AND AWARD DATED
31.01.2022 PASSED IN MVC NO.1855/2019 ON THE FILE OF
THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI
AND ETC.,
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NC: 2023:KHC-D:11530-DB
MFA No. 101869 of 2022
C/W MFA No. 102213 of 2022, MFA No.
103076 of 2022, MFA No. 103210 of 2022
IN MFA NO. 103076/2022
BETWEEN:
THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, AMAR EMPIRE, GOAVES,
BASAVESHWAR CIRCLE, KHANAPUR ROAD,
BELAGAVI,
BY ITS AUTHORIZED SIGNATORY.
...APPELLANT
(BY MISS. RATNAMALA G.H., ADVOCATE)
AND:
1. SMT. SARIKA W/O. BHAU CHENDAKE,
AGE: 48 YEARS,
OCC: AGRICULTURE AND COOLIE, (NOW NIL),
R/O: KARANUR, TQ:KAGAL, DIST: KOLHAPUR.
NOW RESIDING AT CTS NO.1127,
1ST CROSS, RUKMINI NAGAR, BELAGAVI.
2. SHRI GANAPATI S/O. BHAU CHENDAKE
AGE: MAJOR, OCC: BUSINESS,
R/O: GANESH APARTMENT,
19/E WARD, PATEL COLONY, KOLHAPUR,
(OWNER OF MARUTI CAR NO.MH-10/AG-1306).
...RESPONDENTS
(BY SRI. YASH NADAKARNI, ADVOCATE FOR
SRI. VITTHAL S. TELI, ADVOCATE FOR R1)
THIS MISCELLANEOUS FIRST APPEAL FILED U/S.173(1)
OF MOTOR VEHICLES ACT, 1988, PRAYING TO SET ASIDE THE
JUDGMENT AND AWARD DATED 31.01.2022 PASSED IN MVC
NO.1855/2019 ON THE FILE OF THE IX ADDITIONAL DISTRICT
AND SESSIONS JUDGE AND ADDITIONAL MOTOR ACCIDENT
CLAIMS TRIBUNAL, BELAGAVI AND ETC.,
-4-
NC: 2023:KHC-D:11530-DB
MFA No. 101869 of 2022
C/W MFA No. 102213 of 2022, MFA No.
103076 of 2022, MFA No. 103210 of 2022
IN MFA NO. 103210/2022
BETWEEN:
THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE, AMAR EMPIRE GOAVES,
BASAVESWAR CIRCLE, KHANAPUR ROAD,
BELAGAVI BY ITS AUTHORIZED REPRESENTATIVE.
...APPELLANT
(BY MISS. RATNAMALA G.H., ADVOCATE)
AND:
1. SHRI POPAT S/O. RAGHUNATH CHAVAN
AGE: 46 YEARS,
OCC: AGRICULTURE AND COOLIE (NOW NIL),
R/O: KARANUR, TQ: KAGAL, DIST: KOLHAPUR,
NOW RESIDING AT CTS NO.1127,
1ST CROSS, RUKMINI NAGAR, BELAGAVI.
2. SHRI GANAPATI S/O. BHAU CHENDAKE,
AGE: MAJOR, OCC: BUSINESS,
R/O: GANESH APARTMENT,
19/E WARD, PATEL COLONY, KOLHAPUR,
(OWNER OF MARUTI CAR NO.MH-10/AG-1306)
...RESPONDENTS
(BY SRI. YASH NADAKARNI, ADVOCATE FOR
SRI. VITTHAL S. TELI, ADVOCATE FOR R1)
THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
SECTION 173(1) OF MOTOR VEHICLE ACT, 1988, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 31.1.2022
PASSED IN MVC NO.1854/2019 ON THE FILE OF THE IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL BELAGAVI
AND ETC.,
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
BASAVARAJA, J., DELIVERED THE FOLLOWING:
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NC: 2023:KHC-D:11530-DB
MFA No. 101869 of 2022
C/W MFA No. 102213 of 2022, MFA No.
103076 of 2022, MFA No. 103210 of 2022
JUDGMENT
All these appeals arising out of common judgment and award dated 31st January, 2022 passed in MVCs No.1854 and 1855 of 2019 by IX Additional District and Sessions Judge and Additional Motor Accident Claims Tribunal, Belagavi, (for brevity, hereinafter referred to as the "Tribunal").
2. For the sake of convenience, the parties in this appeal are referred to as per their status and rank before the Tribunal.
3. Brief facts of the petition are that on 31st March, 2019, at about 3.30 pm, the petitioners were proceeding on motorcycle bearing Registration No.MH-09/EM-1235 from Kunnur to Karanur village. One Sri Popat Raghunath Chavan who is petitioner in MVC No.1854 of 2019 was riding the motorcycle and Sarika the petitioner in MVC No.1855 of 2019, was the pillion rider. The rider was riding the motorcycle with moderate speed when they were proceeding near Godai Halla within the limits of Kunnur village, at that time, the driver of Maruti 800 car bearing Registration No.MH-10/AG-1306 came from opposite side on wrong side in a rash and negligent manner in high speed, so as to endanger human life and lost control over -6- NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 the dashed to the motorcycle and caused the accident. As a result, riders of the motorcycle fell on the road sustaining grievous injuries. Immediately, after the accident, the petitioners were shifted to Kolhapur Institute of Orthopedics and Trauma Hospital, Kolhapur where they were admitted as inpatients and have undergone surgery. They are still under follow-up treatment. Further it is stated that, prior to accident, petitioner in MVC No.1854 of 2019 was hale and healthy, aged about 43 years and was doing agriculture coolie work and earning Rs.30,000/- per month and was managing the family. Due to the accidental injuries and amputation of his right leg above knee, the petitioner has become permanently physically disabled and he is not able to do any work as he used to prior to accident. The petitioner in MVC No.1855 of 2019, was hale and healthy prior to accident and she was doing agriculture coolie work and thereby was earning Rs.30,000/- per month and by the said income, she was maintaining her family. Due to the accidental injuries, the petitioner has become permanently physically disabled and she is unable to work as she used to prior to accident. The accident in question took place due to the rash and negligent act of the driver of the -7- NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 offending car. Hence, respondents 1 and 2 being the owner and insurer of the car involved in the accident are jointly and severally liable to pay the compensation to petitioners. On all these grounds preferred claim petitions.
4. Pursuant to service of notice, Respondent No.1 was placed ex-parte and respondent No.2 appeared through his counsel and filed objections. The content of the objection is that the driver of the car had no valid and effective driving licence as on the date of accident. Further, it is denied as to the averments made in the claim petitions and have sought for dismissal of the claim petitions.
5. Based on the pleadings, the Tribunal framed common issues as under:
1. Whether he petitioners proves that on 31.03.2019 at about 3.30 p.m. on Kunnur-
Gajabarwadi Road, near Godai Halla, within the limits of Kunnur village, within the limits of Nippani Rural P.S., the petitioners sustained injuries in the accident occurred due to rash or negligent driving of the Car bearing registration No.MH-10/AG-1306 by its driver.
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022
2. Whether the petitioner are entitled for compensation ? if so, what amount and from whom ?
3. What Order ?
6. To prove the case of the petitioners, three witnesses were examined as PWs 1 to 3 and nine documents were marked as Exhibits P1 to P9. Respondents have not adduced any oral evidence, but policy of insurance is marked as Exhibit R1.
7. Upon hearing the learned counsel for the parties, the Tribunal answered the issues as under:
Issue No.1 in both cases : In the affirmative Issue No.2 in both cases :Partly in the affirmative Issue No.3 in both cases : As per final order
8. In view of the above finding, the Tribunal allowed the claim petitions in part and awarded compensation of Rs.15,77,270/- and Rs.5,48,264/- respectively in both petitions with interest at 6% per annum from the date of petition till realisation. Being aggrieved by the award passed by the Tribunal, the Insurance has preferred appeals in Miscellaneous First Appeal Nos.103076 and 103210 of 2022 questioning the liability as well as quantum; and being not satisfied with the compensation, petitioners have preferred Miscellaneous First -9- NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 Appeals No.101869 and 102213 of 2022 seeking enhancement of compensation.
9. Learned counsel appearing for the appellant-Insurance Company submits that the Tribunal has not considered Exhibit P3 spot panchanama and sketch. Gajarbawadi is between Kunnar and Kharanur villages, Kunnur village is situated towards eastern side and Kharanur is situated on the western side and on both sides of the asphalt road there is four feet kachha road on both sides i.e. northern and southern sides. On the date of accident, the car in question was from Kharanur towards Kunnur, i.e from west to east and the petitioners were going from Kunnur to Kharanur side and by looking to spot panchnama, the accident between the vehicles has taken place at northern side of the road, i.e. four feet away from kachha road. The situation of road and vehicles on road is admitted by petitioners, hence it is clear that the rider of motorcycle has come to the northern side of the road and dashed the car. Hence, the accident has taken place on the northern side of the road wherein car was in correct side of the road and the rider of the motorcycle has dashed to the car but the police have filed charge sheet on the driver of the car which is against to law.
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 The rider of the motorcycle had no driving licence to drive the motorcycle. The Doctor who had treated the petitioners has not given evidence. Hence, the evidence of PW3 has to be discarded. No eye-witnesses have been examined before the Court. The medical bills produced by the petitioners are not proved. On all these grounds sought for allowing the appeals and dismiss the claim petitions.
10. On the other hand, the learned counsel for the respondent/claimants submits that the Tribunal has properly appreciated the evidence on record as to liability of insurance company. He further submits that the Tribunal has not awarded the just compensation in accordance with law and decisions of the Hon'ble Supreme Court and hence sought to allow the appeals by enhancing the compensation. To substantiate his submission, the learned counsel relied upon the decision of this Court rendered in the case of GANGADHARA v. KRISHNAMURTHY AND ANOTHER rendered in Miscellaneous First Appeal No.6025 of 2018 decided on 19th November, 2019.
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022
11. Having heard the learned counsel for the parties and on perusal of record, the following points would arise for our consideration in these appeals:
1. Whether the appellant-Insurance Company has made out a ground to interfere with the impugned judgment and award as to the liability and also with regard to quantum of compensation awarded by the Tribunal?
2. Whether the claimants are entitled for enhancement of compensation as sought for?
3. What order?
12. Our answer to the above points are as under:
Point No.1: in the negative;
Point No.2: partly in the affirmative; Point No.3: as per final order Regarding Point No.1:
13. We have carefully examined the material placed before this court. The case of the claimants is that on 31st March, 2019, at about 3.00 pm, petitioners were proceeding on motorcycle from Kunnur towards Kharanur village and when they near Godaihalla, near Gajarbwadi, the Maruti car came
- 12 -
NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 from wrong side in a rash and negligent manner and dashed to the motorcycle, resulting in petitioners sustaining injuries. To substantiate their case, the petitioners were examined as PWs1 and 2. They have deposed as to the accident, as alleged in claim petitions. Apart from oral evidence, they have produced documents. A perusal of the documents makes it clear that on the basis of the complaint filed by one Shankar, Nippani Rural Police have registered a case in Crime No.31 of 2019 against the driver of car for commission of offences punishable under Sections 279 and 338 Indian Penal Code and submitted First Information Report to the court. Thereafter, police visited to the spot and conducted spot panchanama in the presence of panchas, prepared rough sketch, obtained MV report, wound certificate, recorded statement of witnesses and upon investigation, the Investigating Officer submitted charge sheet against the driver of the car for commission of offence punishable under Section 279 and 338 of Indian Penal Code. During the course of cross-examination of PWs1 and 2, they have not questioned as to first information report, spot panchnama, rough sketch and also the charge sheet submitted by the Investigating Officer. Respondents have not adduced
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 any evidence before the court to discard the evidence placed by claimants. Without pleading and evidence, for the first time before this Court, the Insurance Company is urging that the accident took place due to rash and negligent act on the part of the rider of motorcycle, which cannot be accepted. The Tribunal has properly appreciated the evidence on record in accordance with law and facts and held that the accident occurred due to rash and negligent act on the part of the rider of the car. Accordingly, we answer point No.1 in the negative. Regarding Point No.2:
14. As regards quantum of compensation is concerned, in Miscellaneous First Appeal No.101869 of 2022 pertaining to MVC No.1854 of 2019 is concerned, the petitioner who is examined as PW1, has deposed that immediately after the accident, he was shifted to Kolhapur Institute of Orthopedics and Trauma Hospital, Kolhapur, he has sustained grievous injuries, skin punctured wound with Inilateral Uniplanar External Fixator over right anteromedial aspect of tibia amputation of right leg and was an inpatient in the said hospital from 31st April to 29th April, 2019 and during the said period,
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 operation was conducted on his right leg four times and steel rods and blades were inserted and external fixature was also done on his right leg and in spite of best treatment, wounds were not cured and on 16th April, 2019, his right leg was amputated above knee and after amputation, debridement and skin grafting was done and regular treatment was given and after discharge he has taken follow-up treatment at the above hospital for a period of 4 to 5 months. During his hospitalisation, his wife and were mother attending to him in the hospital he has spent more than Rs.5.00 lakh for treatment, medicine and miscellaneous expenses and in spite of best treatment, the accidental injuries are not cured and he has suffered permanent physical disability and with the said disability he has lost his working and earning capacity totally. Further, he has deposed that prior to accident, he was hale and healthy was doing agriculture work and earning Rs.30,000/- per month. He has produced 87 hospital documents such as medical prescriptions, medical bills, lab reports, medical prescriptions, doppler reports, CT scan report, discharge summary, OPD cards, disability report, X-ray report, X-ray films, as per Exhibits P7 to P17. PW3-Dr. Satish Devgouda
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 Patil, has deposed in his evidence that, considering the clinical and radiological finding and after going through Almeco WHO manual and Government Gazette 2018 Manual, the patient, in his opinion, has got permanent physical disability amounting to 80% to right lower limb and he has issued certificate Exhibit P15 to that effect, in which the functional disability of the petitioner is mentioned. Exhibit P16 is the radiogram of right femur.
15. A perusal of the judgment in the case of GANGADHARA (supra), this Court relying upon the decision of RAJ KUMAR v. AJAY KUMAR reported in 2011(1) SCC343 has assessed the disability of the injured in the said case at 100% as the claimant was agriculturist on account of amputation of his left leg above the knee. In the case on hand, the Doctor PW3 has assessed the disability at 80%. It is not in dispute that the petitioner's right leg above knee has been amputated. The petitioner is an agriculturist. Keeping in mind, the observation made by the Hon'ble Supreme Court in the case of RAJ KUMAR (supra) and also this Court in the case of GANGADHARA (supra), it is appropriate to assess the percentage of permanent physical disability at 90%.
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 Considering the chart issued by the Karnataka State Legal Services Authority and also the occupation of the petitioner, it is just and proper to assess the income of the claimant at Rs.13,250/-. In view of decision of NATIONAL INSURANCE COMPANY LIMITED v. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, 25% is to be added to the income towards future prospects. Accordingly, it comes to Rs.16,563/-. As per the decision of the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009)6 SCC 121, the appropriate multiplier would be 14 and the same is adopted by the Tribunal. In the result, the loss of future earning would come to Rs.25,04,325/- (Rs.16,563/- x 12 x 14 x 90%). Further, a sum of Rs.1,00,000/- is awarded towards pain and suffering.
16. Since this court has assessed the disability at the rate of 90%, the question of loss of earning during laid up period does not arise and the petitioner is not entitled for compensation under loss of income during the laid-up period. It is pertinent here to refer to the decision of the Hon'ble Supreme Court in the case of KAJAL v. JAGDISH CHAND reported in (2020) 4 SCC 413 it is observed thus:
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 "It would be apposite at this stage to refer to the observation of Lord Reid in Taylor v. O'Connor:
"Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year's dependency. That is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved, the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special, I think, that these matters must have separate consideration if even rough justice is to be done and expert evidence may be valuable or even almost essential. The special factor in the present case is the incidence of Income Tax and, it may be, surtax."
17. Further at paragraphs 24 and 25 of the said judgment, it is observed thus:
- 18 -
NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 "24. This Court has reaffirmed the multiplier method in various cases like Municipal Corporation of Delhi v. Subhagwati 10 1971 AC 115 and Others, U.P. State Road Transport Corporation and Others V. Trilok Chandra and Others, Sandeep Khanjuja v. Atul Dande.
This Court has also recognised that Schedule II of the Act can be used as a guide for the multiplier to be applied in each case. Keeping the claimant's age in mind, the multiplier in this case should be 18 as opposed to 44 taken by the High Court.
25. Having held so, we are clearly of the view that the basic amount taken for determining attendant charges is very much on the lower side. We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores. The claimant has placed before us a notification of the State of Haryana of the year 2010, wherein the wages for skilled labourer is Rs.4846/ per month. We, therefore, assess the cost of one attendant at Rs.5,000/- and she will require two
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 attendants which works out to Rs.10,000/- per month, which comes to Rs.1,20,000/- per annum, and using the multiplier of 18 it works out to Rs.21,60,000/- for attendant charges for her entire life. This takes care of all the pecuniary damages."
18. In the above said case, the Hon'ble Supreme Court, considering the tender age of child, the difficulty of the child in handling her periods, so also considering her marriage prospects, opined that the claimant, in the said case, require two attendants and accordingly, considering Rs.5,000/- per attendant, has awarded Rs.10,000/- per monthtowards attendant charges for the entire life. In the case on hand, since the claimant is aged 43 years, we deem it appropriate that the one attendant would suffice to take care of the appellant. Accordingly, the amount towards attendant charges would be Rs.8,40,000/- (Rs.5,000/- x 12 x 14).
19. The Tribunal has awarded Rs.8,68,760/- towards medical expenses and the same is retained. In all, the claimant is entitled for compensation as under:
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NC: 2023:KHC-D:11530-DB
MFA No. 101869 of 2022
C/W MFA No. 102213 of 2022, MFA No.
103076 of 2022, MFA No. 103210 of 2022
Sl.No. Head Amount (Rs.)
1. Pain and suffering 1,00,000.00
2. Loss of amenities 1,00,000.00
3. Loss of future earning 25,04,325.00
4. Towards attendant charges 8,40,000.00
5. Medical expenses 8,68,760.00
Total 44,13,085.00
20. As regards quantum of compensation in
Miscellaneous First Appeal No.102213 of 2022 pertaining to MVC No.1855 of 2019 in is concerned, PW2 Smt. Sarika, has deposed in her evidence that due to accident she has sustained grievous injuries skin punctured wound over lateral minacious swelling present over left ankle and foot, fracture of left tibia and fibula distal one-third etc. Further she has deposed as to the treatment and operation as inpatient, so also, as to loss of income during the period of treatment. Apart from oral evidence, she has produced MLC register extract, medical prescriptions, medical bills, Lab reports, CT scan reports and photographs, CT scan report of Brain, discharge summary, disability certificate, X-ray report, X-ray films as per Exhibits P18 to P29. PW3-Dr. Satish Devgouda Patil, has deposed in his evidence as to issuance of disability certificate Exhibit P27. The function disability is assessed at 40%. Considering the
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022 evidence placed by the petitioner, the Tribunal has assessed the disability at 13% to the whole body. On re-appreciation of evidence on record, we are of the opinion that the it is just and proper to assess the disability at 15% to the whole body. The Tribunal has rightly assessed the notional income at Rs.13,250/- as per the chart issued by the Karnataka State Legal Services Authority. The appropriate multiplier commensurate to the age of the petitioner would be 15, and the same is rightly adopted by the Tribunal. Accordingly, the loss of future income comes to Rs.3,57,750/-. The Tribunal has awarded Rs.1,28,464/- towards medical expenses and the same is left unaltered. Considering the nature of injury, pain and agony and other discomforts, we are inclined to re-assess the compensation as under:
Sl.No. Head Amount (Rs.)
1. Pain and suffering 50,000.00
2. Loss of amenities 50,000.00
3. Loss of future earning 3,57,750.00
4. Loss of earning during treatment 39,750.00
period
5. Conveyance, food, nourishment and 40,000.00
attendant charges
6. Medical Expenses 1,28,464.00
Total 6,65,964.00
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NC: 2023:KHC-D:11530-DB
MFA No. 101869 of 2022
C/W MFA No. 102213 of 2022, MFA No.
103076 of 2022, MFA No. 103210 of 2022
Hence, we answer Point No.2, partly in the affirmative. Regarding Point No.3:
21. For the aforesaid reasons and discussions, we proceed to pass the following:
ORDER
1. Miscellaneous First Appeals No.103076 and 103210 of 2022 preferred by the Insurance company are dismissed;
2. Miscellaneous First Appeals No.101869 and 102212 of 2022 preferred by the claimants are allowed in part:
(i) Impugned judgment and award 31st
January, 2022 dated passed in MVC
No.1854 of 2019 and 1855 of 2019 are
modified by enhancing the compensation to Rs.44,13,085/- as against Rs.15,77,270/- in MVC No.1854 of 2019; and by enhancing the compensation to Rs.6,65,964/- as against Rs.5,48,264/- awarded in MVC No.1855 of 2019.
3. The respondent-insurance is directed to deposit the compensation amount before the Tribunal within sixty days from the date of receipt of this judgment;
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NC: 2023:KHC-D:11530-DB MFA No. 101869 of 2022 C/W MFA No. 102213 of 2022, MFA No. 103076 of 2022, MFA No. 103210 of 2022
4. The apportionment and disbursement of the compensation would be as per the award of the Tribunal;
5. Amount in deposit if any, shall be transmitted to the Tribunal forthwith;
6. Registry to draw award accordingly;
7. Send the copy of this judgment along with trial Court records to the concerned court.
Sd/-
JUDGE Sd/-
JUDGE RH List No.: 1 Sl No.: 14