Karnataka High Court
Narasimhaiah vs H Sikandar on 11 February, 2022
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A. NO.776 OF 2019 (MV-I)
BETWEEN:
NARASIMHAIAH
S/O KARIYAPPA, AGED ABOUT 47 YEARS
R/A ARALIKERE VILLAGE
NAVILA POST, KASABA HOBLI
CHIKKANAYAKANAHALLI TALUK
NOW R/A 1ST CROSS, SIRA GATE
TUMAKURU-572 106. ...APPELLANT
[BY SRI. SHANTHARAJ K., ADVOCATE (VC)]
AND:
1. H.SIKANDAR
S/O IMAM KHAN SAB
AGED ABOUT 62 YEARS
R/A TIMMANAHALLI VILLAGE
C.N.HALLI TALUK
TUMAKURU DISTRICT-572 214.
2. UNITED INDIA INS., CO., LTD.,
BY ITS BRANCH MANAGER
BRANCH OFFICCE, JAYADEVA COMPLEX
B.H.ROAD, TUMAKURU-572 101.
...RESPONDENTS
(BY SRI. C.SHANKAR REDDY, ADVOCATE FOR R2 (VC);
NOTICE TO R1 IS DISPENSED WITH V/O DATED 10.08.2021)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.11.2018, PASSED
IN MVC NO.962/2017, ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON
05.01.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Challenging impugned judgment and award dated 02.11.2018 passed in MVC No.962/2017 by I Addl. District Judge and MACT, Tumakuru (hereinafter referred to as 'tribunal') appellant-claimant preferred this appeal seeking enhancement of compensation.
2. Brief facts as stated are that on 23.04.2017 at 04.45 PM when claimant was riding his motorcycle bearing registration no.KA-05-BV-3262, a bus bearing registration no.KA-07-7470 driven by its driver in rash and negligent manner dashed against motorcycle near Mathigatta gate leading to accident. Claimant sustained grievous injuries and was shifted to Government hospital C.N.Halli. He later took inpatient treatment at Hemavathi orthopedic and trauma Centre Tumakuru. Despite same, he 3 sustained physical disability and consequent reduction in earning capacity. Claiming compensation. He filed claim petition against owner and insurer of offending bus u/s 166 of Motor Vehicles Act.
3. On service of notice, respondent no.1 - owner did not file objections. Respondent no. 2 - insurer filed objections denying claim petition averments. It also denied that accident occurred due to negligence of bus driver. Apart from contending that accident occurred due to negligence of claimant himself, it also contended that claim was exorbitant; age, occupation, income and disability sustained were also denied.
4. Based on pleadings, followings issues were framed:
1. Whether the petitioner proves that he sustained injuries in a road accident on 23.04.2017 at about 1.45 p.m. due to the actionable negligence of the driver of D.H.K. bus bearing registration No.KA.07.7470 as alleged?
2. Whether petitioner is entitled for compensation?
3. What order?
5. Thereafter claimant examined himself as PW.1. He also examined Dr. Prasad as PW2. Exhibits P.1 to P.13 were marked. On 4 behalf of respondents one witness was examined as RW.1 and Exhibits R.1 and R.2 were marked. On consideration, tribunal answered issue no.1 in affirmative, issue no.2 partly in affirmative and issue no.3 by awarding total compensation of Rs.12,31,904/- with 6% interest and holding respondent no.2 - insurer liable to pay same. Not satisfied with quantum of compensation, claimant is in appeal.
6. Sri K. Shantharaj, learned counsel for claimant/appellant submitted that claimant was 45 years of age, working as mason and earning Rs.20,000/- per month. However, due to disability sustained in the accident, his left leg below knee was amputated, due to which he was unable to continue his avocation and lost 100% earning capacity. However, tribunal considered meager monthly income at Rs.8,000/- and disability at 70% and without adding future prospects awarded inadequate compensation. It was further submitted that even compensation awarded towards 'pain and suffering', 'amenities', and 'incidental charges' was in adequate. Learned counsel further submitted that award towards income during laid up period also required enhancement. It was submitted 5 that though PW.2 deposed that prosthetic leg would cost Rs.1.50- 2.00 lakhs, tribunal awarded only Rs.50,000/-, which requires to be enhanced.
7. In support of his submission, learned counsel relied upon decisions of Hon'ble Supreme Court in Mangla Ram Vs. Oriental Insurance Co., Ltd., reported in (2018) 5 SCC 656, Kajal Vs. Jagdish Chand reported in (2020) 4 SCC 413; Pappu Deo Yadav Vs. Naresh Kumar and Others reported in 2020 SCC OnLine SC 752 and Erudhaya Priya Vs. State Express Transport Corporation Ltd., reported in 2020 SCC OnLine SC
601.
8. On the other hand, Sri. C. Shankara Reddy, learned counsel for respondent. No.2 - insurer supported award and opposed enhancement. It was specifically submitted that though claimant, had stated that he was working as mason and earning Rs.20,000/- per month, claimant did not substantiate same by any evidence. Under the circumstances, tribunal was justified in assessing his income notionally. It was further submitted that claimant had sustained amputation of left leg below knee. By fixing 6 prosthetic leg, claimant would be able to earn livelihood from alternate avocation. However, without adequate justification tribunal had considered excessive disability of 70%. Learned counsel submitted that even if claimant was entitled for enhancement of compensation, in any other head, same would be offset by excess assessment of physical disability.
9. From above submission, occurrence of accident due to rash and negligent driving of offending bus by its driver leading to accident in which claimant sustained grievous injuries and permanent physical disability are not in dispute. Tribunal held that accident occurred due to sole negligence of bus driver, had assessed compensation payable by insurer. Insurer had not filed appeal challenging same. Therefore, liability of insurer to pay compensation is also not in dispute. Claimant is in appeal seeking for enhancement of compensation. Thus, point that arises for consideration is:
"Whether claimant is entitled for enhancement of compensation as sought for?
10. In order to substantiate his claim regarding 'loss of earning capacity', claimant produced wound certificate, discharge 7 card, prescription, medical bills, case sheet, OPD slip and X-rays marked as Exs.P.4, P.6 to P.8, P.11 to P.13 respectively. Claimant also examined Dr. Prasad, an Orthopedic surgeon as PW.2. From Exs.P.4, P.6 and P.11 and other medical records, it is seen that claimant sustained following injuries:
1. Left leg is crushed, foot is avulsed.
2. Tenderness present scalp
3. Tenders present left side of pelvis.
During treatment, there was amputation of his left leg below knee. PW.2 - Dr. Prasad, deposed that claimant was admitted in his hospital for treatment on 23.04.2017 and discharged on 03.05.2017. After narrating nature of treatment given, PW.2 also stated about amputation of left leg. After clinical examination, PW.2 assessed physical disability at 70% to left lower limb. However, PW.2 has not assessed whole body disability or extent of loss of earning capacity. Though, amputation of lower limb below knee would seriously jeopardize earning capacity, the fact that claimant would be able to earn income from alternate avocation. PW.2 assessed physical disability at 70% to left lower limb. Tribunal 8 considered same extent as functional disability. Though, learned counsel for claimant sought for assessment of disability at 100%, this Court is of the considered opinion that assessment by tribunal is adequate and does not call for interference.
11. Further police investigation records as well as medical records corroborate claimant's occupation as mason. Though, it is claimed that he was earning Rs.20,000/- per month, same is not substantiated by any evidence. In the absence of evidence, tribunal would be justified in assessing it on notional basis. However, accident is of the year 2017. Notional income for said period as adopted by Karnataka State Legal Services Committee for settlement of cases before Lok-Adalat is Rs.11,000/-. Therefore, tribunal was not justified in taking it at Rs.8,000/- per month. It has to be considered at Rs.11,000/-.
12. Next aspect that would require consideration is about addition of future prospects even in injury claim. The Hon'ble Supreme Court in Mangla Ram's case (supra) added 'future prospects' to income of claimant, who had sustained permanent physical disability of 40%. In Kajal's case (supra), it added 'future 9 prospects', where claimant sustained 100% permanent physical disability. In Erudhaya Priya's case (supra), Hon'ble Supreme Court added 'future prospects' to income of claimant, who had sustained permanent physical disability of 31.1%. In Pappu Deo Yadav's case (supra), three Judges Bench of Hon'ble Supreme Court added 'future prospects' in the case of claimant sustaining 65% permanent physical disability.
13. Following decision in Pappu Deo Yadav's case (supra), Division Bench of this Court in S.N. Narasimha Murthy Vs. Sriram General Insurance Company Ltd., in M.F.A.Crob. No.8/2015 disposed off on 19.07.2021 also added 'future prospects' in personal injury claim, where physical disability was 70%. Likewise, in Punyashri H. Vs. Dr. Jayamma and another reported in 2020 SCC OnLine Kar. 1967, 'future prospects' was added in case of physical disability of 80%. In Erudhaya Priya's case (supra), 'future prospects' was added even where physical disability was as low as 31.1%. In this case, tribunal assessed physical disability of claimant at 70%. Therefore, this would be a fit case to add 'future prospects'.
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14. Admittedly, claimant was aged about 45 years. As per constitution Bench decision of Hon'ble Supreme Court in National Insurance Company Ltd., Vs. Pranay Sethi & Ors. reported in AIR 2017 SC 5157, proper multiplier applicable would be '14' and addition of 'future prospects' would be at 40%. Thus, 'future loss of earning' would be :
Rs.11,000/- + 40% X 70% X 12 X 14 = Rs.18,11,040/-.
15. Tribunal awarded Rs.80,000/- towards 'pain and suffering'. As there is amputation of left lower limb below knee, compensation. Awarded would be inadequate. It would be appropriate to award Rs.1,00,000/- towards same. Tribunal awarded Rs.62,104/- towards 'medical expenses' against bills produced. As there is complete reimbursement, there is no scope for enhancement.
Tribunal has awarded Rs.15,000/- towards food and nourishment, Rs.15,000/- towards 'transportation charges' and Rs.5,000/- towards 'attendant charges'. Claimant took inpatient treatment for 10 days. Considering duration of inpatient treatment, 11 same appears to be just and proper and do not call for enhancement.
Tribunal awarded Rs.40,000/- towards 'loss of amenities'. Claimant sustained amputation of left lower limb below knee at the age of 45 years. Award would be grossly inadequate. Considering extent of disability assessed, it would be just and proper to award Rs.1,00,000/- towards 'loss of amenities'.
Tribunal awarded Rs.24,000/- towards 'loss of income' taking duration of laid up period as three months. Since, monthly income is reassessed at Rs.11,000/-, claimant would be entitled to Rs.33,000/-.
Tribunal awarded Rs.50,000/- towards 'artificial limb'. Though PW.2 deposed about cost of artificial limb at Rs.1.50 - 2.00 lakhs. Normally, prosthetic leg would cost Rs.50,000/-. However, same would require periodic maintenance or replacement. Considering age of claimant, it would be appropriate to award Rs.1,00,000/- towards same. Thus, claimant would be entitled to total compensation of Rs.22,41,144/-, which is as under: 12
Pain and suffering Rs. 1,00,000/-
Medical expenses Rs. 62,104/-
Food and nourishment Rs. 33,000/-
Transportation charge Rs. 15,000/-
Loss of amenities in life Rs. 15,000/-
Attendant charge Rs. 5,000/-
Loss of future income Rs.18,11,040/-
Loss of income during laid Rs. 33,000/-
up period
Artificial limb Rs. 1,00,000/-
Total Rs.22,41,144/-
16. Point for consideration is answered partly in affirmative. In the result, I pass following:
ORDER
i) Appeal is allowed in part with cost.
ii) Total compensation awarded by Tribunal is modified and appellant - claimant is entitled to Rs.22,41,144/- [Rupees Twenty Two Lakhs Forty One Thousand One Hundred Forty Four only] as against Rs.12,31,904/-. Enhanced compensation of Rs.10,09,240/- shall carry interest at the rate of 6% per annum from date of claim petition till its realization.13
iii) Respondent no.2 - insurer shall deposit same within six weeks from date of receipt of certified copy of this order.
iv) Direction issued by tribunal regarding proportion of deposit and release would also apply to enhanced compensation.
v) Draw modified award accordingly and
transmit original records to Tribunal
forthwith.
Sd/-
JUDGE
Psg*