Karnataka High Court
The Manager National Insurance ... vs Basayya Rachayya Nadegol & Anr on 6 July, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
ON THE 06TH DAY OF JULY 2018
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL NO.31546/2012 (MV)
BETWEEN:
The Manager,
National Insurance Co., Ltd.,
Near Siddeshwar Temple, Bijapur.
Represented by
The Assistant Manager,
For Divisional Manager,
National Insurance Co. Ltd.
Gulbarga.
...Appellant
(By Sri. Sanjay. M. Joshi, Advocate)
AND:
1. Basayya Rachayya Nadegol,
Age: 55 years,
Occ: Class 1 Contractor & Business,
R/o Shastri Nagar, Athani Road,
Bijapur-586 103.
2. Bapugouda S/o Bhimanagouda Patil,
Age: 50 years, Occ: Agriculture,
R/o No.A/6, Shantiniketan Colony,
Bagalkot Road, Bijapur-58611.
...Respondents
(By Sri. Bheemaraya. M.N. for Smt. Ratna N. Shivayogimath,
Advocate for R1;
Appeal against R2 dismissed vide order dated 01.07.2013)
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This Miscellaneous First Appeal is filed under Section
173(1) of Motor Vehicles Act, praying to call for the records
allow this appeal and set aside the impugned judgment and
award dated 28.04.2012 in MVC No.1878/2010, passed by the
Motor Accident Claims Tribunal XII at Bijapur awarding
compensation of Rs.44,90,000/- with interest at 6% per annum
of the date of petition.
This appeal coming on for final hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The Insurance Company has preferred this appeal challenging the award dated 28.04.2012 in MVC No.187/2010 on the file of MACT-XII, Bijapur. The respondent No.1 in this appeal is the claimant.
2. On 22.07.2010 at 4-30 p.m, the claimant was returning to Bijapur from Belgaum. He was travelling with his friend in an Innova Car bearing Temporary No.KA- 22/TS-6073. As the Car came near Malakanmaradi bridge on Belgaum-Bagalkot Highway, a Maruti Car bearing 3 temporary registration No.KA-25/TC-08 coming from opposite direction dashed against Innova car as its driver lost control over the car due to his negligent and rash driving. As a result of this accident the claimant sustained grievous injuries namely fracture of left shoulder, fracture of left humorous bone, fracture of head and such other injuries. He was treated at KLE Hospital, Belgaum initially and then shifted to Miraj for treatment at Dr. Kulkarni's Hospital.
3. He made a claim petition. He stated that he was a Class-I contractor and undertaking Government and Private works. Because of the injuries sustained by him in the accident, he could not attend to his contract work as he used to before the accident took place; and there was reduction in his income.
4. The respondent No.1 did not appear before the Tribunal and file written statement. However the Insurance Company, arraigned as respondent No.2, filed written statement denying all the averments made in the 4 claim petition. It also denied that the income of the claimant reduced because of the injuries sustained by him in the accident.
5. Before the Tribunal, the claimant adduced evidence as PW1 and also examined the doctor as PW2. He produced 14 documents as per Ex.P1 to Ex.P14. The Tribunal, after evaluating the evidence, awarded an amount of Rs.44,90,000/- with interest at the rate of 6% per annum. In addition to granting medical expenses and some amounts on other conventional heads, the Tribunal calculated the loss of future earning capacity of the claimant at Rs.44,00,000/- by holding the annual income of the claimant as Rs.50,00,000/-. Though the doctor who was examined before the Tribunal, opined that disability of claimant was 20%, the Tribunal held disability factor as 8% for calculating the compensation to be granted towards loss of future earning capacity.
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6. We have heard learned counsel for the appellant / Insurance company and learned counsel for respondent / claimant.
7. The learned counsel for the appellant argues that there is no loss of future income as a result of injuries sustained by the claimant in the accident. He was a Class- I contractor. For proving the loss of future earning capacity, the claimant should have produced documents to show that there was reduction in his income after the occurrence of accident. He just produced income tax return filed in the year 2009. It really the injuries that he suffered affected his earning capacity and thereby there was reduction in his income in the years subsequent to accident, he should have produced income tax returns of subsequent years also. When he was cross examined, he was questioned whether he could produce the income tax returns of subsequent years. The burden was on him to prove loss of earning capacity. Intentionally he did not produce the income tax returns as he know very well that his income had not dwindled. The Tribunal should have 6 drawn adverse inference. He also pointed out that nature of injuries sustained by him did not affect his earning capacity. The Tribunal should not have granted any amount towards loss of future earning capacity. In support of his arguments, he places reliance on two judgments of the Supreme Court in the case of Sandeep Khanuja V/s Atul Dande and another, (2017) 3 Supreme Court Cases 351 and Oriental Insurance Co. Ltd. V/s Meena Variyal and others, (2007) 5 Supreme Court Cases 428. He submitted that the appeal should be allowed and quantum of compensation reduced by awarding certain amounts towards loss of amenities, medical expenses, pain and suffering and attendants' charges.
8. The learned counsel for the respondent argues that the injuries sustained by the claimant did affect his working capacity. There was loss of income. According to PW2 disability factor is 20%, but the Tribunal held it as 8% only. The judgment of the Tribunal is well reasoned. 7 There are no grounds to interfere and appeal should be dismissed.
9. Having heard both sides, it is to be stated that the injuries sustained by a person in an accident may or may not result in disability; what may be considered as disability for one may not be a disability for the other; it is relative from person to person depending upon one's employment or nature of work undertaken for earning livelihood. The learned appellant's counsel has referred to judgment of the Supreme Court in Sandeep Khanuja (Supra) to garner support for his argument that the no amount could have been awarded towards loss of future earnings as the injuries sustained by the claimant did not affect him to continue his contract work. We are of the opinion that this judgment of the Supreme Court is not helpful to appellant. In fact what the Hon'ble Supreme Court has reiterated is that there can not be a mechanical approach is assessment of compensation; the effect and impact of disability on the earning capacity must be 8 considered. With reference to the facts of the case before the Supreme Court, it is held as below:
14. "The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, MACT approached the issue in the right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of MACT, on the application of the aforesaid test, is erroneous. A very myopic view is taken by MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is not impaired. Such a conclusion was justified if the appellant was in the employment where job requirement could be to do sitting/table work and receive monthly salary for the said work. An important feature and aspect which is ignored by MACT is that the appellant is a professional Chartered Accountant. To do this work efficiently and in 9 order to augment his income, a Chartered Accountant is supposed to move around as well.
If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is not only required a Chartered Accountant is primarily doing audit work, he is not only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did not go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is 10 a definite loss of earning capacity and it calls for grant of compensation with the adoption of multiplier method, as held by this Court in Yadava Kumar v. National Insurance Co. Ltd."
10. In this case as per Ex.P5, the injuries suffered by the claimant, were (1) abrasion on forehead measuring ½" x ½", with bleeding, (2) Deformity of left shoulder and occipital region at proximal of left humerus bone. X-ray showed oblique fracture at the proximal 1/3 of left humerous. PW2, the doctor who treated the claimant adduced evidence before the Tribunal stating that the claimant underwent surgery on 27.07.2010 for insertion of plates and screws. Giving the details of difficulties arising due to restriction of movement, he opined about 20% permanent physical disability. But the Tribunal did not consider that 20% disability, rather it was reduced to 8% by the Tribunal. Then the Tribunal relied upon Ex.P11- Income Tax returns for the year 2010-11, which showed the gross income of claimant for as Rs.60,78,670/-. Noticing that the claimant had paid income tax of Rs.17,74,429/-; the Tribunal approximated that 11 Rs.50,00,000/- could be considered for calculating the compensation towards loss of future income. The arguments of the learned counsel for the appellant is that because the claimant did not produce the Income Tax returns of the subsequent years, he wanted to suppress the fact that there was increase in his income. It is difficult to accept this argument of the learned counsel. It is true that the claimant did not produce the Income Tax returns of the subsequent years. But this is not a ground for denying any amount towards loss of future income. He is Class-I contractor and he is supposed to go out in connection with his work. This is one factor that has to be taken into consideration. This is not such a kind of work as can be attended to sitting inside office. The learned appellant's counsel has referred to another judgment of the Surpeme Court in Meena Variyal (Supra) in support of his argument that adverse inference should have been drawn against the claimant for not producing income tax returns for the year subsequent accident. But this judgment is also not helpful to the appellant for, the facts 12 of that case discloses that the wife of the deceased asserted that her husband salary was Rs.9,000/- per month; she did not produce any document even though her husband had been employed as a Regional Manager in a Company. Same is not the position in the case before us, the claimant produced income tax return for the year 2010-11 as per Ex.P11. The Tribunal did not take the gross income of the claimant, rather the amount was reduced to Rs.50,00,000/- for calculation of loss of future income. We find no error in it. We also think it apt to mention here the observation of the Supreme Court in 'Meena Variyal',
7. "It appears to us that merely going by some decision or other, without appreciating the facts in a given case, in the light of the law, if any, declared by this Court, does not lead a court or Tribunal to a correct conclusion in the normal course."
11. Viewed in this manner, it has to be stated that in the background of the injury sustained by the claimant, 13 at least to some extent, there is some disability affecting his earning capacity. We do not find any infirmity or error in the approach of the Tribunal to the given set of facts and circumstances. The Tribunal has awarded just compensation. This discussion takes us to dismiss the appeal. There is no order as to costs.
Sd/-
JUDGE Sd/-
JUDGE SMP