Partly allowed

Sri.Kumaravelu v. Sri.T.G.Chandrashekar

Karnataka HC14 Sept 2020MFA/4974/2014

Case brief

AI extract

What is this about?

High Court enhanced compensation for two student appellants injured in a road accident. It rejected the appeal against the 2012 award but increased amounts for loss of future earnings, pain, and amenities based on age, disability, and multiplier principles, totaling over 44 lakh rupees.

What did the court decide?

Enhanced compensation awarded: Rs.29,55,378/- to Anjinappa; Rs.14,58,585/- to Kumaravelu, with 6% interest except on future medical expenses.

Sri.Kumaravelu Vs Sri.T.G.Chandrashekar — Medical Negligence | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 14^TH DAY OF SEPTEMBER, 2020

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PRESENT

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THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR. JUSTICE RAVI V.HOSMANI

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M.F.A. No.4972/2014 (MV-I)

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C/W M.F.A. No.4974/2014

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IN M.F.A. No.4972 /2014 (MV-I)

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BETWEEN :

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SRI. ANJINAPPA AGED ABOUT 21 YEARS S/O CHINNAVENKATARAYAPPA R/AT NO.80-2, JAKKUR LAYOUT, JAKKUR, BANGALORE -560 064 … APPELLANT

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(BY SRI GURUDEVA PRASAD K.T., ADVOCATE) (THROUGH VIDEO CONFERENCE)

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AND:

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SRI. T.G. CHANDRASHEKAR, S/O BASAVARAJU, MAJOR, RESIDING AT NO.5, DISPENSARY ROAD, A.V. ROAD, KALASIPALYAM BANGALORE – 560 002.

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M/S. ICICI LOMBARD GENERAL INSURANCE CO. LTD, NO. 89, 2^ND FLOOR, SCR COMPLEX MADIVALA, HOSUR ROAD BANGALORE – 560 038 BY ITS DIVISIONAL MANAGER ... RESPONDENTS

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(BY SRI B. PRADEEP., ADVOCATE FOR R2 V/O DATED 16.01.2017, NOTICE TO R1 IS D/W) (THROUGH VIDEO CONFERENCE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.01.2014 PASSED IN MVC NO. 5098/2012 ON THE FILE OF THE XI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLWOING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A. No.4974/2014 BETWEEN:

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SRI. KUMARAVELU AGED ABOUT 21 YEARS S/O MUNISWAMY R/AT NO.5, KATTIGENAHALLI, BAGALUR MAIN ROAD, IAF POST, BANGALORE NORTH TALUK BANGALORE – 560 064 ... APPELLANT

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(BY SRI GURUDEVA PRASAD K.T., ADVOCATE) (THROUGH VIDEO CONFERENCE)

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AND:

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SRI. T.G. CHANDRASHEKAR, S/O BASAVARAJU, MAJOR, RESIDING AT NO.5, DISPENSARY ROAD, A.V. ROAD, KALASIPALYAM BANGALORE – 560 002.

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M/S. ICICI LOMBARD GENERAL INSURANCE CO. LTD, NO. 89, 2^ND FLOOR, SCR COMPLEX MADIVALA, HOSUR ROAD BANGALORE – 560 038 BY ITS DIVISIONAL MANAGER ... RESPONDENTS (BY SRI B. PRADEEP., ADVOCATE FOR R2, R1- SERVED & UNREPRESENTED) (THROUGH VIDEO CONFERENCE)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGEMENT AND AWARD DATED 04.01.2014 PASSED IN MVC NO. 5102/2012 ON THE FILE OF THE XI ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR

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COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS ARE COMING ON FOR ADMISSION THIS DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.

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These appeals arise out of the common judgment and award dated 04/01/2014, passed by the Court of Small Causes, Bengaluru City and Motor Accident Claims Tribunal, (hereinafter referred to as “the Tribunal” for brevity) (SCCH-12). MFA.No.4972/2014 is filed by Anjinappa - claimant in MVC.No.5098/2012; while MFA.No.4974/2014 is filed by M Kumaravelu - claimant in MVC.No.5102/2012, wherein they are seeking for enhancement of compensation.

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For the sake of convenience, parties shall be referred to in terms of their status before the Tribunal.

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The facts in brief are that on 02.01.2012 at about 10.30 p.m. petitioners in both the appeals, who were students of Govt. P.U.College, Jakkur, Bangalore, along with other students and lecturers went on an

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Educational tour by bus bearing registration No.KA-01-D4422. At about 10.30 p.m. when the bus reached Dasakoppa Circle, Anandapura, Sagara Taluk, the driver of the bus drove it in a rash and negligent manner, lost control and dashed against an electric pole. The bus turned turtle, as a result of which, petitioners’ sustained grievous injuries. Immediately they were shifted to Mc.Gann, Hospital, Shivamogga. Thereafter, they were shifted to Kasturba hospital, Manipal for further treatment. They were inpatients from 05.01.2012 to 09.01.2012.

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Petitioner in MVC No.5098/2012 (In MFA No.4972/2014) sustained the following injuries:

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i) Left hand crush injury, deformity, loss of fingers, bleeding and deformity left wrist and left hand amputation below elbow.

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ii) Auto amputation of left lower limb above the left knee muscles, vessels exposed bleeding.

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iii) Left arm abrasion.

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From 10.01.2012 to 06.02.2012, petitioner took treatment at Victoria hospital Bangalore, where his left hand was amputated. According, to the petitioner, due to the injuries suffered in the accident, he sustained disability to an extent of 98%. Hence, he filed the claim petition

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under Section 166 of the M.V. Act, claiming compensation of Rs.50,00,000/-.

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Petitioner in MVC No.5102/2012 (In MFA

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No.4974/2014) sustained following injuries:

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i) Abrasion on the cheek.

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ii) Left hand, left forearm, left arm completely crushed, muscles, vessels exposed, bleeding plus left hand hanging.

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iii) Tenderness on the chest.

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Thereafter he was also shifted to Victoria hospital Bangalore, on 10.01.2012. He was an inpatient upto 19.01.2012, during which his left hand above elbow was amputated. According to petitioner, due to the same, he suffered whole body disability of 50%. Hence, he filed the claim petition under Section 166 of the M.V. Act claiming compensation of Rs.20,00,000/-.

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On service of notice, respondent No.1-owner of the bus did not contest the petition and remained exparte . But, respondent No.2 – insurer, entered appearance and filed objections denying the petition averments. It admitted issuance of policy, but its liability was subject to the terms and conditions of the policy. It was further contended that the bus driver did not possess valid and effective driving licence at the time of accident and that

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the petitions were bad for non-compliance of Sections 134(c) and 158(6) of M.V. Act. It was contended that compensation claimed was excessive. Even the age, occupation and income of the petitioners was denied. Thus, respondent No.2 sought for dismissal of the petitions.

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On the basis of the rival pleadings, the Tribunal

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framed the following issues:

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i) Does the petitioners in all the cases prove that they have sustained grievous injuries in an accident arising out of rash or negligent driving of the driver of the Bus bearing No.KA-01-D4422 on 04-01-2012 at about 10.30 p.m. as alleged??

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ii) Whether the petitioners are entitled for compensation? If so, how much and from whom?

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iii) What Order or award?

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In support of their case, petitioners got

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examined themselves as PW-1 and PW-3 respectively. They also examined Dr. H. Manjunatha in each case as PW-6 & 7. Exhibits P.1 to P.50 were marked. Respondent No.2 –insurer did not lead any evidence.

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The Tribunal answered issue Nos.1 & 2 partly

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in the affirmative and issue No.3 as per final order and

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awarded compensation of Rs.6,84,000/in MVC No.5098/2012 and Rs.4,93,585/- in MVC No.5102/2012 along with interest at the rate of 6% per annum respectively. The Tribunal held respondents No.1 and 2 jointly and severally liable to pay the compensation.

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Respondents have not challenged the award, however, the petitioners are seeking for enhancement of compensation.

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We have heard Sri. Gurudev Prasad K.T, learned counsel for appellants and Sri. B. Pradeep, learned counsel for respondent No.2, through video conference.

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Learned counsel for appellant firstly submitted, though the injured petitioner was aged about 19 years on the date of accident, studying in PUC-II and earning a sum of Rs.6,000/- per month by conducting tuitions, the Tribunal has assessed income of the petitioner on notional basis at Rs.30,000/- per annum by referring to the decision of the Hon‘ble Supreme Court in the case of Kishan Gopal and another Vs. Lala & others, reported in 2014(1) SCC 244. However, the victim boy in Kishan Gopal’s case was aged about 10 years, which is not the legally permissible age for employment, unlike in this case.

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It was further contended that though, petitioner suffered amputation of left leg above the knee and also left hand below elbow, and he has been rendered without two limbs, that too at a young age, the Tribunal has considered loss of earning capacity at 75% and awarded a meager compensation. It was further submitted that even the multiplier applied was ‘ 15’ instead of the correct multiplier of ‘ 18’. It was also submitted that the award under other heads viz., ‘pain and suffering’, ‘future medical expenses’, ‘attendant and incidental charges’, ‘loss of amenities’, ‘marriage prospects’ etc., also require to be enhanced.

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In MFA No.4974/2014, learned counsel for appellant submitted that petitioner was aged about 19 years, studying in PUC-II and earning monthly income of Rs.6,000/- by conducting tuitions. Hence, assessment by the Tribunal based on notional income was unjustified. It was also contended that petitioner suffered amputation of his left hand. However, the Tribunal has considered loss of earning capacity at 50%, which requires enhancement. It was also submitted that the award under other heads viz., ‘pain and suffering’, ‘future medical expenses’, ‘attendant and incidental charges’, ‘amenities’, ‘marriage prospects’ etc., also requires to be enhanced.

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On the other hand, learned counsel for the insurer submitted that the Tribunal was justified in assessing the compensation based on notional income, as petitioners in both the appeals failed to lead specific evidence to prove their monthly income. It was submitted that on an over all consideration, compensation awarded was just and proper and did not call for enhancement.

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In these cases the Tribunal has already held that the accident occurred on 04.01.2012 involving bus bearing No.KA-01–D/4422, in which petitioners viz., Anjinappa and M Kumaravelu sustained grievous injuries which was due to rash and negligent driving of the bus and that the bus was duly insured with respondent No.2 and therefore, respondents were jointly and severally liable to pay compensation to the petitioners. The award of the Tribunal is not challenged by the owner or insurer. Petitioners are seeking for enhancement. Thus, the only point that arises for consideration in these appeals is:

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“ Whether petitioners in both the appeals are entitled for enhancement of compensation?”

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IN MFA.NO.4972/2014:

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In this appeal, petitioner was aged about 17 years and studying in PUC-I on the date of the accident i.e., 04.01.2012. Though, petitioner contended that their monthly income was Rs.6,000/-, there is absolutely no evidence to support the same. At the same time, consideration of their income on notional basis by referring to Kishan Gopal’s case would also not be justified, as the victim in that case was a 10 year old boy, who had not yet attained permissible age for employment and earning; whereas, petitioner in this case was aged about 17 years on the date of the accident. During 2012, even an ordinary coolie would have earned Rs.7,000/- per month, but as the petitioner was studying in PUC-I, his earning cannot be equated to that of a coolie. In our considered view, it would be appropriate to consider petitioner’s monthly income at Rs.10,000/-.

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In this case, the petitioner had suffered permanent disability due to amputation of two of his limbs. The Hon’ble Supreme Court has laid down the parameters for assessing loss of earning caused due to permanent disability, in the case of Raj Kumar vs. Ajay Kumar

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reported in [(2011) 1 SCC 343], wherein, it has been held as under:-

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“8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person’s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person’s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal

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Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Disabilities Act”, for short). But, if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.

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The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with

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reference to the whole body cannot obviously exceed 100%.

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Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.

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What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the

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injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd .)

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Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:

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(i) whether the disablement is permanent or temporary;

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(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;

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(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.

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If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.

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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 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

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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.

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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 per cent, 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 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

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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.

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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 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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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

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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, Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons , prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorised 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.

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If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple nonmedical 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

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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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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

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disability of claimant, is tendered for crossexamination 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 claimant to such Medical Board for assessment of the disability.

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We may now summarise the principles discussed above:

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(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).

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(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

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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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Applying the above principles to this case, it is seen that due to amputation of two of his limbs, disability caused to the petitioner is permanent in nature. Though, Dr. H Manjunatha, who treated the injured-petitioner assessed the physical disability to an extent of 65% to left upper limb and 80% to left lower limb and 98% to whole body. It is seen that amputation of the limbs is on the left side, which makes it difficult for the petitioner to walk, stand and balance himself. In fact, loss of two limbs at such a young age of 18 years would definitely cause functional disability to an extent of 100%.

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As per the decision of the Hon’ble Supreme Court in Sarla Varma & Others Vs. Delhi Transport Corporation and another , reported in ( 2009) 6 SCC 121 , the proper multiplier corresponding to age of

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petitioner is ‘17’ as per Ex.P.28, would be ‘ 18’. As the petitioner was only 18 years of age at the time of the accident and was studying PUC-II and the accident accrued in January 2012, we think it is justified to assess Rs.10,000/- per month as the notionally monthly income of the petitioner by keeping in view his future prospects as well as uncertainties of life. Thus, total loss of future earnings would be Rs.10,000/- X 100% X 12 X 18 = Rs.21,60,000/ -, which is awarded to the petitioner instead of Rs.3,37,500/- awarded by Tribunal.

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In this case, petitioner sustained several grievous injuries as mentioned above. There is also amputation of two limbs. Considering the same, it can be assumed that petitioner has endured lot of pain and suffering. Hence, we are inclined to award a sum of Rs.2,00,000/- towards ‘pain and suffering’ instead of Rs.1,00,000/- awarded by the Tribunal.

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The Tribunal has awarded a sum of Rs.10,000/towards ‘loss of income during laid up period’ for four months. Since, we have assessed loss of earning capacity of the petitioner at 100%, no award can be made under this head separately.

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The Tribunal has awarded a sum of Rs.70,000/towards ‘loss of amenities’. While assessing compensation under this head, it is necessary to refer to the observations made in Raj Kumar’s case (supra) , that if the victim of the accident suffers any disability, then effort should be made to award compensation not only for injuries, but also for the loss which has suffered as a result of such injury and victims ability to lead normal life and enjoy the activities which he would have enjoyed like a common man. Petitioner has not only lost his left leg, but also his left hand is permanently confined to crutches for movement at a young age. Under these circumstances, we award a sum of Rs.3,50,000/- towards ‘loss of amenities’.

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Though enhancement is sought under the head of ‘medical expenses’, it is seen that petitioner has taken treatment in three hospitals, two of which are government hospitals. The Tribunal after verifying the medical bills produced by the petitioner, has awarded a sum of Rs.55,378/- as full imbursement thereof. We do not see any grounds for enhancement.

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Petitioner has led evidence to show that he has taken treatment in three different hospitals for about 32 days as inpatient. Considering the expenses that may have been incurred towards ‘attendant’s charges’, ‘food and extra nourishment’, and ‘conveyance charges’ etc., we are inclined to award a sum of Rs.40,000/- under the head of “incidental charges”.

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Taking note of the requirement of prosthetics, the Tribunal has awarded a sum of Rs.50,000/- towards ‘future medical expenses’ and same appears to be adequate and does not call for any enhancement.

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Considering the effect of amputation of two limbs upon the marriage prospects of petitioner, we feel that Rs.25,000 awarded by the Tribunal is too meager and the same is enhanced to Rs.1,00,000/-.

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Thus, petitioner in MVC No.5098/2012 is entitled to total compensation of Rs.29,55,378/- with interest at 6% per annum from the date of petition till realization under the following heads:-

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			Rs. Ps.
Pain and suffering	-		2,00,000-00
Medical expenses	-		55,378-00
Incidental expenses	-		40,000-00
Future medical expenses	-		50,000-00
Loss of future earning capacity	-		21,60,000-00
Loss of marriage prospects	-		1,00,000-00
Loss of amenities in life	-		3,50,000-00
Total	-	Rs.	29,55,378-00

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IN MFA. NO.4974/2014:

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In this case, petitioner has suffered permanent disability due to amputation of his left hand. Referring to the parameters for assessing loss of earning caused due to permanent disability, laid down in of Raj Kumar’s case (supra) , it is seen that the disability caused to the petitioner is permanent in nature. P.W.7-Dr. H Manjunatha assessed physical disability to an extent of 80% to the left upper limb. The Tribunal has considered the same at 50% to the whole body and determined compensation. Considering that the amputation of left upper limb is above elbow, the assessment of functional disability and loss of earning capacity to an extent of 50% by the Tribunal appears to be just and proper and is affirmed.

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The petitioner was aged about 19 years at the time of accident, the proper multiplier applicable would be

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‘ 18’ as per Sarla Varma’s case (supra).

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Considering the fact that petitioner in this case is also a student, studying in PUC-II, similar to that of the petitioner in MFA No.4972/2014, his monthly income is also assessed at Rs.10,000/-. Thus, total loss of future earnings would be Rs.10,000/- X 50% X 12 X 18 = Rs.10,80,000/ -, which is awarded to the petitioner instead of Rs.2,70,000/- awarded by Tribunal.

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In this case, petitioner sustained several grievous injuries as mentioned above. There is also amputation of left upper limb. Considering the same, it can be assumed that petitioner endured lot of pain and suffering. Hence, we are inclined to award a sum of Rs.1,00,000/- towards ‘pain and suffering’ instead of Rs.70,000/- awarded by the Tribunal.

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The Tribunal has awarded a sum of Rs.50,000/towards ‘loss of amenities’. Applying the principles laid down in Rajkumar’s case (supra), we award a sum of Rs.1,50,000/- towards ‘loss of amenities’ .

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Though enhancement is sought under the head of ‘medical expenses’, it is seen that petitioner took treatment in three hospitals, two of which are government hospitals. The Tribunal after verifying medical bills produced by the petitioner, awarded a sum of Rs.28,585/- as full imbursement thereof. We do not see any grounds for enhancement.

¶145

Considering the expenses that may have been incurred towards attendant’s charges, food and extra nourishment, conveyance charges etc., the Tribunal has awarded a sum of Rs.25,000/- towards ‘incidental charges’, we do not see any justification to enhance the same.

¶146

Taking note of the requirement of prosthetics, the Tribunal has awarded a sum of Rs.25,000/- towards ’future medical expenses’ and the same appears to be adequate and does not call for any enhancement.

¶147

Considering the effect of amputation of upper limb upon ‘marriage prospects’ of petitioner, we feel that Rs.25,000/- awarded by the Tribunal is meager and the same is enhanced to Rs.50,000/-.

¶148

-: 28 :-

¶149

Thus, petitioner is entitled to total compensation of Rs.14,58,585/- with interest at 6% per annum from the date of petition till realization under the following heads:-

¶150

		Rs. Ps.
Pain and suffering	-	1,00,000-00
Medical expenses	-	28,585-00
Incidental expenses	-	25,000-00
Future medical expenses	-	25,000-00
Loss of future earning capacity	-	10,80,000-00
Loss of marriage prospects	-	50,000-00
Loss of amenities in life	-	1,50,000-00
Total	-	Rs.14,58,585-00

¶151

For the foregoing reasons, point for

¶152

consideration is answered in favour of the petitioners and appellant (petitioner) in MFA No.4972/2014 is entitled to enhanced compensation of Rs.29,55,378/- and the appellant (petitioner) in MFA No.4974/2014 is entitled to enhanced compensation of Rs.14,58,585/- respectively with interest at 6% per annum from the date of petitions till the date of realization.

¶153

However, petitioners in the above cases would not be entitled to any interest on the award towards ‘ future medical expenses ’.

¶154

-: 29 :-

¶155

Out of the total compensation re-assessed in

¶156

these appeals 75% of the said compensation shall be deposited in any Post Office or Nationalized bank for an initial period of ten years. The petitioners are also entitled to draw the periodical interest on the deposits made. Petitioners shall be entitled to receive the balance compensation after due identification.

¶157

The respondent/insurance company shall deposit the re-assessed compensation after excluding the amount deposited with upto date interest within a period of four weeks from the date of receipt of a copy of this judgment.

¶158

Parties to bear their respective costs.

¶159

The registry to transmit the records to the concerned

Tribunal forthwith.

Sd/JUDGE

Sd/-

JUDGE