Karnataka High Court
Shubham S/O. Ghanshyam Sharma vs G.N.Anand Babu on 16 January, 2017
Author: Raghvendra S. Chauhan
Bench: Raghvendra S. Chauhan
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
M.F.A. NO. 21026/2013 (MV)
C/W.
M.F.A. NO. 20271/2013
M.F.A. NO. 21026/2013 :
BETWEEN :
SHUBHAM S/O. GHANSHYAM SHARMA
AGE: 19 YEARS, OCC: STUDENT
R/O. PALANKAR BUILDING,
KEMPAGERI, SANGAM CIRCLE
DHARWAD.
... APPELLANT
(BY SRI HARISH S MAIGUR, ADVOCATE)
AND :
1. G.N.ANAND BABU
S/O. G. NARAYANASWAMY
AGE: MAJOR, OCC: BUSINESS,
R/O. H.P.L.P. GAS DISTRIBUTORS
B.H. ROAD, GOURIBIDANAUR,
DIST: KOLAR, KARNATAKA
2. UNITED INDIA INSURANCE CO. LTD.,.
BRANCH OFFICE SHRINIVAS
TALKIES COMPLEX,
DHARWAD - 580001.
3. IRAPPA S/O. PATRAPPA SHIGIHALLI
AGE: MAJOR, OCC: DRIVER,
2
R/O.BEGUR, TQ & DIST: DHARWAD
4. NATIONAL INSURANCE CO.LTD.
BRANCH OFFICE APMC YARD,
MRUTYUNJAY NAGAR,
DHARWAD-580008.
... RESPONDENTS
(BY SRI LAXMAN B. MANNODDAR, ADVOCATE FOR R2;
SRI RAJASHEKHAR S. ARANI, ADVOCATE FOR R4;
R1 & R3 - SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT, AGAINST THE JUDGMENT AND AWARD
DATED 28.06.2012 PASSED IN M.V.C. NO.440/2006 ON THE
FILE OF I ADDL. SENIOR CIVIL JUDGE AND CJM AND ADDL.
M.A.C.T., DHARWAD, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
M.F.A. NO. 20271/2013 :
BETWEEN :
NATIONAL INSURANCE CO.LTD.,
BRANCH OFFICE,
APMC YARD MRUTUNJAYA NAGAR
DHARWAD, NOW REPRESENTED BY ITS,
ADMINISTRATIVE OFFICER,
REGIONAL OFFICE, HUBLI.
... APPELLANT
(BY SRI RAJASHEKHAR S. ARANI, ADVOCATE)
AND :
1. SHUBHAM
S/O GHANSHYAM SHARAMA,
AGE: 18 YEARS, OCC: STUDENT,
REP. BY HIS FATHER
GHANSHYAM SHARMA,
R/O: PLANKAR BUILDING KEMPAGERI,
SANGAM CIRCLE, DHARWAD.
NOW SINCE MAJOR
REPRESENTED BY HIMSELF.
2. G N ANADA BANU
3
S/O G NARAYANSWAMY,
AGE: MAJOR, OCC: BUSINESS,
R/O: H.P.L.P GAS DISTRIBUTORS
B.H. ROAD, GAURIBIDANUR,
KOLAR DISTRICT, KARNATAKA.
3. UNITED INDIA INSURANCE CO.LTD.,
BRANCH OFFICE
SHRINIVAS TALKIES COMPLEX,
DHARWAD.
4. IRAPPA S/O PATRAPPA SHIGIHALLI,
AGE: MAJOR, OCC: DRIVER
R/O: BEGUR,
TALUK & DIST: DHARWAD.
... RESPONDENTS
(BY SRI HARISH S. MAIGUR, ADVOCATE FOR R1;
SRI LAXMAN B. MANNODDAR, ADVOCATE FOR R3;
SRI SHIVARAJ C. BELLAKKI, ADVOCATE FOR R4;
R2 - SERVED)
THIS MFA IS FILED U/S 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED:28-06-2012
PASSED IN MVC NO.440/2006 ON THE FILE OF I-ADDL. SENIOR
CIVIL JUDGE AND CJM AND MEMBER, ADDL. MACT,
DHARWAD.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
SREENIVAS HARISH KUMAR, J, DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals have been disposed of by common judgment as they arise out of the judgment and award dated 28.06.2012 passed by I Additional Senior Civil Judge and Additional M.A.C.T., Dharwad, in M.V.C. No.440/2006.
2. M.F.A. No.21026/2013 is filed by the claimant. M.F.A. No.20271/2013 is filed by the Insurance Company. 4
3. By referring to the parties with respect to the position that they held in the Tribunal, the facts are summed up as below :
Claimant by name Shubham was aged about 12 years on the date of accident. On 23.07.2005 at about 3.15 p.m., claimant was returning from school, and when he got down from the bus near NTTF bus-stop, on P.B. Raod, Dharwad, a lorry bearing Registration No.KA-40/5005 which was going towards Hubli dashed against him. It is alleged that the driver of the lorry was driving it rashly and negligently. As a result of the accident, claimant sustained the following injuries :
i. Degloving injury involving whole right lower limb from inguinal region to ankle;
ii. Comminuted fracture of middle third of right ulna and radius, injuries all over the body;
iii. Fracture of both hip joints involving right iliac wing;
iv. Soft tissue injuries to right thigh;5
4. Claimant was immediately shifted to K.I.M.S. Hospital, Hubli; on the same day he was shifted to S.D.M. College of Medical Sciences and Hospital, Sattur. He was an inpatient there from 23.07.2005 to 29.12.2005. Even after discharge from the Hospital, he continued to take treatment. Hence, a claim for compensation was lodged for Rs.1,27,50,000/-.
5. The National Insurance Company i.e., contesting party being respondent No.4, before tribunal, denied the accident as also rash and negligent manner of driving of the lorry by the driver. It has specifically taken a stand that the accident occurred due to the negligence of the claimant as he suddenly tried to cross the road after getting down from the bus without observing the vehicular movement on the road. The Insurance Company has denied that the accident has caused permanent disability to the claimant. It is also contended that the claim made by the claimant is exorbitant; and that its liability was subject to the terms and conditions of the insurance policy.
6
6. During the trial, claimant examined six witnesses as P.Ws.1 to 6 and got marked 29 documents. Respondents did not adduce any oral evidence, but the insurance policy, as per Ex.R-1, was marked by consent.
7. On perusing the oral and documentary evidence, the Tribunal granted Rs.10,18,895/- as compensation under various heads along with interest at the rate of 8% p.a. from the date of petition till the date of payment by giving following reasons :
(a) The claimant was operated on 24.07.2005, 26.07.2005, 23.09.2005, 07.11.2005 and 23.11.2005 and he was discharged on 29.12.2005 with an advise for follow-up treatment. He was again admitted on 06.01.2006 and also on 23.04.2006 and discharged on 08.05.2006. He was advised to take physiotherapy treatment on 17.08.2006 for right lower limb and was again discharged on 18.08.2006.
In view of the treatment taken by the claimant for such a longer time and having regard to the nature of injuries, the tribunal granted Rs.1,00,000/- towards pain and suffering. 7
(b) Having regard to the evidence adduced by the Doctors i.e., P.Ws.3 and 4, the tribunal has observed that the claimant has to suffer throughout his life as he is not in a position to play, walk and run like a normal boy. Therefore, tribunal has granted Rs.1,00,000/- towards loss of amenities and future unhappiness.
(c) With regard to the future earnings, the tribunal has come to the conclusion, on the basis of the evidence given by P.Ws.3 and 4, the Doctors, who treated the claimant that the claimant was having 30% permanent functional disability. Rs.6,000/- was taken as the notional income of the claimant and applying the multiplier '18' the tribunal has granted Rs.3,88,800/- under the head 'loss of future earnings'. Tribunal has granted Rs.25,000/- under the head 'loss of marriage prospects'; Rs.50,000/- under the head 'loss of expectation of life'; based on the medical bills produced by the claimant, a sum of Rs.2,80,095/- has been granted towards 'Medical expenses'; in addition a sum of Rs.75,000/- is granted under the head 'Incidental expenses'. 8
8. Assailing the judgment of the tribunal, the learned counsel for the claimant argues that the tribunal has grossly erred in granting only Rs.1,00,000/- towards pain and sufferings. Tribunal has not considered the actual nature of the injuries suffered by the claimant. According to him, the tribunal should have granted atleast an amount of Rs.3,00,000/- under the said head. He argues that even under the head 'loss of amenities and future unhappiness' the amount of Rs.1,00,000/- granted by the tribunal is on the lower side.
9. As regards 'loss of future earnings', it is his argument that the tribunal should not have held Rs.6,000/- as the income of the claimant. In support of his arguments, by placing reliance on the judgment of the Hon'ble Bombay High Court in the case of New India Assurance Co. Ltd., v. Shweta Dilip Mehta and Others [2010 (2) T.A.C. 308 (Bom.)], he argues that Rs.1,00,000/- should have been taken as the annual income of the claimant. Towards 'loss of marriage prospects', he submits that the amount of Rs.25,000/- awarded by tribunal is on the lower side. The tribunal ought to have taken into consideration the fact that 9 the claimant has lost both his testicles, and therefore, he had lost his marriage prospects. So, according to him, Rs.3,00,000/- should have been granted under this head. Even under the head 'loss of expectation of life' Rs.1,00,000/- should have been granted instead of Rs.50,000/-. Therefore, he prays for enhancing the compensation under all these heads.
10. The learned counsel for the Insurance Company argues that the tribunal has committed an error by taking Rs.6,00,000/- as the notional income of the claimant. At the time of accident, the age of the claimant was 12 years and he was a student. His annual income should have been taken as Rs.30,000/-. He further argues that the tribunal has applied the multiplier of '18', but the appropriate multiplier is '15', as per the principles laid down by the Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another [(2009)6 SCC 121].
11. Having heard the argument of learned counsel and on perusal of the judgment and award; as well as the 10 entire oral and documentary evidence, we are now of the opinion that the amount granted by the tribunal under various heads are on the lower side, and however, the income of the claimant taken as Rs.6,000/- per month is on the higher side and therefore the award needs modification.
12. As a result of the accident, claimant has suffered the following injuries :
i. Degloving injury involving whole right lower limb from inguinal region to ankle;
ii. Comminuted fracture of middle third of right ulna and radius, injuries all over the body; iii. Fracture of both hip joints involving right iliac wing;
iv. Soft tissue injuries to right thigh;
13. The above injuries not only affect the movement of the claimant, but also affect the other functions of the body. Two Doctors, P.Ws. 3 and 4, who have been examined by the tribunal have clearly opined that the claimant was operated five times, on 24.07.2005, 26.07.2005, 23.09.2005, 07.11.2005 and 23.11.2005. He was discharged on 11 29.11.2005 with an advice for follow-up treatment. P.W.4 has deposed that petitioner was again admitted on 06.01.2006 and also on 23.04.2006 and discharged on 08.05.2006. It is the evidence of P.W.4 that the claimant had to be admitted to the hospital again for physiotherapy treatment on 17.08.2006 and then was discharged on 18.08.2006.
14. It is the evidence of P.W.3 that even after prolonged treatment, the claimant is not in a position to walk, sit, run, because his hip bone has lost its shape. The right leg is shortened for 8 cms. He cannot squat; cannot bend his right knee and ankle. He has lost muscles on the right thigh and leg because of degloving injuries and girth of muscles of right lower and upper limb is reduced considerably. P.W.3 has also stated that inspite of best treatment given, the skin grafting could not be of expected level and he is suffering pain and agony because of the injuries.
15. Photographs have been produced and marked as Ex.P-14. They clearly indicate the nature of injuries suffered 12 by the claimant to his right leg, i.e., from ankle extending upto waist. Even on his left leg also there are injuries on the ankle position and thighs. More than everything what is shocking is that because of the accident he has lost his two testicles. So, in the light of this kind of severity of the injuries, the entire case has to be looked into.
16. Certainly these injuries have taken away the future of the claimant. He is not in a position to compete with other boys. The pain and suffering that he has undergone during the treatment and that he will have to undergo even after treatment cannot be measured in terms of money. Having regard to the fact that the claimant has lost his testicles, he has lost his marriage prospects. Therefore circumstances being like this, we are of the opinion that the compensation granted by the tribunal under the heads 'pain and sufferings', ' loss of amenities and future unhappiness', 'loss of marriage prospects', and 'loss of expectation of life', is on the lower side. Hence, we award a sum of Rs.3,00,000/- towards 'pain and sufferings', a sum of Rs.2,00,000/- towards 'loss of amenities and future unhappiness', a sum of Rs.3,00,000/- towards 'loss of 13 marriage prospects', and a sum of Rs.1,00,000/- towards 'loss of expectation of life'.
17. As regards the 'loss of future earnings', the learned tribunal has taken the notional income of the claimant as Rs.6,000/- per month.
18. The learned counsel has drawn our attention to the judgment of Hon'ble High Court of Bombay in the case of Shweta Dilip Mehta (supra) and submitted that Rs.1,00,000/- should have been taken as the income of the claimant for calculating the compensation under the head 'loss of future earnings'. In the said decision, the accident had taken place in the year 1993. But, this Court is consistently following a chart prepared for settling the disputes in Lok Adalat. As per the chart, if the accident is of the year 2005, the income that has to be taken into consideration is Rs.3,500/- per month. The learned tribunal has taken Rs.6,000/- as notional income. On what basis monthly income at Rs.6,000/- has been taken into consideration by the tribunal is not properly explained. 14
19. The learned counsel for Insurance Company has argued that the notional income should be taken as Rs.30,000/- per year. His argument also cannot be accepted. Following the chart, Rs.3,500/- per month can be considered as the notional income of the claimant for calculating the compensation under the head ' loss of future earning'.
20. The tribunal has taken the multiplier as '18'. The learned counsel for Insurance Company argues that the appropriate multiplier is '15'. The selection of multiplier to be applied in case of injury sustained by a boy, aged below 15 years, has been clearly dealt with by the Hon'ble Bombay High Court in the case of Shweta Dilip Mehta (supra). We are persuaded to follow the principles laid down by the Hon'ble Bombay High Court. Para 24 of the judgment is extracted hereunder :
" 24. We note the mathematical progression of the multiplier values, in the aforementioned schedule, as explained in Sarla's case [supra]:
"We, therefore, hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared be applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age group of 15 -15
20 and 20 - 25 years), reduced by one unit every five years, that is M - 17 for 26 to 30 years, M -16 for 31 to 35 years, M - 15 for 36 to 40 years. M - 14 for 41 to 45 years and M - 13 for 46 to 50 years, then reduced by two units for every five years, that is, M - 11 for 51 to 55 years, M - 9 for 56 - 60 years, M -7 for 61 to 65 years and M - 5 for above 65 years." As per this progression, the multiplier in the present case, for a victim below 15 years of age ought to have been 19. However, we are also bound by the judgment in Trilok Chandra's case [supra], where the Hon'ble Apex Court held that even in cases under section 166 of the Act, the maximum multiplier to be applied is 18, which was an increase from the existing value of 16 that was laid down earlier in Susamma Thomas's case [supra]. The cap of '18' as the maximum multiplier that may be applied in any case has been reiterated in Sarla's case [supra] as well. Hence, we conclude that irrespective of the mathematical progression in the schedule, the maximum multiplier that may be applied is 18, even if the victim is below 15 years. Thus, in the present case, the multiplier to be applied for computing 'loss of future income' for the victim is 18."
21. It is clearly stated in this ruling that even in case of an injury to a boy of 15 years, the appropriate multiplier could be '18' ; and while explaining the multiplier values, the Hon'ble Bombay High Court has referred to the case of Sarla Verma (supra). Therefore, the tribunal has properly applied the multiplier for calculating the compensation.
22. The tribunal has held that there is 30% disability to the whole body. In our opinion, having regard to the nature of injuries sustained by the claimant, that too 16 having lost his two testicles, disability taken as 30% is not correct. The Doctors have clearly adduced evidence as to what are all the difficulties and problems that the claimant has to face in future. Under these circumstances, we are of the opinion that disability is upto 70%. Therefore, now the total compensation to be paid to the claimant under the head 'loss of future prospects' can be calculated as below :
Rs.3,500/- x 12 x 18 x 70% = Rs.5,29,200/-
23. The compensation awarded by tribunal under the heads 'medical expenses incurred' and 'incidental expenses', is just and proper and remains undisturbed.
24. Therefore, in view of the above discussion, the total compensation payable to the claimant works out to Rs.17,84,295/-. The said amount carries an interest at the rate of 8% p.a., as has been held by the tribunal.
25. In the result, we pass the following :
ORDER
i) M.F.A. No.21026/2013, filed by the claimant and M.F.A. No.20271/2013, filed by the Insurance Company, are partly allowed. 17
ii) The judgment and award dated 28.06.2012 passed by I Additional Senior Civil Judge and Additional M.A.C.T., Dharwad, in M.V.C. No.440/2016 is modified.
iii) The claimant is entitled to the total compensation of Rs.17,84,295/- along with interest at the rate of 8% p.a. from the date of petition till realisation.
iv) The Insurance Company is directed to deposit the compensation amount within a period of four weeks from today.
v) The statutory deposit made by the Insurance Company, be released in favour of the claimant.
Sd/-
JUDGE Sd/-
JUDGE hnm