Karnataka High Court
Kumar. Prakash S/O Nagappa Pirangi vs Shri. Kenchappa S/O Yallappa ... on 15 November, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-D:16716-DB
MFA No. 103709 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
MISCELLANEOUS FIRST APPEAL NO. 103709 OF 2022 (MV-I)
BETWEEN
KUMAR. PRAKASH S/O. NAGAPPA PIRANGI,
AGE. 17 YEARS,
OCC. STUDENT & COOLIE, NOW NIL,
SINCE MINOR R/BY NATURAL FATHER
SHRI. NAGAPPA S/O. SHIVAPPA PIRANGI,
AGE. 52 YEARS, OCC. LABOUR,
R/O.NARGUND, NOW RESIDING
AT: KILLA TORGAL, TQ. RAMDURG,
DIST. BELAGAVI-591114.
...APPELLANT
Digitally signed (BY SRI. HARISH S. MAIGUR, ADVOCATE)
by JAGADISH T R
Location: High
Court of AND
Karnataka,
Dharwad Bench
1. SHRI. KENCHAPPA
S/O. YALLAPPA JALAPPANAVAR,
AGE. MAJOR, OCC. BUSINESS,
R/O. GHATAKANUR, TQ. RAMDURG,
DIST. BELAGAVI-591123.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO.LTD.,
HAVING ITS DIVISIONAL OFFICE
AT: 2ND FLOOR, PRABHU BUILDING,
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NC: 2024:KHC-D:16716-DB
MFA No. 103709 of 2022
1732, RAMDEV GALLI,
BELAGAVI-590001.
3. THE MANAGER,
HDFC ERGO GENERAL INSURANCE CO.LTD.,
HAVING ITS DIVISIONAL OFFICER
AT: 1ST FLOOR, VIRUPAKSHAKRUPA,
OPPOSITE TO KIMS MAIN GATE,
P.B.ROAD, VIDYANAGAR
HUBBALLI-580021, DIST. DHARWAD.
4. SHRI KASHAPPA SHIVAPPA KITTALI,
AGE. 50 YEARS,
OCC. AGRICULTURE,
R/O. HOSAKORI, TQ. RAMDURG,
DIST. BELAGAVI-591123.
...RESPONDENTS
(BY SRI. RAJASHEKHAR S. ARANI, ADV. FOR R2;
SRI. IRANAGOUDA K. KABBUR, ADV. FOR R3;
NOTICE TO R1 & R4 SERVED)
THIS MFA IS FILED UNDER SECTION 173 (1) OF MOTOR
VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION BY
MODIFYING THE JUDGMENT AND AWARD PASSED IN M.V.C
NO.720/2020, ON THE FILE OF IV ADDL. DISTRICT JUDGE AND
MOTOR ACCIDENT CLAIMS TRIBUNAL-V, AT BELAGAVI, DATED
21.12.2021 BY ALLOWING THIS APPEAL WITH COSTS, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.11.2024, COMING ON FOR PRONOUNCEMENT,
THIS DAY, VENKATESH NAIK T J., DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
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NC: 2024:KHC-D:16716-DB
MFA No. 103709 of 2022
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE VENKATESH NAIK T) The appellant-claimant has filed this appeal challenging the judgment and award dated 21.12.2021 passed by the learned IV Addl. District Judge and Member, Addl. MACT-V, Belagavi, in M.V.C. No.720/2020 whereunder, the Tribunal has awarded compensation of Rs.23,72,000/- with interest at 6% per annum and prayed for enhancement of the same.
2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.
3. Brief facts of the claimant's case before the Tribunal are as under:
The minor claimant, represented by his father being natural guardian, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, before the Tribunal seeking compensation on account of injuries sustained by the minor claimant (aged 15 years) in a road traffic accident that took place on 14.12.2019, when the minor claimant along with his sister was proceeding by walk on the side of the road, at about 16.30 hours, when they reached Killa Torgal Village, on Katkol- -4-
NC: 2024:KHC-D:16716-DB MFA No. 103709 of 2022 Ramdurg road, at that time, one Tractor bearing registration No.KA-24/TB-0655 attached with two trailers bearing registration Nos.KA-24/T-8204 & KA-28/T-1825 loaded with sugarcane, came from Ramdurg towards Katkol, driven by its driver in a high speed, rash and negligent manner and one of the Trailers was dashed to the claimant and ran over on his legs. Due to the impact, the minor claimant sustained grievous injuries. Immediately, he was shifted to Ganga Hospital, Gokak wherein, he was admitted as an inpatient from 14.12.2019 to 10.02.2020 and underwent various surgical operations. Due to the accidental injuries, he suffered permanent disability and amputation to left leg above knee.
4. After service of notice, respondents appeared through their counsel and filed objections resisting the claim and denied all averments made in the claim petition.
5. The Tribunal considering the evidence on record at Exs.P1 to P12, oral evidence of PW1 & PW2, RW1 and Ex.R1 and R2, has awarded total compensation of Rs.23,72,000/- with interest at 6% per annum from the date of petition till its realization, and saddled liability on respondent No.2/Insurer to -5- NC: 2024:KHC-D:16716-DB MFA No. 103709 of 2022 an extent of 33% and 67% on respondent No.3/Insurer to pay compensation. Being aggrieved by the impugned judgment and award, the claimant is before this Court.
6. Learned counsel for the appellant/claimant has contended that the appellant/claimant spent more than Rs.5,00,000/- towards medical expenses and his left leg above knee was amputed, but the Tribunal granted a meager amount of Rs.2,47,000/- under the said head. The appellant was hale and healthy and clever, aged about 15 years at the time of the accident, but due to the accidental injuries, the appellant lost his future earning capacity. The father of the claimant has to spend more than Rs.500/- per day towards future attendant, but no compensation is awarded under the said head.
7. The counsel further contended that the claimant suffered 100% permanent physical disability, however the Tribunal considered 70% disability to the whole body, which is contrary to evidence of PW2-doctor. The Tribunal has not awarded 'loss of future earning' by taking the income and adding future prospects. The compensation awarded under the heads of pain and suffering, loss of amenities, discomforts, loss -6- NC: 2024:KHC-D:16716-DB MFA No. 103709 of 2022 of earning during laid-up period, future medical expenses, travelling, attendant, nourishment, marriage prospects is on the lower side. Thus, he prays for allowing the appeal.
8. Per contra, learned counsel for the respondents- Insurance Companies supporting the impugned judgment and award contended that the Tribunal has considered permanent physical disability at 70% to the whole body, which is fair and reasonable one. Further the Tribunal considered the nature of injuries and other material available on record and has rightly granted compensation on other heads, which is just and reasonable one and does not call for interference at the hands of this Court. Hence, prayed to dismiss the appeal.
9. Heard the learned counsel for the parties and perused the impugned judgment and award, the following point that would arise for our consideration in this appeal:
"Whether the quantum of compensation awarded by the Tribunal is just and reasonable or does it call for enhancement?"
10. There is no dispute with regard to the occurrence of the accident on 14.12.2019, resulting in injuries to the -7- NC: 2024:KHC-D:16716-DB MFA No. 103709 of 2022 claimant. The very fact that when the claimant was proceeding by walk, the driver of Tractor-Trailers came from hind side in a rash and negligent manner and dashed to the minor claimant and hence, the claimant sustained crush injuries to his left leg, thigh and all over the body.
11. As per the oral evidence of PW1 and on perusal of Ex.P.1-FIR, Ex.P2-complaint & Ex.P.3-Spot Panchanama, the driver of Tractor-Trailers caused the accident. As per the evidence of PW2-Dr. G.S. Umrani, the claimant sustained amputation of his left leg above knee and hence, the doctor has assessed permanent physical disability at 100%, as evident from Ex.P5-Wound Certificate and Ex.P7-Disability Certificate. However, the Tribunal without considering the oral evidence of PW2-Doctor and Ex.P7-Disability Certificate, considered permanent physical disability at 70%, which in our view is on the lower side. As per Schedule-I of Employees Compensation Act, 1923, for the permanent physical disability of left leg above knee, 90% disability has to be considered. In view of opinion of the doctor and Schedule-I of the aforesaid Act, it is just and necessary to re-assess permanent physical disability of -8- NC: 2024:KHC-D:16716-DB MFA No. 103709 of 2022 the claimant from 70% to 90%, then it would meet the ends of justice.
12. The claimant was a minor aged about 15 years at the time of the accident and has suffered permanent physical disability i.e., fracture of right shaft femur and amputation of left leg above knee. Further, the Tribunal considering the ratio laid-down in the case of Master Mallikarjun Vs. National Insurance Company Limited1, granted compensation of Rs.4,00,000/- under the head of 'permanent physical disability'. However, the Tribunal fell in error in not awarding compensation under the head of 'loss of future income due to disability', which the claimant would be entitled to, as his left leg was amputed above knee, due to accidental injuries. Therefore, in view of the ratio laid down by the Hon'ble Apex Court in the cases of Kajal vs. Jagdish Chand & Others2, Master Mallikarjun supra & Master Ayush Vs. Branch Manager, Reliance General Insurance Co. Ltd. & Another3, Rs.13,000/- per month is taken into consideration for reckoning the loss of future income due to disability. 1 (2014) 14 SCC 396 2 2020 ACJ 1042 3 (2022) Acci.C.R. 473 (SC) -9- NC: 2024:KHC-D:16716-DB MFA No. 103709 of 2022 Hence, we consider Rs.13,000/- per month as notional income of the claimant to award 'loss of future income'.
13. The Tribunal has not considered percentage of future prospects to the claimant in respect of his assessed income. As per decision of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Others4, if the age of the claimant/injured is below 40 years, 40% of the assessed income is to be added towards future prospects. In the instant case, as on the date of the accident, the injured was 15 years, hence, 40% of the assessed income is to be added towards future prospects. There is no dispute with regard to applicability of multiplier of '18' to his age group. Thus, the claimant is entitled to 'loss of future income due to disability' instead of 'permanent physical disability' as under:
Rs.13,000+40%=Rs.18,200 x 12=Rs.2,18,400 Rs.2,18,400 x 90/100 x 18=Rs.35,38,080/-
14. The Tribunal taking note of nature of injuries suffered by the clamant and also duration of treatment taken by him in the hospital, awarded just and reasonable 4 2017 (16) SCC 680
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NC: 2024:KHC-D:16716-DB MFA No. 103709 of 2022 compensation under the other heads, which is not disturbed and requires no interference at the hands of this Court. Thus, the claimant is entitled for the following modified compensation:
HEADS Rs.
Pain and sufferings 5,00,000/-
Loss of future income on account of 35,38,080/-
permanent disability
Cost of artificial limb & future medical 3,00,000/- expenses to fix artificial limb Loss of amenities & comfort 5,00,000/-
Loss of expectation of life 1,00,000/-
Loss of marital prospects 3,00,000/-
Medical expenses 2,47,000/-
Discomfort, inconvenience & loss of 20,000/-
earnings to the parents during the
period of hospitalization
Incidental expenses 5,000/-
Total 55,10,080/-
15. Thus, the appellant/claimant is entitled to total compensation of Rs.55,10,080/- as against Rs.23,72,000/- awarded by the Tribunal.
16. Accordingly, we pass the following:
ORDER
a) The appeal filed by the claimant is allowed in part.
b) The impugned judgment and award of the Tribunal is modified to an extent that the claimant is entitled to total compensation of
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NC: 2024:KHC-D:16716-DB MFA No. 103709 of 2022 Rs.55,10,080/- as against Rs.23,72,000/- awarded by the Tribunal.
c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till realization.
d) Both respondents-Insurance Companies shall deposit the enhanced compensation amount in respect of their apportionment with accrued interest before the Tribunal within six weeks from the date of receipt of certified copy of this judgment.
e) Apportionment, disbursement and deposit shall be made in terms of the award of the Tribunal.
f) Draw modified award accordingly.
g) No order as to costs.
Sd/-
(H.T.NARENDRA PRASAD) JUDGE Sd/-
(VENKATESH NAIK T) JUDGE JTR List No.: 1 Sl No.: 1