Partly allowed

Dr. Somashekar S/O Chandrahas Angadi v. Sri. Venkatesh Kalakappa Kadbur

Karnataka HC6 Oct 2017MFA/23161/2010

Case brief

AI extract

What is this about?

High Court of Karnataka in an appeal under Section 173(1) MV Act enhanced compensation awarded by the Motor Accidents Claims Tribunal. The court allowed enhancement for pain and suffering, loss of income during treatment, loss of future income, and awarded specific compensation for loss of future career prospect due to injury preventing appointment as Army Dental Corps officer.

What did the court decide?

The judgment was modified to enhance the compensation by ₹8,39,720/-, fixing the total compensation at ₹9,84,185/-.

Dr. Somashekar S/O Chandrahas Angadi Vs Sri… — Motor Accident Claims | Karnataka HC (2017)

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M.F.A.No.23161/2010

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF OCTOBER, 2017

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BEFORE

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THE HON’BLE DR.JUSTICE H.B.PRABHAKARA SASTRY

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MFA No.23161/2010 (MV)

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BETWEEN:

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DR.SOMASHEKAR S/O CHADRAHAS ANGADI, AGE: 30 YEARS, OCC: DENTIST, R/O VIJAYNAGAR, TAL: HUBLI, DIST: DHARWAD.

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... APPELLANT

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(BY SRI.SANTOSH B.MALAGOUDAR, ADV.)

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AND:

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SRI.VENKATESH KALAKAPPA KADBUR, AGE: MAJOR, OCC: LORRY OWNER,

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R/O MARUTI CIRCLE, NEKAR NAGAR,

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OLD HUBLI, DIST: DHARWAD.

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NATIONAL INSURANCE CO.LTD.,

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BY ITS DIVISIONAL OFFICE,

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SUJATA COMPLEX, HUBLI.

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N.W.K.R.T.C.,

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BY ITS MANAGING DIRETOR,

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CENTRAL OFFICE, GOKUL ROAD, HUBLI.

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SELF INSURANCE FUND, N.W.K.R.T.C. CENTRAL OFFICE, GOKUL ROAD, HUBLI.

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... RESPONDENTS

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(BY SMT.SHARMILA M.PATIL, ADV. FOR R2,

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SRI.C.B.PATIL & SMT.SUNITA P.KALASOOR, ADVS. FOR R3 & R4, R1 NOTICE DISPENSED WITH)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.08.2009, PASSED IN 218/2006, ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.) AND MEMBER ADDL. MACT, HUBLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appellant herein was the claimant before the Principal Civil Judge (Sr.Dn.) and Additional Motor Accident Claims Tribunal, Hubballi (henceforth referred to as the ‘Tribunal’ for brevity) in MVC No.218/2006 whose claim petition under Section 166 of the Motor Vehicles Act, 1988 was allowed in part by the impugned judgment and award dated 01.08.2009. Seeking enhancement of the compensation awarded by the Tribunal, the appellant has preferred this appeal.

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In his memorandum of appeal, the appellant has

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taken a contention that the quantum of compensation awarded by the Tribunal under various heads are all meager. The appellant has also taken a specific

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contention that the Tribunal has not considered both oral and documentary evidence to the effect that the claimant was assured of an employment as Short Service Commission in the Army Dental Crops. If that were to be taken, his monthly salary would be in no way lesser than `25,000/- p.m. As such, he has lost his future career as well the prospects’. Further stating that the Tribunal ought to have awarded the compensation as claimed by him, has prayed for allowing the appeal.

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Heard the arguments from both sides and

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perused the materials placed before this Court.

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Learned counsel for the appellant in his argument reiterated the contention taken up by the appellant in his memorandum of appeal.

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The present appeal being the claimant’s appeal and the respondents having not preferred either crossobjection or a counter appeal, the question of occurrence of accident on the date, time and place as alleged by the

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claimant and also the alleged rash and negligent driving on the part of the driver of the offending vehicle is not in dispute. Therefore, the question of occurrence of accident and the alleged liability of the respondents to pay compensation to the injured claimant for the injuries sustained by him in the accident need not be re-analysed again. The only question that remains to be considered is about the reasonableness of the quantum of compensation awarded by the Tribunal.

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After analysing the evidence and the materials placed before it, the Tribunal has awarded the compensation under the following heads with the sum shown against them:

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Amount( ` )

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Towards pain andagony		25,000
Towardsmedicalexpenses		59,745
Towardsloss of futureincome		36,720
Towards loss of income	during	18,000
treatment
Towards loss of amenitie	s and	5,000
happiness
	Total	1,44,465

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M.F.A.No.23161/2010

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The discharge summary at Ex.P8 and also the

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evidence of P.Ws.1 and 3 go to show that, on the very same day of the accident, the claimant was got admitted to the Nalwad Multi Specialty Hospital and Research Centre, Hubballi, wherein he was an inpatient for a period of 8 days. He was diagnosed and found out that he had sustained closed fracture left humerus middle 1/3^rd . The evidence of P.W.3, the treating doctor as well as the discharge summary at Ex.P8 also go to show that he was surgically operated and implant was installed in the form of screws at the fractured portion of the left humerus. Thus, the pain he must have suffered would be on higher side. As such, the compensation awarded by the Tribunal under the head of ‘pain and suffering’ requires an enhancement by a sum of `5,000/- to bring it to a reasonable quantum.

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The compensation awarded under the head

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‘medical expenses’ since being based upon the medical

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bills at Ex.P21 and are actuals, there is no reason for enhancement of the said compensation.

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The claimant as P.W.1 has stated both in his

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claim petition as well as in his evidence that, prior to the accident he was practicing as a dentist and as a specialised dentist was visiting three dental clinics as consultant from whom he was drawing a total salary of a sum of 15,000/- p.m. In that regard, he has not only examined P.W.2-Dr.Gopal P.Kulkarni, but also has produced three salary certificates said to have been issued by those three clinics and marked them as Exs.P16, P17 and P18. Those three documents are shown to have been issued by three separate dental clinics stating that the claimant was a consultant doctor in their hospital and that they were giving him monthly salary of a sum of 5,000/-, 6,000/- and 4,000/- respectively, which in total comes to `15,000/-.

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The learned counsel for the respondent-Insurance Company in her arguments though submitted that the alleged salary certificates at Exs.P16, P17 and P18 being stamped with revenue stamp would not carry the confidence, but affixation of the revenue stamp since would not diminish their evidentiary value, the said argument is not acceptable.

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P.W.2-Dr.Gopal Kulkarni apart from stating that he is also a dentist having a private practice in a dental clinic, but also has stated that the claimant was a consultant doctor in his clinic, who was being paid with a

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monthly remuneration of a sum of 5,000/-. The said witness has also identified Ex.P16 as the salary certificate said to have been issued by him. The Tribunal without considering this evidence which could not have shaken much in the cross-examination of P.Ws.1, 2 and 3 has arrived at a conclusion that the income of the injured should be taken at 6,000/- p.m. Since the said

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conclusion of the Tribunal is with no valid reason, the same is not acceptable. However, at the same time, the evidence of P.W.2 on its facial value cannot be accepted for the reason that the said witness in his examination-inchief has stated that he was paying monthly salary to the claimant through cheque and according to him, the claimant was also visiting as a consultant in Dr.Nidavani and Dr.Patil’s clinics. However, the very same witness in his cross-examination has stated that he was not paying the salary through cheque to the claimant and he does not know which are the clinics the claimant was visiting as a consultant. However, the evidence of P.W.1 and Exs.P16, P17 and P18 could not be discarded in toto. Thus, in the facts and circumstances of this case and looking at the professional qualification and the alleged private practice of the claimant, his monthly income as on the day would be taken at `12,000/- p.m. If the said income is taken as his monthly income, then the compensation awarded towards ‘loss of income during treatment’ which is at

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18,000/- deserves an enhancement by an additional sum of 18,000/-.

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Towards ‘loss of future income’, the Tribunal

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has considered the very same income and applied the multiplier of ‘17’ which undisputedly applicable for the age of the claimant as on the date of the accident and has taken the percentage of disability at 3%. P.W.3, who claims to be the treating doctor, in his evidence has stated that, according to his evaluation and after medical examination of the claimant is that the claimant was suffering with permanent partial impairment of 10% to 15% with respect to left upper limb. He being the treating doctor, his evidence cannot be totally rejected. However, his opinion regarding percentage of disability was confined to the left upper limb, but not applicable to the whole body. As such, the percentage of disability arrived at by the Tribunal at 3% as applicable to the whole body is maintained. Thus, for the time being, keeping open the

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alleged entitlement of the claimant for compensation under the head ‘loss of future prospects’, the compensation for which he is entitled towards ‘loss of future income’ would be at 73,440/- (12,000/- x 12 x 17 x 3/100). After deducting a sum of `36,720/- as awarded

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by the Tribunal, the claimant is entitled for an enhancement of compensation of a sum of `36,720/-.

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The Tribunal has also awarded compensation towards ‘loss of amenities and happiness’ at `5,000/-. Considering the facts and circumstances of this case, I do not find any reason to modify the said quantum.

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The learned counsel for the appellant in his

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argument emphatically submitted that the Tribunal has ignored the main contention as well as the evidence of the claimant about loss of future career as a ‘Short Service Commission Officer’ in Indian Army. The evidence as well as the documents go to show that though he was selected and appointed as a dentist in the Indian Army, but due to

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the injury sustained by him in the accident, he was found medically unfit. As such, the Tribunal ought to have considered the said aspect of loss of future career and prospects and awarded the compensation taking his income at `25,000/- p.m. for his entire future career. The learned counsel further relying upon a judgment of the Hon’ble Supreme Court in Rekha Jain Vs National Insurance Company Limited and Others reported in (2013) 8 Supreme Court Cases 389 and submitted that, in view of loss of future prospects, 100% disability is to be considered and he may be awarded adequate compensation.

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In Rekha Jain’s case (supra), the claimant/injured was a film and TV actress, aged about 24 years and who due to the injuries sustained by her in a Road Traffic Accident and subsequent permanent partial disablement and disfigurement of face due to the injuries was proven to be unable to perform roles as actress in films and TV in

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future, i.e., there was loss of her career. The permanent disability was reckoned at 30% by Tribunal and High Court, however, considering the nature of her avocation as film actress wherein physical appearance particularly facial features are important and on account of the accident her face was disfigured and also she had put on weight and therefore was unable to perform roles as an actress in films and TV in future. Her permanent disability was treated as 100%.

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With great respect to the said judgment, in the case on hand, it is nobody’s allegation that any such physical impairment disabling the claimant from pursuing his avocation has occurred. There is no evidence either oral or documentary to the effect that due to the injuries suffered by the claimant in the accident, he was ceased to be a practitioner as a dentist. It is also not his case that he could not pursue the avocation as a dentist and has surrendered his registration to the Dental Council of

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India. As such, the disability assessed by the Tribunal at 3% appears to be reasonable. However, the point to be noticed herein is the alleged ‘loss of future career and prospects’ of the claimant due to the injuries suffered by him.

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According to the claimant/P.W.1, few days

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prior to the date of accident, i.e., on 21.02.2006 he was served with an appointment letter by the Ministry of Defence stating that he has been selected for Grant of Short Service Commission in the Army Dental Corps in the rank of Captain for a period of 5 years in the first instance and extendable to another 5 years and he was asked to report for duty on 23.03.2006. It is his further case that before the last date for reporting duty, he met with the accident in question on the date 08.03.2006. Thereafter, he got an extension by the same Ministry granting him time for reporting for duty on or before 24.04.2006, as could be seen from Ex.P6. Since he could

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not made it to report for duty on the extended date also, as could be seen from the document at Ex.P5 dated 19.07.2006, he got a second extension of joining time till 18.08.2006. It is his evidence both oral and documentary that by virtue of the second extension, he appeared before the concerned authorities for a medical test as required on 21.08.2006. However, he was found medically unfit due to fracture of shaft of left humerus (operated). Ex.P7 is the document issued by the Col Commanding Officer, Military Dental Centre to this effect. These documents have not been categorically disputed or denied in the cross-examination of P.W.1. Merely because the author of these documents has not been examined, by that itself, it cannot be said that those documents cannot be accepted that too in the light of corroborative evidence by P.W.1 and in the absence of any reason to suspect the contents of those documents.

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The learned counsel for the respondent-

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Insurance Company though submitted in her argument that Exs.P4 and P5 are not the letters of appointment, but a reading of those documents clearly go to show that the employing officer has clearly stated in those documents that the claimant has been selected for Grant of Short Service Commission and that he was directed to ‘report for duty to the Commanding Officer, Military Dental Centre, Roorkee’. When the documents shows that he has been selected and was directed to report for duty, it cannot be considered, it is only a proposal and there is no assurance of employment for him. However, that assurance would be subject to the condition of he qualifying in the medical test before admitting or reporting to the duty. It is at this juncture, when the claimant went for reporting for duty, in the medical test he was rejected only for the reason of the claimant sustaining fracture shaft of humerus, which was an injury sustained by him in the Road Traffic Accident in question. Thus, it is clear from the evidence of P.W.1 as

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well the document at Exs.P4, P5, P6 and P7 that, had the claimant not been sustained injuries in the Road Traffic Accident, he could have definitely allowed to report for duty, declaring him as medically fit. Thus, there is a direct nexus between the injuries suffered by him in the Road Traffic Accident and his disqualification in the medical test, which has ultimately resulted in the claimant being denied with an assured career of at least 5 years in the Army Dental Corps as a Short Service Commission. Thus, the injury has directly resulted in the claimant loosing his future career/prospects at least for 5 years. Though learned counsel for the appellant in his argument submitted that the assured career was for a minimum period of 10 years, but Exs.P4 and P5 make it very clear that the said letter of selection was for a period of 5 years in the first instance and extendable to another 5 years (total 10 years) at the discretion of the Government of India. Since the said extension of 5 years was at the discretion of the Government of India, it cannot be claimed

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as a matter of right. The period of assured career as Short Service Commission, provided he had been admitted to report for duties for 5 years.

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The claimant both in his evidence as well as through Ex.P9 has stated that, had he been permitted to report to duty as Short Service Commission, his salary would have been not less than `25,000/- p.m. In this regard, he has also produced and marked a certificate said to have been issued by Col Commanding Officer, which is at Ex.P9. The learned counsel for the respondentInsurance Company vehemently submitted that the said document is not addressed to the Tribunal or a particular individual, as such, it is a document in rem and moreover, the author of the said document has not been examined.

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A perusal of the said document and the evidence of P.W.1 go to show that the said document at Ex.P9 was not seriously disputed by the respondent side in the crossexamination of P.W.1 nor any specific contention was

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taken that the said document was created and not issued by the author who is shown in the said document. That being the case, there is no reason for disbelieving the said document. Thus, from Ex.P9, it is clear that, had the claimant not sustained injury in the accident in question, he would have been permitted to report to duty as Short Service Commission and would have drawn salary of 25,000/- p.m. at least for a period of 5 years. Thus, he has lost future career and future prospects, which has resulted in the deprival of his income of 25,000/- p.m. x 12 months x 5 years. However, it cannot be lost sight of the fact that while calculating the compensation towards ‘loss of future income’, the said period of 5 years has already been included and his income was taken at 12,000/- p.m. That being the case, the calculation for the purpose of ‘loss of future career and prospect’, the said income of 12,000/- is to be deducted from the anticipated income of 25,000/- p.m. As such, the difference of income would be 25,000/- less `12,000/- =

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13,000/- p.m. Thus, for 5 years, it comes to 7,80,000/-

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(`13,000/- x 12 months x 5 years). It is this amount, the claimant is entitled to as compensation towards ‘loss of future career/prospects’.

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Barring the above, the claimant/appellant is

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not entitled for enhancement of compensation or awarding of compensation under any other heads.

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Thus, in total the claimant/appellant is

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entitled for a total enhancement of a sum of `8,39,720/(Rupees Eight Lakh Thirty Nine Thousand Seven Hundred Twenty Only), which is in addition to the compensation awarded by the Tribunal.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed in part.

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The judgment and award passed by the Principal Civil Judge (Sr.Dn.) and Additional Motor Accident Claims Tribunal, Hubballi in MVC No.218/2006 dated

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01.08.2009 is modified to the extent that the

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compensation awarded at 1,44,465/- is enhanced by a sum of 8,39,720/-, thus fixing the total compensation at `9,84,185/- (Rupees Nine Lakh Eighty Four Thousand One Hundred Eighty Five Only).

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The rest of the order of the Tribunal with respect to fixing the liability upon the respondent/s and the terms regarding deposit of the awarded amount, awarding the interest, its rate, terms regarding release of the amount awarded and awarding Advocate’s fee, shall remain unaltered.

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Draw modified award accordingly.

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Sd/-

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JUDGE

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MBS/-

Dr. Somashekar S/O Chandrahas Angadi v. Sri. Venkatesh Kalakappa Kadbur

Case brief

What is this about?

What did the court decide?

Dr. Somashekar S/O Chandrahas Angadi v. Sri. Venkatesh Kalakappa Kadbur

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

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