Karnataka High Court
M.Rajashekar S/O Basanagouda Meti ... vs Channabasava S/O Shankaragouda on 10 June, 2019
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR.JUSTICE B.M.SHYAM PRASAD
MFA NO.31372/2012 (MV)
BETWEEN:
M. Rajashekar
S/o Basanagouda Meti Patil
Age: 23 years, Occ: ITI Student
R/o EJ Hosalli
Tq. Sindhanur - 584 123
... Appellant
(By Sri Basavaraj R. Math, Advocate)
AND:
1. Channabasava S/o Shankaragouda
Occ: Driver of Motor Cycle
bearing No.KA-36/R-3756
R/o Ambamatha village
Tq. Sindhanur - 584 123
2. Ravikumar
S/o Rudragouda Gonavar
Occ: Owner of Motor Cycle
bearing No.KA-36/R-3756
R/o Behind Mahindra Show Room
Gangavathi Road, Sindhanur
Dist. Raichur - 584 123
3. The Manager
2
Reliance General Insurance Co. Ltd.
3rd Floor, Thimmapur Circle
Main Road, Gulbarga
Dist. Gulbarga - 585 102
... Respondents
(Smt. Preeti Patil Melkundi, Advocate for R3;
Notice to R1 & R2 is dispensed with)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, against the judgment and
award dated 28.01.2011 passed in MVC No.145/2008 on the
file of the Motor Accident Claims Tribunal at Lingasugur,
partly allowing the claim petition and seeking enhancement
of compensation.
This appeal coming on for Orders this day, the Court
delivered the following:
JUDGMENT
This appeal is filed by the injured-claimant in MVC No.145/2008 on the file of the Motor Accident Claims Tribunal at Lingasugur ('the Tribunal' for short) seeking enhancement of the compensation awarded by the Tribunal by the impugned judgment and award dated 28.01.2011.
2. By the impugned judgment, the Tribunal has awarded a total sum of Rs.1,71,000/- along with 3 interest at the rate of 6% p.a. from the date of the petition till the date of realisation. The Tribunal has held that the respondents are jointly and severally liable to pay the amount awarded along with interest. The details of the compensation awarded by the Tribunal are as follows:
Sl. Description Amount
No.
1. Loss of dependency Rs.1,19,700/-
2. Medical expenses Rs. 10,000/-
3. Pain and suffering Rs. 10,000/-
4. Conveyance, food and Rs. 5,000/-
nourishment
5. Loss of income during the laid up Rs. 9,000/-
period
6 Future medical expenses Rs. 10,000/-
7 Attendant charges Rs. 2,500/-
8 Marriage prospects Rs. 5,000/-
Total Rs.1,71,200/-
Rounded off to Rs.1,71,000/-
3. There is no dispute that the injured was riding the motorcycle as a pillion rider on 29.03.2008, and he suffered injuries in the accident due to rash and negligent riding of the motorcycle. There is also no 4 dispute that the injured - claimant suffered multiple fractures of right shaft femur and right patella, and he undergone three surgeries. The Tribunal has assessed the injured-claimant's functional disability at 17.5%, and has computed the loss of future earning taking the income of the injured-claimant at Rs.3,000/- per month without any addition towards future prospects. The Tribunal has awarded a sum of Rs.10,000/- towards pain and suffering, apart from the additional amounts as per the above table.
4. The learned counsel for the injured -
claimant submits that the injured - claimant as on the date of the accident had completed his 10th standard and had under going ITI training. The claimant has spoken about his education and has also produced his Study Certificate. The doctor, who is examined as PW.2, has assessed the permanent physical disability of the injured - claimant at 35 % of the right lower limb. 5 The Tribunal has taken the functional disability of the injured-claimant at 17.5% ignoring the fact that the injured-claimant, who was undergoing ITI course, would be severely impaired because of the injuries affecting his earning. Therefore, the Tribunal could not have taken the functional disability at 17.5%. The injured-claimant was hospitalized for 53 days for treatment. The Tribunal ought to have granted higher sum towards pain and suffering.
5. The learned counsel relies upon the schedule evolved for settlement in the Lok Adalath both insofar as claim for a higher notional income and a higher amount towards pain and suffering. The learned counsel submits that as per the schedule evolved for settlement in the Lok Adalath, when there is no evidence of actual income, the notional income is taken at Rs.4,250/- per month in the cases arising out of accident in the year 2008. Though the injured-claimant has claimed a sum 6 of Rs.4,000/- per month., the Tribunal should have taken Rs.4,250/- per month as the notional income. Similarly, a sum of Rs.25,000/- is paid in a settlement in Lok Adalat towards pain and suffering in the case of several major fractures. But, the Tribunal has awarded only Rs.10,000/- towards pain and suffering. Further, the learned counsel seeks future prospects at the rate of 40% of the notional income placing reliance upon the decisions of the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others1, and Jagdish vs Mohan and Others2.
6. Per contra, the learned counsel for the contesting respondent - Insurance Company (Insurer of the motorcycle) contends that an addition towards future prospects could granted only in cases of death or where there is total disability, and not in other cases. 1 AIR 2017 16 SCC 680 2 (2018) 4 Supreme Court Cases 571 7 The decision in Pranay Sethi's (supra) case cannot be relied upon to claim future prospects in the cases of injuries that has not resulted in total disability. In Jagdish vs Mohan and Others' case (supra), the Hon'ble Supreme Court has granted compensation towards future prospects because there was 100% disability. The present claimant has not suffered 100% disability. As such, the learned counsel for the claimant cannot rely upon the decision in Pranay Sethi's case or in Jagdish vs Mohan and Others' case.
7. The learned counsel for the contesting respondent-Insurance Company submitted that addition towards future prospects is given in the case of death or total disability because there would be complete loss of income. In the case of partial disability there cannot be complete loss of income and there is every potential for increasing the salary income despite injuries. As such, the persons with partial disability 8 cannot be equated with persons of total disability or dependants of a deceased. Further, the learned counsel for the Insurance Company has strenuously contended that the assessment of functional disability at 17.5% is appropriate because disability of the right lower limb is 35%. However, the learned counsel for the Insurance Company does not dispute that Rs.4,250/- per month could be taken as the claimant's income and Rs.25,000/- towards pain and suffering given the schedule evolved for settlement in the Lok Adalath.
8. In the light of the rival submissions, the questions that arise for consideration are:
i) Whether the Injured-Claimant who has suffered partial permanent disability at 17.5% is entitled for addition towards future prospects?
ii) Whether the Tribunal's assessment of the functional disability of the injured-claimant is just? and 9
iii) Whether the claimant is entitled for enhancement of compensation, and if so to what amount?
9. The Hon'ble Supreme Court in Pranay Sethi's case has examined the controversy viz., "where the deceased was self-employed or was a person on fixed salary without provision for annual increment, etc., what should be the addition as regards the future prospects". In answering this controversy, the Hon'ble Supreme Court has also considered the contention on behalf of the Insurance Companies that the future prospects should not be granted in cases where the deceased was without permanent employment. It was contended before the Hon'ble Supreme Court that 'because the range of self-employed persons could include a skilled person to an unskilled labour all of them cannot be put in one category for the purposes of addition towards future prospects. In support of this 10 contention, it was argued that persons without permanent employment like skilled person and unskilled labourer would have uncertain and varying incomes unlike persons without permanent employment and therefore, future prospects cannot be granted.
10. After considering different submissions including the aforesaid and other submissions, the Hon'ble Supreme Court has emphasized that the concept of "just compensation", a statutory requirement, has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. The Hon'ble Supreme Court, as regards the distinction between those in permanent employment and those who are self employed or with a fixed salary/ income, has held as follows:
"Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-11
employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite."
It is after this enunciation that the Hon'ble Supreme Court has declared that there should be addition towards future prospects even in cases where the deceased was either self-employed or with a fixed salary, but with certain difference in the percentage of 12 addition towards future prospects. The emphasis, in the considered opinion of this Court, should be, as accepted by the Hon'ble supreme Court, on the principle of standardization, and standardization through a common portal that would be uniform across categories viz., claims in the case of death or total or partial disablement.
11. Further, the purpose of compensating a person injured in an accident, as in the case of compensating the dependants of the deceased due to an accident, is to put the injured in a financial position that he/ she would have been but for the accident. It is always reiterated that though money cannot substitute life or limb and every effort would fall short of precision, an effort is to be made to compensate. But, subject to the caveat there shall be a balance between awarding a bonanza and a pittance. The reason for grant of compensation remains the same both in the cases of 13 death or personal injury, including cases of total and partial permanent disabilities.
12. Furthermore, the compensation in the cases of injury, whether resulting in total and partial permanent disability, is awarded against the touchstone of standardization evolved judicially. The compensation so determined would be most proximate to the value acceptable as "just compensation". The loss of income of an injured, again whether resulting in total or partial disablement, is decided on the basis of the multiplier method also known as 'Davies method' apropos of the percentage of disability.
13. The Hon'ble Supreme Court in Pranay Sethi's, has held that the Tribunals and Courts will have to be fair and reasonable in determining "just compensation" and temper such determination with principles of equitability on acceptable legal standards. The assessment of compensation, whether in the case of 14 death or injury (whether total or partial) is to achieve the same purpose and on the principle of standardization. The requirement of fairness, reasonableness and the principle of equitability beg the question, can future prospects be refused in the cases of claims for partial disability? In the considered opinion of this Court, the future prospects cannot be refused in the cases of claims for partial disability lest the underlying principle of fairness, reasonableness and equitability is violated. Both in the cases of death and injury, the addition of future prospects is at different percentages based on the age and whether the deceased was in permanent employment or self employed. Insofar as cases of total disability and partial disability, depending on the facts and the circumstances of each case, differential percentages based on such percentages exposited could always be considered. This would enable the Court to grant a "just compensation". 15
14. The Hon'ble Supreme Court in Jagdish vs Mohan and others' case, has awarded future prospects where the injured had suffered 90% permanent physical disability based on the principles enunciated in the Pranay Sethi's case. The decision of the Hon'ble Supreme Court in Jagdish vs Mohan and others is being followed and addition towards future prospects is being allowed by this Court. Therefore, it is concluded, answering the first of the questions, that the Injured- Claimant, who has suffered partial permanent disability, is entitled for addition towards future prospects, but subject to appropriate percentages based on the percentages evolved for the purposes of addition of future prospects in the case of death depending upon the facts and circumstance of the case.
15. In the case on hand, the injured - claimant is an ITI trainee who was aged about 20 years as on the date of the accident. He has suffered multiple fractures 16 of his right lower limb. The doctor has assessed the permanent disability of the lower limb at 35%. The injuries are fracture of right femur, right patella, right tibia and the right fibula. These fractures are treated by open reduction. The jobs that these ITI trainees qualify would involve physical exertion, and any debilitating injury to their limb would adversely impact their future earning capacity. Therefore, it would be reasonable to conclude that the injured - claimant has suffered functional disability, and the Tribunal's assessment of the functional disability at 17.5% would also be appropriate.
16. In view of these circumstances and the discussion, above the injured - claimant would be entitled for accretion towards future prospects. In terms of the decision in Pranay Sethi's case, the future prospects in the category of self-employed upto 40 years, the addition will have to be at the rate of 40% of 17 the injuries. The doctor has assessed the permanent disability of the limb at 35%, functional disability is assessed at 17.5% and the claimant was aged 20 years at the time of the accident. In the light of these circumstances, this Court is of the considered opinion that addition of 30% of the notional income towards future prospects would be reasonable. There is no dispute that the notional income for the purposes of computation of future income could be taken at Rs.4250/- per month and the amount pain and suffering should be Rs.25,000/-. The computation of the compensation with these changes would be thus:-
Loss of Dependency:- Rs.4,250 + Rs.1,250 (Rs.4250x30%) = Rs.5,525 x 17.5% x 12 x 18 = Rs.2,08,845/-
Description Amount awarded Amount awarded by the Tribunal by this Court Loss of dependency Rs.119,700.00 Rs.2,08,845.00 Medical expenses Rs.10,000.00 Rs.10,000.00 Pain and suffering Rs.10,000.00 Rs.25,000.00 Conveyance, food and Rs.5,000.00 Rs.5,000.00 nourishment Loss of income during Rs.9,000.00 Rs.9,000.00 the laid up period 18 Future medical Rs.10,000.00 Rs.10,000.00 expenses Attendant charges Rs.2,500.00 Rs.2,500.00 Marriage prospects Rs.5,000.00 Rs.5,000.00 Total Rs.1,71,200.00 Rs.2,75,345.00 Enhancement Rs.1,04,145 For the aforesaid reasons, it is held that the injured-claimant is entitled for enhanced compensation in a sum of Rs.1,04,145/-. Hence, the following:
ORDER The appeal is allowed in part and the impugned judgment and award dated 28.01.2011 in MVC No.145/2008 on the file of the Motor Accident Claims Tribunal at Lingasugur is modified. The appellant- claimant is entitled for enhanced compensation of Rs.1,04,145/- along with interest @ 6% p.a. from the date of the petition till the date of deposit.
The Insurance Company shall deposit the said sum of Rs.1,04,145/- along with interest @ 6% p.a. within six weeks from the date of receipt of a certified copy of this judgment.19
The office is directed to send the Lower Court Records to the Tribunal.
Sd/-
JUDGE LG/RSP