Partly allowed

N Sreenivasa Rao S/O. Nagayya v. B T Philip S/O. Babu

Karnataka HC26 Aug 2019MFA/21313/2012

Case brief

AI extract

What is this about?

This court allowed a miscellaneous first appeal for enhancement of compensation in a motor accident case. The court modified the Tribunal's award, increasing loss of earning capacity to 90%, adding compensation for loss of amenities due to amputation, and enhanced conveyance charges, totaling Rs.9,25,400/-.

What did the court decide?

Compensation reassessed to Rs.9,25,400/- with 6% interest; insurer directed to deposit amount and retain 40% as per Tribunal order.

N Sreenivasa Rao S/O. Nagayya Vs B T Philip S/O. Babu — Medical Negligence | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 26^th DAY OF AUGUST 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MISCELLANEOUS FIRST APPEAL NO.21313 of 2012 (MV)

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BETWEEN:

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N SREENIVASA RAO S/O. NAGAYYA AGE: 47 YEARS, OCC: AGRICULTURE, R/O. NEAR SREENIVAS NAGAR, CHECK POST, HAVAMBHAVI, BELLARY. (By Sri. M.AMAREGOUDA, ADVOCATE)

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... APPELLANT

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AND:

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B.T. PHILIP S/O. BABU AGE: 23 YEARS, R/O. LIG 90, K.H.B. COLONY, OPP. VASAVI SCHOOL, BELLARY.

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P. LAKSHAMANA S/O. LAKSHMAMMA AGE: 38 YEARS, OCC: OWNER OF MOTORCYCLE BEARING REG. NO.KA-28/J-0305 R/O. KOLAGAL ROAD, SATHYAVANI NAGAR, BELLARY.

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M/S. NEW INDIA ASSURANCE CO. LTD., BY ITS BRANCH MANAGER, IST FLOOR, EDIGA HOSTEL COMPLEX, DOUBLE ROAD, BELLARY.

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... RESPONDENTS

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(By Sri. S.V. YAJI, ADV. FOR RESPONDENT NO.3.

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NOTICE TO R1 & R2 DISPENSED WITH VIDE ORDER DATED 08.03.2019)

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THIS MFA FILED IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DTD:26.07.2011 PASSED IN MVC.NO.698/2009 ON THE FILE OF THE 5TH MOTOR ACCIDENT CLAIMS TRIBUNAL AT BELLARY, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though this appeal came up for admission, with the consent of learned counsel appearing for both the parties, it is heard finally.

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This appeal is filed by the claimant for enhancement of compensation assailing the judgment and award dated 26^th July 2011 passed by the 5^th Motor Accident Claims Tribunal, Bellary (hereinafter referred to as the ‘Tribunal’, for short), in MVC No.698 of 2009.

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Heard the arguments of the learned counsel

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for the appellant as well as the respondent-insurer.

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Ranking of the parties before the Tribunal is

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retained for the purpose of convenience.

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The appellant-claimant filed a petition under

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Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’, for short) claiming compensation of Rs.11,00,000/- inter alia contending that on 30.10.2018 at about 7.30 am near V.T. Camp, Siruguppa road, Bellary, when he was proceeding on his motorcycle bearing registration No.KA-34/S-3263, at that time, the first respondent being the rider of the motor cycle bearing registration No.KA-28/J-0305 came in a rash and negligent manner with high speed and dashed to his motor cycle due to which he fell down and sustained severe nature of crush injury to his left leg and injuries over his right leg. He was shifted to VIMS Hospital, Bellary, for treatment. Thereafter, he was shifted to Yashoda Hospital, Secunderabad, Andhra Pradesh, wherein he has undergone surgery and his left leg was amputated. He further contended that he has spent huge amount towards medical expenses. He is

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an agriculturist and is earning Rs.1,00,000/- per annum. He has suffered a lot of pain and agony. He being an agriculturist and due to amputation of his leg, is not able to work. Hence, claimed compensation under various heads.

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In pursuance to the notice, first respondentrider of the motor cycle remained absent and was placed exparte. Second and third respondent appeared through their counsel. Second respondent did not chose to file statement of objection. However, 3rd respondentinsurer resisted the claim by filing statement of objections denying rash and negligent riding and the accident in question, the injuries sustained, age and occupation of the claimant, however, admitted issuance of insurance policy for the motorcycle in question and contended that liability, if any, is subject to the terms and conditions of the policy and also taken contention that the petition is bad for non-joinder of necessary parties i.e., the owner and insurer of the motorcycle

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bearing registration No.KA-34/Q-3263. Hence, prayed for dismissal of the claim petition.

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Based on the rival pleadings, the Tribunal framed the following issues:

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“1. Whether the petitioner proves that on 30.10.2008 at about 7.30 am, while riding motor cycle bearing Regn. No.KA-34/S-3264 nearby V.T. Camp on Siruguppa road, the first respondent i.e., rider of the motor cycle bearing Regn. No.KA-28/J0305 came in a rash and negligent manner and hit the petitioner and thereby caused injuries?

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Whether the petitioner is entitled for compensation? If so, for what quantum and from whom?

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3. What order or award?”

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To substantiate his contention, the claimant

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himself examined as PW-1 and also got examined the doctor as PW-2 and got marked 25 documents as per Exs.P-1 to P-25. On the other hand, the respondents have not let-in any evidence except marking endorsement of RTO as Ex.R-1.

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9. After considering the evidence on record, the

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Tribunal answered issue No.1 in the affirmative and allowed the petition in part by awarding compensation of Rs.4,87,000/- on various heads as under:

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Rs.

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1	Towards pain and sufferings	75,000/-
2	Towardsmedicalexpenditure	80,000/-
3	Future loss of income on the ground of disability based on following calculation.
	Notional income of Rs.4000x12x13=6,24,000/- 50% of total amount of Rs.6,24,000 would be	3,12,000/-
4	Conveyance, nourishment and attendant charges etc.	20,000/-
	Total	4,87,000/-

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Assailing the judgment and award passed by the Tribunal, the claimant has filed this appeal for enhancement of compensation.

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The counsel for the appellant contended that

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the Tribunal committed an error in calculating loss of

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earning capacity at 50% even though the doctor has assessed the disability at 60% though the claimant has lost 100% earning capacity as his leg has been amputated. Further, it is contended that though the claimant was earning Rs.1,00,000/- per annum from agriculture, the Tribunal has considered only Rs.4,000/- per month, which is very meager. It is also contended that the Tribunal has not awarded any amount towards loss of amenities even though there is amputation of leg. Therefore, he prayed for enhancement of compensation.

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Per contra, learned counsel for the insurer supported the judgment and award passed by the Tribunal and contended that since the claimant has not produced any document in support of proof of income, the Tribunal has considered Rs.4,000/- per month as notional income of the claimant. As per the doctor, only 60% disability is suffered by the claimant, therefore, in normal course 1/3^rd of the disability will be considered towards the whole body and in case of amputation,

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disability of 50% should be considered as specified under the provisions of the Central Motor Vehicle Rules, 1989 and also under the provisions of Workmen’s Compensation Act. Therefore, learned counsel prayed for dismissal of the appeal.

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Upon hearing the arguments of the learned counsel for both the parties and on perusal of the records, the points that arise for consideration are:

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i. Whether the Tribunal is not justified in awarding Rs.4,87,000/- by considering the disability at 50% without considering the loss of earning capacity at 100%?

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ii. Whether the appellant is entitled for enhancement of compensation?

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iii. What order?

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The claimant has established the factum of

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accident that occurred on 30.10.2008 when he was proceeding on his motorcycle bearing registration No.KA-34/S-3264 and due to rash and negligent riding of motorcycle bearing registration No.KA-28/J-0305 by

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the first respondent, the claimant sustained injury and his left leg has been amputated. There is no dispute with respect to amputation of leg and sustaining of injuries by the claimant. The claimant also examined the doctor as PW-2 and has given evidence that the claimant has suffered 60% disability to the limb due to amputation. The Tribunal considering the evidence of the Doctor and the fact of amputation of claimant’s left leg, considered 50% as the disability to the whole body and also earning capacity at 50%.

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The same is disputed by the learned counsel for the claimant. The counsel for the claimant has relied upon the judgment of this Court in Miscellaneous First Appeal No.23117 of 2011 along with MFA Crob No.817 of 2012 disposed off on 5^th /6^th February 2013, wherein this Court relying on the decision of the Hon’ble Supreme Court in Mohan Soni v. Ram Avtar Tomar (2012-LAWS(SC) 103) has considered 90% as loss of earning capacity where amputation is above knee.

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Same is countered by the counsel for the

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respondent-insurer on the ground that as per PW-2-the doctor, this is a clear case of 60% disability to the limb and there is no infirmity on the part of the Tribunal in considering 50% as loss of earning capacity.

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I have perused the aforesaid judgment

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wherein this Court has relied on the Mohan Soni’s case (supra) wherein it has been stated that where there is amputation of the left leg below the knee, the loss of earning capacity must be 100% and at no case it can be less than 90% and on considering the judgment of the Hon’ble Apex Court, this Court assessed loss of earning capacity at 90%. In the case on hand, the appellantclaimant is said to be an agriculturist. Even if he is considered as an unskilled labour or a coolie, even though the disability to the leg is 60%, taking 1/3^rd of the disability to the whole body or considering 50% of the disability as per the MV Act or WC Act with respect to loss of earning capacity cannot be considered. In the cross-examination, the doctor has clearly stated that

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the claimant is not able to do any work either agricultural or any other work. When such being the case, though the disability may be 60% to a particular limb or 50% to the whole body, loss of earning capacity, at least, should be considered at 90% in view of the judgment of the Hon’ble Apex Court in Mohan Soni’s case (Supra), as the claimant has suffered amputation of his left leg. Therefore, the Tribunal considering 50% as loss of earning capacity is not correct. Therefore, the loss of earning capacity of the claimant is assessed at 90%. As regards the income of the claimant, he has not produced any document. This Court, for the accident of the year 2008, usually considers Rs.4,500/per month as income of an unskilled labour. Therefore, I propose to take Rs.4,500/- as notional income and 90% of Rs.4,500/- comes to Rs.4,050/- and is multiplied by 12 and 14(appropriate multiplier for the age group 41-45 and not 13 as adopted by the Tribunal), it comes to Rs.6,80,400/-. This would be the loss of earning capacity. As regards pain and suffering,

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the Tribunal has awarded Rs.75,000/-. In my view, the

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said sum is sufficient and is retained. Medical expenditure is based upon the medical bills and award of Rs.80,000/- by the Tribunal is sufficient and the same is retained. The Tribunal has awarded a sum of Rs.20,000/- towards conveyance, nourishment and attendant charges etc. The accident is of the year 2008. The claimant sustained crush injury to his leg. He was shifted to VIMS Hospital, Bellary. Thereafter, he was taken to Yashoda Hospital, Sccunderabad, wherein he has undergone surgery and his left leg has been amputated and on account of this, the claimant must have incurred expenses towards transportation. Apart from this, he has spent amount towards food, nourishment and other incidental charges. Therefore, I propose to enhance the award towards conveyance, nourishment and attendant charges to Rs.40,000/from Rs.20,000/- as awarded by the Tribunal. The Tribunal has not awarded any amount towards loss of amenities. Since the claimant has suffered amputation

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of leg, he has to suffer the disability throughout his life by using stretcher.

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Counsel for the respondent-insurer

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submitted that the claimant can walk by using artificial limb and submits that it has come in the evidence of the

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doctor that the claimant can walk with artificial limb. Even if the claimant uses artificial limb, he cannot walk as he did with his natural legs. Therefore, he has to suffer throughout his life with artificial limb and also requires assistance or attendant till his breathe. Therefore, I propose to award a sum of Rs.50,000/towards loss of amenities. Thus, the claimant is entitled to re-assessed compensation as under:

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Rs.

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1	Loss ofearning capacity	6,80,400/-
2	Pain andagony	75,000/-
3	Medicalexpenses	80,000/-
4	Transportation, conveyance, nourishment andincidentalcharges	40,000/-
5	Loss of amenities	50,000/-
	Total	9,25,400/-

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Accordingly, the appeal filed by the appellantclaimant is allowed in part. The judgment and award dated 26^th July 2011 passed by the 5^th Motor Accident Claims Tribunal, Bellary, in MVC No.698 of 2009 is hereby modified. The appellant is entitled for reassessed compensation of Rs.9,25,400/- as against Rs.4,87,000/- awarded by the Tribunal. The appellant is entitled to interest at the rate of 6% per annum from the date of petition till realization. The respondentinsurer is directed to deposit the compensation now awarded within four weeks from the date of receipt of a certified copy of this judgment. Deposit of 60% of the compensation amount and release of 40% as ordered by the Tribunal is undisturbed.

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Sd/JUDGE

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kmv

N Sreenivasa Rao S/O. Nagayya v. B T Philip S/O. Babu

Case brief

What is this about?

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N Sreenivasa Rao S/O. Nagayya v. B T Philip S/O. Babu

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