Karnataka High Court
A Naseer Miya S/O Abdul Razak vs Vali Ahmed And Anr on 17 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2023:KHC-K:8653
MFA No. 201017 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO. 201017 OF 2019 (MV-I)
BETWEEN:
A NASEER MIYA
S/O ABDUL RAZAK,
AGED: 38 YEARS, OCC: EX-MASON,
R/O H NO.5/3054 ROZA,
TQ. AND DIST. KALABURAGI.
...APPELLANT
(BY SRI. B. ALI MOHAMMAD, ADVOCATE)
AND:
Digitally signed
by 1. VALI AHMED
LUCYGRACE
S/O JAHANGEER SAB,
Location: HIGH
COURT OF AGED 47 YEARS,
KARNATAKA OCC: OWNER OF HONDA
MOTOR CYCLE,
BEARING NO.KA-32-EN-3156,
R/O E/4-601-65/A/13,
BASAVESHWAR COLONY,
NEAR PASHA BIBI DARGA BANDENAWAZ,
KALABURAGI-585103..
2. THE DIVISIONAL MANAGER
ORIENTAL INSURANCE.,
COMPANY LIMITED,
N G COMPLEX OPP VIDHANA SOUDHA,
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MFA No. 201017 of 2019
KALABURAGI-585102.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R2;
VIDE ORDER DATED 22.08.2022 NOTICE TO R1
IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO, IMPUGNED JUDGMENT AND
AWARD DATED 01.03.2019 CAUSED IN MVC NO. 984/2017 ON
THE FILE OF THE COURT PRINCIPAL SENIOR CIVIL JUDGE AND
MACT, KALABURAGI MAY BE MODIFIED BY GRANTING
COMPENSATION AS CLAIMED IN THE CLAIM PETITION AND
THIS MISCELLANEOUS FIRST APPEAL MAY BE ALLOWED AS
PRAYED WITH COST.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Injured claimant is before this Court seeking enhancement of compensation which was awarded in a sum of Rs.5,60,700/- in MVC No.984/2017 on the file of Principal Senior Civil Judge and CJM AND MACT, Kalaburagi in its order dated 01.03.2019.
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2. Accident dated 07.09.2017 that occurred near University Complex, Dr.Ambedkar Bhavan, Kalaburagi involving a motorcycle bearing Registration No.KA-32/EP-
4809 and another motorcycle bearing Registration No.KA-
32/EN-3156 resulting in grievous injuries to the appellant/petitioner is not in dispute.
3. The tribunal on appreciation of the evidence has come to the conclusion that accident in question had occurred on account of rash and negligent driving of the rider of the motorcycle bearing Registration No.KA-32/EN-
3156. Taking into consideration the evidence, more particularly, of doctor -Dr.Satosh J Mangshetty, who is a treating doctor examined as a PW.2 who had opined that disability of injured at 30%, the tribunal has assessed the same at 15%. The tribunal has assessed monthly income of the appellant at Rs.8,000/- p.m.
4. Learned counsel for the appellant taking this Court through the medical records, more particularly wound certificate as per Ex.P6 and disability certificate as -4- NC: 2023:KHC-K:8653 MFA No. 201017 of 2019 per Ex.P14 submits that the nature of injuries have rendered the appellant completely disable who was otherwise eking out his livelihood by doing mason work.
He further submits that the accident is of the year 2017 the tribunal ought to have at least taken notional income of Rs.10,250/- p.m. as assessed by the Karnataka State Legal Services Authority. He submits that the award of compensation under the other heads is on the lower side.
Hence, seeks for enhancement of compensation by allowing the appeal.
5. Smt. Preethi Patil Melkundi, learned counsel for the respondent /Insurance Company justifying the order passed by the tribunal submits that no evidence has been produced with regard to reduction of income of the claimant. As such the assessment of disability at 15% is just and proper. She further submits that grant of compensation under other heads is also just and reasonable warranting no interference. Hence, seeks for dismissal of the appeal.
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6. Heard the learned counsel for the parties and perused the records.
7. That Ex.P6 and Ex.P9 are the documents evidencing wound and injuries sustained by the appellant also reveal that appellant was admitted to the hospital with a history of road traffic accident had sustained injuries and was treated as under;
" Diagnosis: Left temporal bleed + SDH Procedure: Left decompressive Hernicraniectomy and evacuation of left temporal contusion done on 08-09-2017 course in the Hospital: Patience presented with Alleged H/O RTA near university Police station on 07-09-2017 and sustained lacerated wound over the supraoccipital area. Patient was intubated on 08-09-2017 GCS was E2M5V3 with right upper and lower paucity of movements. Due to left temporal bleed + SDH patient underwent above procedure on 08-09-2017. Post operatively patient had right hemiparisis. Patient was extubated on 20-09-2017. Central line removed on 21-09-2017. Relevant investigations were done. Neurosurgeon, Neurophysician, Physiotherapist opinion taken and treatment was given to patient is being discharged with following advice."
8. Ex.P14 is the Disability Certificate issued by the treating doctor examined as PW.2, which reads as under;
-6-NC: 2023:KHC-K:8653 MFA No. 201017 of 2019 DISABILITY CERTIFICATE " This is to state that Mr. Abdul Naseer aged 39 years was admitted on 08/09/2017 in United Hospital, Kalaburagi with alleged history of RTA on 07/9/2017. He was in semiconscious condition with bleeding in the brain (left temporal bleed +SDH). He underwent left decompressive hemicraniectomy and contusion evacuation surgery on 08/09/2017. Gradually his condition improved and he was discharged on 23/09/2017. Currently he is conscious, oriented but has intermittent episodes of seizures (fits) inspite of medicatious, has memory speech, absract thinking, planning disturbance.
On 29/11/ 2018 after performing clinical and radiological examination and based on the Disability Guidelines issued by the office of the Chief commissioner for persons with Disabilites I am of the opinion that the neurological Disabilities amounts to 30% ( Thirty percent) ".
9. The disability certificate has been issued on 29.11.2018 while the accident in question has occurred on 07.09.2017. In other words, the disability certificate has been issued after assessing the condition of appellant after a period of one year from the date of accident. The treating doctor has assessed disability at 30%. The nature of the disability is a neurological disability. The doctor who has been examined as PW.2 has stood the test of cross-
examination and nothing has been elicited to discredit the -7- NC: 2023:KHC-K:8653 MFA No. 201017 of 2019 disability assessed by him. In that view of the matter assessment of disability by the tribunal at 15% in the absence of any contrary material cannot be sustained.
10. The Apex Court in the case of PAPPU DEO YADAV VS. NARESH KUMAR AND OTHERS reported in (2022) 13 SCC 790, at paragraphs 11 and 23 has held as under;
"11. Yet later and more recently in an accident case, which tragically left in its wake a young girl in a life- long state of paraplegia, this court, in Kajal v. Jagdish Chand, reiterated that in addition to loss of earnings, compensation for future prospects too could be factored in, and observed that:
"14. In Concord of India Insurance Co. Ltd. v. Nirmala Devi [Concord of India Insurance Co. Ltd. v. Nirmala Devi, (1979) 4 SCC 365 : 1979 SCC (Cri) 996 : (SCC p. 366, para 2)
2. ... the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales."
15. In R.D. Hattangadi v. Pest Control (India) (P) Ltd., dealing with the different heads of compensation in injury cases this Court held thus : (SCC p. 556, para 9)
9. Broadly speaking while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary -8- NC: 2023:KHC-K:8653 MFA No. 201017 of 2019 damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include : (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
16. In Raj Kumar v. Ajay Kumar , this Court laid down the heads under which compensation is to be awarded for personal injuries : (SCC p. 348, para 6) "6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.-9-
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(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and
(iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."
17. In K. Suresh v. New India Assurance Co. Ltd. [K. Suresh v. New India Assurance Co. Ltd., this Court held as follows: (SCC p. 276, para 2) "2. ... There cannot be actual compensation for anguish of the heart or for mental tribulations. The quint essentiality lies in the pragmatic computation of the loss sustained which has to
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NC: 2023:KHC-K:8653 MFA No. 201017 of 2019 be in the realm of realistic approximation. Therefore, Section 168 of the Motor Vehicles Act, 1988 (for brevity "the Act") stipulates that there should be grant of "just compensation". Thus, it becomes a challenge for a court of law to determine "just compensation" which is neither a bonanza nor a windfall, and simultaneously, should not be a pittance."
******* ******** ********* Loss of earnings
20. Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs 15,000 p.a. can be taken into consideration. We do not think this is a proper way of assessing the future loss of income. This young girl after studying could have worked and would have earned much more than Rs. 15,000 p.a. Each case has to be decided on its own evidence but taking notional income to be Rs. 15,000 p.a. is not at all justified. The appellant has placed before us material to show that the minimum wages payable to a skilled workman is Rs 4,846/- per month. In our opinion, this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs 6784.40 per month i.e. 81,412.80 p.a. Applying the multiplier of 18, it works out to Rs 14,65,430.40, which is rounded off to Rs 14,66,000."
23. In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of
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NC: 2023:KHC-K:8653 MFA No. 201017 of 2019 the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and 29 First Schedule, Finance Act, 2011".
11. Considering the nature of the injuries sustained by the appellant and also the medical evidence in the nature of deposition of the treating doctor, this Court is of the considered view that disability be maintained as 30% instead of 15% as assessed by the tribunal.
12. Though it is claimed that the appellant was earning Rs.12,000/- p.m. tribunal has taken notional income at Rs.8,000/- p.m. This Court in the absence of any documentary evidence with regard to the income, takes into consideration the chart prepared by the Karnataka State Legal Services Authority in terms of which notional income of the victim of road traffic accident of the year 2017 is assessed at Rs.10,250/- p.m., same is taken in this case as well. Considering the age of the claimant which is 36 years appropriate multiplier applied is '15'.
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13. In view of the judgment of the Apex Court in the case of Erudaya Priya vs. State Express Transport Corporation Limited reported in AIR 2020 Supreme Court 4284, has held that even in injury cases, claimant would be entitled for addition of future prospects. Since disability sustained by claimant is substantial and considering age of claimant as 36 years from medical records, it would be appropriate to add 40% towards 'future prospects'.
14. Calculated as above claimant would be entitled compensation of Rs.7,74,900/- ([Rs.10,250+ 40%]14,350 X 15X 12X 30%) towards 'loss of future income'. The tribunal has awarded Rs.30,000/- towards 'pain and suffering' the same is enhanced to Rs.50,000/- by adding Rs.20,000/-. The Tribunal has awarded Rs.8,000/- towards 'attendants charges, food and conveyance', the same is enhanced to Rs.30,000/-
considering the nature of the injuries and the continuous disability suffered by the claimant. Medical expenses
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NC: 2023:KHC-K:8653 MFA No. 201017 of 2019 Rs.2,75,700/- is maintained as it is. The tribunal has awarded Rs.16,000/- towards 'loss of income during the treatment', same is enhanced to Rs.30,750/-. The tribunal has awarded Rs.15,000/- towards 'loss amenities and nutrition food, same is enhanced to Rs.75,000/-.
15. Thus, in total the appellant/claimant is entitled for compensation of Rs.12,36,350/- instead of Rs.5,60,700/- as awarded by the Tribunal, which is as under:
Sl. By By
Heads
No. Tribunal this Court
1 Towards pain and suffering Rs. 30,000/- Rs. 50,000/-
2 Towards Medical Expenses Rs. 2,75,700/- Rs. 2,75,700/-
3 Towards attendant charges, Rs. 15,000/- Rs. 30,000/-
food and conveyance
4 Toward loss of amenities Rs. 10,000/- Rs. 75,000/-
and nutrition food
5 Loss of future income Rs. 2,16,000/- Rs. 7,74,900/-
6 Loss of income during Rs. 16,000/- Rs. 30,750/-
period of treatment
Total Rs.5,60,700/- Rs.12,36,350/-
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MFA No. 201017 of 2019
16. For the foregoing reasons, following:
ORDER
a) The appeal is partly allowed.
b) The appellant/claimant is entitled for a total compensation of Rs.12,36,350/- instead of Rs.5,60,700/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of claim petition till realization.
c) Respondent No.2 shall pay the aforesaid compensation amount within an outer limit of six weeks from the date of receipt of certified copy of this judgment.
d) The award of the Tribunal is modified accordingly.
Sd/-
JUDGE RU