Partly allowed

Sri Devaraju v. the New India Assurance Co. Ltd.

Karnataka HC10 Sept 2020MFA/6309/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed this appeal for enhancement of compensation in a motor accident case. Redetermining the income and disability implications based on the principle that disability percentage does not automatically equate to loss of earning capacity, the Court increased the award from Rs.18,05,310 to Rs.27,65,110.

What did the court decide?

Enhanced compensation awarded to the appellant. 75% of the enhanced amount to be kept in fixed deposit for 10 years; balance released immediately.

Sri Devaraju Vs the New India Assurance Co. Ltd. — Motor Accident Claims | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

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DATED THIS THE 10^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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MISCELLANEOUS FIRST APPEAL NO.6309 OF 2016 (MV-I)

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BETWEEN:

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SRI. DEVARAJU S/O LAKSHMAIAH, AGED ABOUT 34 YEARS, RESIDENT OF BEGIHALLI VILLAGE, JIGANI HOBLI, ANEKAL TALUK, BANGALORE DISTRICT. PIN-562 106. ... APPELLANT

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(BY SRI. R.LAKSHMANA, ADVOCATE) (THROUGH VC)

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AND:

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THE NEW INDIA ASSURANCE CO. LTD, BY ITS MANAGER, UNITY BUILDING ANNEXE, NO.2/B, MISSION ROAD, BANGALORE-560027.

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KUMAR.K. S/O G.GOPAL, NO.3, OLD KISSAN STREET, DODDAMAVALLI, BANGALORE-560004. ... RESPONDENTS

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(BY SRI. O.MAHESH, ADVOCATE FOR RESPONDENT NO.1; (THROUGH VC); VIDE ORDER DATED 24.10.2017 NOTICE TO RESPONDENT NO.2 IS DISPENSED WITH)

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THIS APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 05.08.2015 PASSED IN MVC. NO.408/2014 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND XXXIV ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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Though this appeal is listed for admission,

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with the consent of learned counsel on both sides, it is heard finally.

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The injured claimant has filed this appeal seeking enhancement of compensation by assailing the judgment and award passed in MVC No.408/2014 dated 05.08.2015 by the IX Additional Small Causes Judge and XXXIV ACMM, Court of Small Causes, Member, Motor Accident Claims

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Tribunal-7, Bengaluru (hereinafter referred to as the ‘Tribunal’ for brevity).

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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 brief facts leading to filing of this appeal are that on 05.11.2013 at about 7.30 a.m., petitioner was proceeding on his Hero Honda Passion motorcycle bearing registration No.KA-51S-8933 along with Kumar as a pillion rider near Ragihalli Gate, on the left side of the road. At that time, driver of the lorry bearing registration No. KA19-5312 drove it in a rash and negligent manner, took right turn, without any signal and dashed against the motorcycle of the petitioner. Due to the accident, petitioner fell down and sustained the following injuries:

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Fractures of Right Maxilla; right Ptenygoid plates; Right Zygoma; Hard plate, Nasal bone, left transverse process of T1 Vertebra left side; right ethmoid, left

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patellar fracture and Subarachnoid hemorrhage, left tracheal plexus injury, Bilateral Basifrontal contusion and other injuries all over the body.

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Immediately, he was shifted to Apollo

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Hospital, where he underwent several surgeries. Despite treatment, petitioner sustained permanent disability and loss of earning capacity. Hence, he filed the claim petition under Section 166 of the M.V. Act, seeking compensation of Rs.35,00,000/from the owner and insurer of the offending lorry.

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In response to the notice issued by the Tribunal, respondent No.2-owner of lorry did not appear before the Tribunal and was placed exparte .

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Respondent No.1-insurer, however, entered appearance and filed its written statement. It admitted issuance of policy, but contended that accident was due to negligence on the part of petitioner. It further contended that the lorry driver was not holding a valid and effective driving licence

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on the date of the accident and also violation of statutory provisions under Section 158(6) of the Motor Vehicles Act, 1988. It further contended that owner i.e., respondent No.2 permitted the lorry to be driven in a public place without valid R.C., permit and fitness certificate. It also contended that the amount claimed was highly excessive, sought for dismissal of the claim petition against the insurer.

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On the basis of the above pleadings,

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following issues were framed by the Tribunal:

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i) Whether the petitioner proves that the accident occurred due to rash and negligent driving of the lorry bearing Reg.No.KA-19-5312 by its driver and in the said accident, he sustained injuries?

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ii) Whether the petitioner is 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 his case, petitioner

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examined himself as P.W.1 and one more witness as P.W.2. Eighteen documents were marked as Exs.P.1 to P.18. Respondents did not adduce any evidence.

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The Tribunal answered issue No.1 in affirmative, issue No.2 partly in affirmative and answered issue No. 3 as per final award granting total compensation of Rs.18,05,310/- payable by respondent No.1 along with interest at the rate of 6% per annum.

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We have heard learned counsel

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Sri.R.Lakshmana, for appellant and Sri. O.Mahesh, learned counsel for respondent No.1 through Video conference.

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Learned counsel for petitioner submitted

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that the accident occurred on 05.11.2013. As on that day petitioner was aged 32 years, working as a

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car driver for Mr. P. Vinay Kumar, Bengaluru. At that time his total salary was Rs.19,750/- per month. He submitted that due to the accident, petitioner sustained permanent physical disability assessed at 24% as facial disability, and 90% to the left upper limb. However, the Tribunal considered the same at 65% only, even though petitioner is not able to drive the car. It was also contended that monthly income considered by the Tribunal at Rs.6,000/- is on the lower side. Even the award under other heads such as, pain and suffering, loss of amenities, future medical expenses, loss of income during laid up period etc., also requires to be enhanced.

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On the other hand, respondent insurer opposed the claim petition and submitted that the compensation awarded by the Tribunal was just and proper and did not call for any further enhancement.

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11. Since the insurer has not challenged the

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award and as the claimant is seeking only for enhancement of compensation, occurrence of the accident and petitioner sustaining permanent disability due to the injury sustained in the accident are not in dispute. However, dispute is with regard to the income of petitioner and extent of disability.

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On hearing learned counsel for the

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respective parties and on perusal of material on record, following points would arise for our consideration:

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i) Whether petitioner is entitled for enhancement of compensation?

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ii) What order?

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In this case, accident occurred on

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05.11.2013. As per Ex.P.12-driving licence of the petitioner his date of birth is 10.06.1982. Therefore, the Tribunal has rightly determined age of the

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petitioner as 32 years as on the date of accident. The multiplier applicable is ‘16’. Admittedly, petitioner was working as a car driver in Bengaluru and possessing licence to drive a light motor vehicle (LMV). Even a coolie would be earning Rs.8,000/per month during 2013. Hence, it would be safe to consider the monthly income of petitioner at Rs.12,000/-.

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Petitioner has taken treatment at Apollo

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Hospital, Benglauru, where he underwent several surgeries and he underwent operation wherein ORIF of Right Maxilla and Zygoma fracture were done and facial nerve was repaired. ORIF with TBW of left patella was done on 11.11.2013. Since he developed upper limb hemiplegia due to loss of sensation in left upper limb, he was readmitted, wherein nerve Transfer Spinal Accus to Suprascapular Nerve-2 Intercoastal to Musculo

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Cutaneous Nerve was done. (under General

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Anesthesia).

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Petitioner has also examined Registrar, Emergency Department of the hospital as PW.2. Through the said witness, petitioner got marked Case Summary-Ex.P.15, inpatient records-Ex.P.16, X-ray film with CD and reports-Ex.P.17 and C.T.

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Scan report-Ex.P.18. PW.2 has stated that petitioner was examined on 29.04.2015. It was found that he was having right eye ectropian, partially recovered facial nerve palsy, palatal fistula

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and left pan brachial plexus injury not recovered and he was having permanent physical disability. On assessment of the disability as per DGHS-WHOAIIMS, petitioner suffered total facial disability of 24% and left upper limb disability of 90%.

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In order to assess the loss of future earnings due to functional disability, it is worth to refer to a decision reported in the case of Raj

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Kumar vs. Ajay Kumar [(2011) 1 SCC 343],

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wherein it has been held by the Hon’ble Supreme Court 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

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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 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

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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 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

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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

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capacity of the 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

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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

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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 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

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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

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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.

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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

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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 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

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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 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

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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

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assessed the extent of 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

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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 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 said principles to this case,

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as per the evidence of PW.2, disability suffered by petitioner is permanent. The injury suffered in the accident has affected vision of his right eye and also

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facial disability. Petitioner has stated that he has to continuously wear an arm pouch to his left hand and he cannot stretch his hand. Thus, petitioner cannot be expected to continue his avocation as a driver. However, petitioner would be able to do some other less demanding work. The Tribunal has considered functional disability of petitioner at 65%. The same in our considered view is adequate and does not call for enhancement. Thus, the total future loss of income would be as follows: Rs.12,000/- x 65% x 12 x 16 = Rs.14,97,600/-. The same is awarded to the petitioner towards loss of future income instead of Rs.7,48,800/-, awarded by the Tribunal.

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In this case, petitioner has suffered about seven fractures and other injuries for which he has taken prolonged treatment. The Tribunal has awarded a sum of Rs.1,00,000/- towards ‘pain and suffering’ without detailed discussion. Considering

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the number of fractures which are grievous in nature, the award towards ‘pain and suffering’ is enhanced from Rs.1,00,000/- to Rs.1,50,000/-.

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The Tribunal has taken into account the entire medical records and bills towards medical expenses to award sum of Rs.7,75,510/-. As none of the medical bills were left out, we do not find any reason to enhance the compensation under this head. As per the evidence of petitioner and PW.2, he was an inpatient for 20 days, the Tribunal has awarded a sum of Rs.5,000/- towards conveyance, Rs.5,000/- towards attendant charges and Rs.10,000/- towards diet etc., same is justified and does not call for enhancement. Considering the nature of injuries suffered and implants inserted, the Tribunal has awarded a sum of Rs.1,00,000/- towards future medical expenses. Since the same is awarded with

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reference to Ex.P.8-an estimation letter, same is justified and does not call for enhancement.

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The Tribunal has awarded a sum of Rs.36,000/- towards loss of income during laid up period at the rate of Rs.6,000/- per month for six months. Since petitioner’s monthly income is redetermined at Rs.12,000/-, the award towards loss of income during laid up period requires to be

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enhanced to Rs.72,000/-. The Tribunal has awarded a meager sum of Rs.25,000/- towards loss of amenities, even though the claimant has suffered permanent disability to his eye sight and also left hand at the young age of 32 years. Considering the nature and extent of disability and young age of the petitioner and applying principles in Rajkumar Vs. Ajaykumar (Supra) compensation towards ‘loss of amenities’, is enhanced to Rs.1,50,000/-. Thus, point No.1 is answered in the affirmative, petitioner

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is held entitled for re-determined compensation of

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Rs.27,65,110/- under following heads:

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Sl. No.	Particulars	Amount [in Rs.]
1	Loss of future income	Rs.14,97,600
2	Pain and suffering	Rs.1,50,000
3	Medical expenses	Rs.7,75,510
4	Conveyance, attendant charges and diet	Rs.20,000
5	Future medical expenses	Rs.1,00,000
6	Loss of income during laid up period	Rs.72,000
7	Loss of amenities	Rs.1,50,000
	TOTAL	Rs.27,65,110

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Point No.2 is answered accordingly.

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In the result, Appeal is allowed in part as

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the compensation on various heads have been reassessed and that appellant is now entitled to compensation of Rs.27,65,110/- (Rupees Twenty

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Seven Lakhs Sixty Five Thousand One Hundred and Ten only) instead of Rs.18,05,310/- awarded by the Tribunal. Said compensation, excluding an amount of Rs.1,00,000/- (Rupees One Lakh only) payable towards future medical expenses, shall carry interest at the rate of 6% per annum from the date of claim petition till realization. We find that the Tribunal has permitted 75% of the compensation amount with interest to be released to the claimant and only 35% of the amount shall be kept in fixed deposit in any Nationalized Bank for a period of three years only.

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In the circumstances, we now order that 75% of the enhanced compensation shall be kept in fixed deposit in any Nationalized Bank or Post Office for an initial period of 10 years. Balance compensation shall be released to appellant after due identification.

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Respondent–insurer shall deposit the balance compensation within a period of four weeks from the date of receipt of a certified copy of this judgment.

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Parties to bear their respective costs.

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Sd/JUDGE

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Sd/JUDGE

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sma/BVK

Sri Devaraju v. the New India Assurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Sri Devaraju v. the New India Assurance Co. Ltd.

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

Parties & counsel

Coram

Case details

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