Allowed

Maruti S/O Popat Hipparkar v. Sampat S/O Babu Bhondave

Karnataka HC10 Apr 2019MFA/101232/2018

Case brief

AI extract

What is this about?

The High Court allowed the appeal filed by a minor claimant against the Motor Accident Claims Tribunal's award. The Court found the original compensation quantum erroneous and enhanced it to Rs. 6,99,400/- considering notional income and disability, directing partial payment via fixed deposit.

What did the court decide?

Enhanced compensation of Rs. 6,99,400/- awarded; 80% to be kept in fixed deposit for five years; interest at 8% per annum directed.

Maruti S/O Popat Hipparkar Vs Sampat S/O Babu… — Execution and Attachment | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF APRIL 2019

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PRESENT

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THE HON’BLE MR. JUSTICE G.NARENDAR

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AND

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THE HON’BLE MR. JUSTICE BELLUNKE A.S.

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M.F.A.101232/2018 (MV)

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BETWEEN

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MARUTI S/O POPAT HIPPARKAR, AGE:19 YEARS, OCC:STUDENT, R/O MUCHHANDI TALUKA, & DISTRICT BELAGAVI.

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..... APPELLANT

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(BY SRI UMESH C AINAPUR, ADV.)

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AND

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SAMPAT S/O BABU BHONDAVE, AGE:MAJOR, OCC:TRANSPORT BUSINESS, R/O PIMPARI-KOANDAR, TAL:SHRIGONDA, DIST:AHAMAD NAGAR, STATE:MAHARASTRA.

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FUTURE GENERAL INSURANCE CO. LTD., IIND FLOOR, KULBUGI LANDMARK, OPPOSITE TO T.B.GIRLS HIGH SCHOOL, DESHPANDE NAGAR, HUBLI.

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..... RESPONDENTS

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(BY SRI RAVINDRA R MANE, ADV. FOR R2 NOTICE TO R-1 IS DISPENSED WITH)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, AGAINST THE JUDGMENT AND AWARD DATED 10.10.2017 PASSED IN MVC NO.1900/2015 ON THE FILE OF THE IX-ADDITIONAL DISTRICT AND SESSIONS JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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RESERVED FOR JUDGMENT ON :05.03.2019 JUDGMENT PRONOUNCED ON : 10.04.2019

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, BELLUNKE A.S. J. DELIVERED THE FOLLOWING :

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JUDGMENT

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This appeal has been filed by the claimant in M.V.C.No.1900/2015 against the judgment and award dated 10.10.2017 passed by the learned IX Additional District and Sessions Judge and Member, AMACT, Belagavi (hereinafter referred to as ‘the Tribunal’, for the purpose of brevity).

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2. The brief facts of this case are :

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On 17.08.2015 at about 7.00 a.m. the petitioner

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was proceeding on bicycle to go to school at Shinganalli village which he was going on Sangli-Jatt Road, a goods tempo bearing No.MH-16/AY-5467 driven in a rash and

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negligent manner dashed to his cycle and ran over his legs and dragged him to a distance of 150 ft. On account of injuries sustained in the accident, his right leg was amputed above knee. The claimant has to spent lot of money for medical treatment. He was only 16 years at the time of accident. He suffered 100% physical disability. Therefore, the petitioner filed a claim petition seeking compensation through his father as minor guardian.

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After service of notice, both the respondents appeared through respective counsel but respondent No.1/owner of the vehicle has not filed objections. Respondent No.2/insurance company has filed objections denying the petition averments.

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The Tribunal, after holding trial, held that the claimant is entitled for compensation of Rs.7,66,475/- from respondent No.2. Being dissatisfied with the quantum of compensation awarded by the

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Tribunal, claimant has preferred this appeal on various grounds.

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It is contended that the Tribunal has not properly appreciated the oral and documentary evidence on record. The disability is also not properly assessed. The medical evidence has not been properly appreciated. The compensation awarded on the heads pain and suffering, future medical expenses and other conventional heads is very low. Therefore, the appellant has sought for enhancement of compensation.

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6. Heard both the sides.

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The liability to pay the compensation is not disputed by the insurance company. The insurance company has not preferred any appeal challenging the finding of the Tribunal on rash and negligent act of the driver of the vehicle in question. Therefore, the only point that would arise for our consideration would be:

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1) Whether the Tribunal has awarded just and fair compensation to the claimant for the injuries suffered by him?

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2) What order?

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Admittedly, the injured was 15 years old boy as on the date of accident. In fact, he had completed the age of 15 years. The photographs at Ex.P-9 clearly go to show that there is amputation of the leg above knee joint. PW-2 the doctor has issued the disability certificate assessing 75% to right lower limb, 30% to the left lower limb, 15% to right hand and 15% to the left hand.

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In the above context, we place reliance on the judgment in the case of Raj Kumar v. Ajay Kumar and another disposed off on 18.10.2010 wherein at paragraphs 10 to 13, the Hon’ble Supreme Court has observed as under:

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“10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant

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could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand

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may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of `loss of future earnings', if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of

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expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.

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11. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to hold an enquiry into the claim' for determining the just compensation'. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the `just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment (for example the Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of

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Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the first schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and if so the percentage.

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12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the

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claimant to such Medical Board for assessment of the disability.

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13. We may now summarise the principles discussed above : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

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(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

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(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

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Having regard to the nature of injuries suffered by the claimant and the mental agony undergone by him, we find, the sum of Rs.80,000/towards pain and suffering awarded by the Tribunal is totally erroneous in law and facts and evidence on record. We find that on the head ‘pain and suffering’, the claimant is entitled for compensation at least Rs.1,50,000/-.

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The claimant was hospitalized for 44 days. For that, the sum awarded by the Tribunal at Rs.44,000/- towards food, transport, attendant charges and loss of income during his stay in the hospital etc. is quite low. Therefore, we find a sum of Rs.75,000/- is appropriate compensation to award on this head.

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As regards medical expenses is considered, based on the calculation memo, the Tribunal has awarded a sum of Rs.3,82,475/- which is just and proper.

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On account of amputation of leg, the claimant must have to incur medical expenses in future. Therefore, we find appropriate to award a sum of Rs.75,000/- under the head ‘future medical expenses’.

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Looking to the nature of injuries, one can easily say that the claimant, throughout his life has to suffer displeasure and discomforts. Therefore, on account of amputation of leg, he is entitled for a minimum compensation of Rs.1,00,000/- on the head ‘loss of pleasure and amenities’.

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Having regard to the nature of injuries, the claimant’s marriage prospects has been considerably affected. Therefore, he is entitled for a sum of Rs.1,00,000/- on the head ‘loss of marriage prospects’.

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Now coming to the question of assessing the loss of earning capacity of the claimant on account of permanent disability, the Tribunal neither properly assessed the income nor has made out proper calculation while awarding compensation towards loss of future earning capacity. But has simply awarded a sum of Rs.2,00,000/- exclusively towards amputation of leg. In this connection, learned counsel for the appellant and learned counsel for respondent/insurance company have relied on certain authorities.

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Learned counsel for the appellant relied on a judgment of the Hon’ble Supreme Court in the case of V. Mekala vs. M. Malathi reported in LAWS (SC) 2014 4 90 and contended that the Hon’ble Supreme Court has held that the notional income should have been taken having regard to the fact that the claimant was a brilliant student and could have acquired professional degree. Therefore, monthly income assessed by the Tribunal at Rs.6,000/- per month held to be too meager. Therefore, the Hon’ble Supreme Court

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assessed the notional income of the injured at Rs.10,000/- per month. That was the case, where a girl was studying in 11^th standard and she found to be a brilliant student. She was also found to be 16 years old as on the date of accident. In this case, the boy has completed 15 years as on the date of accident.

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Learned counsel for the respondent/ insurance company has relied on a judgment in Civil Appeal No.7139/2013 dated 26.08.2013 in the case of Master Mallikarjun Vs. Divisional Manager, The National Insurance Co. Ltd. and another. It was argued that the notional income of the non-earning persons like students who are less than 16 years should be taken at Rs.15,000/- per annum. In the said case,

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the Hon’ble Supreme Court has held as under:

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12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure

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for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: -

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HEAD	COMPENSATION AMOUNT
Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability.	Rs.3,00,000/-
Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.	Rs.25,000/-
Medical and incidental expenses during the period of hospitalization for 58 days.	Rs.25,000/-
Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment.	Rs.25,000/-
_TOTAL:- _	_Rs.3,75,000/- _

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In this case, the injured/claimant had completed 15 years as on the date of accident and he was studying in S.S.L.C. The Tribunal has brushed aside the opinion of doctor, PW-2 on the ground that he has not treated the patient. The person who has been

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amputed above knee level, the disability can be even assessed by a lay man. The doctor has clearly stated about the percentage of disability. On account of amputation of leg, even functioning of other limbs will also be affected. Moreover, in this case, the injured is a young boy, aged 15 years who had bright future but due to the accident, his life is considerably affected. His earning capacity will also be considerably reduced. Having regard to the notional income assessed before the Lok Adalath, we find proper to assess the notional income of the injured at Rs.4,000/- per month. Since the petitioner had no fixed income as salary or by selfemployment, he is not entitled for 40% future prospects.

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Having regard to the multiplier to be adopted for the calculation of loss of earning capacity, learned counsel for the appellant contended that as per the decision rendered in Sarla Verma vs. Delhi Road Transport Corporation, the multiplier applicable to the age group of 15-20 years and 20-25 years is 18.

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Per contra, learned counsel for the respondent/insurance company submitted that in case of persons having no income, the notional income is to be taken into consideration. The multiplier prescribed under Section 163-A of M.V. Act is to be considered. Hence, learned counsel submitted that the boy had completed just 15 years and one month. Therefore, strenuously urged to apply the multiplier of 15.

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Having regard to the fact that the boy had completed just 15 years, we find that the multiplier of 16 would be justifiable under the facts and circumstances.

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Having regard to the medical evidence on record, we find that the permanent disability suffered by the claimant can be quantified at 80% to the whole body. Therefore, 80% of the said amount is reckoned as permanent disability. If the annual income is computed at Rs.4,000/- and multiplier of 16 is applied as the injured claimant was 15 years of age, the loss of future earning

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capacity would come

Rs.6,14,400/-

(Rs.4,000x80x12x16/100).

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23. Consequently, the reassessed compensation is

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as under:

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Sl. No.	Head	Rs.
1	Pain and suffering	1,50,000/-
2	Medicalexpenses	3,82,475/-
3	Loss of future earning capacity	6,14,400/-
4	food, transport, attendant charges and loss of income during his stay inthehospitaletc.	44,000/-
5	Loss of pleasure and amenities	1,00,000/-
6.	Loss of futuremedicalexpenses	75,000/-
7	Loss of marriage prospects	1,00,000/-
	Total	14,65,875/-
Less:	Compensation awarded by the	7,66,475/-
Tribu	nal
Enha	nced compensation	6,99,400/-

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The Tribunal has awarded interest at the

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rate of 6% per annum. But looking at the nature of the injuries i.e., amputation of leg suffered by the claimant who is a young boy, we find that the interest at the rate of 8% per annum would meet the ends of justice. Accordingly, we hold that the claimant is entitled for an enhanced compensation of Rs.6,99,400/- with interest at 8% per annum from the date of petition till the date of payment of entire amount.

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The liability to pay the compensation is not disputed by the respondent Nos.1 and 2. Therefore, respondent No.2 insurance company is directed to deposit the compensation amount within eight weeks from the date of receipt of a copy of this order.

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Though the claimant is a young boy, we find that it is not safe to release the entire amount in his favour. Therefore, out of the total compensation amount payable to the claimant, we direct that 80% of the enhanced compensation shall be kept in Fixed Deposit for a period of five years and the remaining amount shall be released in favour of the claimant.

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Sd/JUDGE

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Naa

Maruti S/O Popat Hipparkar v. Sampat S/O Babu Bhondave

Case brief

What is this about?

What did the court decide?

Maruti S/O Popat Hipparkar v. Sampat S/O Babu Bhondave

Case brief

What is this about?

What did the court decide?

What the court decided

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