Partly allowed

Munuf @ Abdul Munaf v. Mercedes Benz India Ltd.

Karnataka HC15 Nov 2022MFA/1434/2018

Case brief

AI extract

What is this about?

The High Court allowed an appeal filed under Section 173(1) of the MV Act against a Motor Accident Claims Tribunal award. The Court enhanced compensation from Rs.4,88,339 to Rs.19,26,189, directing an additional sum of Rs.14,37,850.

What did the court decide?

The judgment and award of the Tribunal are modified to grant total compensation of Rs.19,26,189, comprising an additional Rs.14,37,850 along with 6% annual interest.

Munuf @ Abdul Munaf Vs Mercedes Benz India Ltd. — Motor Accident Claims | Karnataka HC (2022)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 15^TH DAY OF NOVEMBER, 2022

¶4

BEFORE

¶5

THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

¶6

M.F.A.No.1434/2018 (MV-I)

¶7

BETWEEN :

¶8

MUNUF @ ABDUL MUNAF S/O ABDUL MAJEED SAB AGED 48 YEARS, OCC:NIL R/O KURUVINATKATTE VILLAGE NEAR FATHIMA MOSQUE NEAR R T O OFFICE, KONDAJJI ROAD DAVANGERE.

¶9

...APPELLANT

¶10

(BY SMT.SARITHA KULKARNI, ADVOCATE)

¶11

AND:

¶12

MERCEDES BENZ INDIA LTD., No.E-3 MIDC CHAKAN, PHASE III CHAKAN INDUSTRIAL AREA KURULI AND NIGHOJE, TQ. KHED PUNE-410 501(MAHARASTRA STATE)

¶13

THE MANAGER THE UNITED INDIA INSURANCE CO. LTD., No.34/3, MMK COMPLEX AVK COLLEGE ROAD DAVANAGERE - 577 001.

¶14

THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, MMK COMPLEX

¶15

¶16

AVK COLLEGE ROAD DAVANGERE - 577 001.

¶17

…RESPONDENTS

¶18

(BY SRI S V HEGDE MULKHARD, ADVOCATE FOR R2 V/O DTD. 30.9.2021, NOTICE TO R1 D/W)

¶19

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:05.12.2017 PASSED IN MVC No.224/2017 ON THE FILE OF 1ST ADDITIONAL SENIOR CIVIL JUDGE & V ADDITIONAL MACT, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

¶20

THIS M.F.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶21

JUDGMENT

¶22

The appeal is filed by the appellant-claimant challenging the judgment and award dated 05.12.2017 passed in MVC No.224/2017 by the Court of I Addl. Senior Civil Judge and V Addl. MACT, Davangere, seeking enhancement of compensation.

¶23

The brief facts of the case are as under:

¶24

On 28-09.2016 at about 11.00 a.m., the

¶25

appellant-claimant while he was standing by the side of the road, at that time, a mercedes benz car bearing

¶26

¶27

No.MH-14/76-A came in rash and negligent manner dashed against the appellant-claimant and caused the accident. Due to the said accident, the appellantclaimant sustained grievous injuries. Hence, the appellant-claimant filed claim petition under Section 166 of MV Act claiming compensation. The Tribunal after appreciating the evidence on record has granted compensation of Rs.4,88,339/- along with interest at 8% p.a. from the date of petition till the date of realization.

¶28

Learned counsel for the appellant-claimant submitted that the compensation awarded by the Tribunal is on the lower side and seeks to enhance the compensation and prays to allow the appeal.

¶29

On the other hand, learned counsel for the respondent-insurance company submitted that the judgment and award passed by the Tribunal is just and proper and hence there is no need of interference

¶30

¶31

by this Court. Therefore, he prays for dismissal of the appeal.

¶32

The Tribunal has awarded compensation

¶33

under various heads as follows:

¶34

Pain and suffering Rs.	40,000/-
Medical bills Rs.	11,939/-
Loss of income during laid up period Rs.	32,000/-
Loss of future earning due Rs.	3,74,400/-
to disability
Loss of amenities Rs.	30,000/-
conveyance food and nourishment and attendant charges
TOTAL Rs.	4,88,339/-

¶35

The wound certificate, discharge summary

¶36

and case sheet coupled with evidence of PW.2-doctor proves that the appellant-claimant had suffered burst

¶37

fracture L4 vertebra with anterior vertebral compression fracture L1.

¶38

PW.2-doctor had stated that the appellant-

¶39

claimant had suffered the following disability:

¶40

¶41

" unable to sit and squat on the floor, unable to walk independently without the support of walker and walks with difficulty, weakness in both lower limbs. Diffuse tenderness present at L4,L5 region. Deformity of spine is seen. Bilateral wasting of thigh and leg muscles noted. Bilateral knee muscle power is Grade-3. Bilateral ankle muscle power is grade-2. Complete loss of sensation of both lower limbs below knee. Severe tenderness present over L4. Spine movements are painful and grossly restricted. Patient has got paraparesis."

¶42

8. It is opined by PW.2-doctor, the appellant-

¶43

claimant had sustained permanent physical disability to the extent of 80%. It is proved that the appellantclaimant had suffered paraparesis. Therefore, due to the injuries and disability sustained, the appellantclaimant is not able to do work as before the accident. Hence, the compensation of Rs.40,000/- under the head 'pain and suffering' is on the lesser side and the same is enhanced to Rs.1,00,000/-.

¶44

The amount of compensation awarded

¶45

under the head 'medical bills' is same as per the actual medical bills submitted and it is kept intact.

¶46

¶47

The Tribunal has held that the appellantclaimant had suffered 30% permanent physical disability and accordingly granted compensation by holding income at Rs.8,000/- p.m. is on lesser side and the same has to be modified. The appellantclaimant is mason by profession. He had suffered fracture of L1 and L4 vertebrae. Therefore, he has lost the sensation of both lower limbs below knee, spine movements are painful and grossly restricted the movement of legs and has got paraperisis. PW.2 - doctor had stated that the appellant-claimant had suffered 80% of permanent physical disability. Even though PW.2 -doctor is not a Neurologist, he being an Orthopaedic Surgeon can assess the disability by seeing the condition of the appellant-claimant. Therefore, it cannot be said that PW.2 -doctor is not a competent doctor to say regarding disability. Whether it is proved that PW.2-doctor had stated that the appellant-claimant had lost the sensation of both

¶48

¶49

lower limbs and suffered paraparesis for assessment of this permanent physical disability, it may not be necessary to expect the evidence by only surgeon or neurologist. Even a qualified medical practitioner can say regarding the permanent physical disability occurred to the appellant-claimant. Therefore, the evidence of PW.2 - doctor with regard to physical disability is not impeached that the appellant-claimant is not able to do any work at all. The criteria for calculating functional disability is elaborately discussed by the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another¹ at para

¶50

Nos.12, 13 and 19, which reads as follows:

¶51

“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

¶52

1 reported in (2011) 1 SCC 343

¶53

¶54

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 claimant to such Medical Board for assessment of the disability.

¶55

13. We may now summarise the principles discussed above :

¶56

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

¶57

(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).

¶58

(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.

¶59

¶60

(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.”

¶61

“19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income.”

¶62

The physical disability and functional

¶63

disability are of different aspects. There may be lesser percentage of physical disability but it affects the profession/job/avocation of the appellant-claimant to carryout profession/job/avocation to 100% extent. Then, it would be considered as 100% functional disability. But in the present case, PW.2-doctor had stated that the appellant-claimant had suffered 80%

¶64

¶65

physical disability and he lost sensation of both lower limbs below knee. Hence, as per the principle laid down by the Hon'ble Apex Court in the case of Rajkumar stated supra, it can be held that the appellant-claimant had suffered 90% of functional disability and the appellant-claimant had suffered substantial loss of future income. Then 25% of the income towards loss of future income has to be considered by following the guidelines issued in the judgment of Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi² . Therefore, as discussed above, the quantum of compensation under the head 'loss of earning capacity due to disability including future prospects of life is liable to be reassessed.

¶66

Further, as per the law laid down in the judgment of Hon'ble Apex court and also judgment of Division Bench of this Court in the case of New India

¶67

2reported in (2017) 16 SCC 680

¶68

¶69

Assurance Company Ltd., Vs. Abdul & Others³ ,

¶70

wherein it is held that in the case of injury suffered like in the present case, additional income has to be added towards loss of future prospects in life as it is permissible in the case of injuries where severe disability is occurred affecting the earning capacity substantially. The Division Bench in the above case were pleased to grant compensation by adding income towards 'loss of future prospects in life'. In the above stated case, the appellant-claimant was a tailor and had suffered 20% disability. Therefore, it was granted compensation including loss of future prospects in life. It is useful to refer the observations made by the Division Bench of this Court in the above case at Paragraph Nos.26, 27 and 31, which reads as follows:

¶71

"26.What is the true basis for incorporating ‘loss of future prospects’ in computing compensation under the head of loss of future earning capacity? Is it because courts have to make a distinction

¶72

3 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016

¶73

& 103807/2018 D.D.27.05.2022

¶74

¶75

between various classes of injuries resulting in disabilities having a bearing on the earning capacity and thereafter, mark the cases only of disability resulting from amputation of limbs for incorporating an additional component of ‘loss of future prospects’ into the computational process of loss of future income? Our answer is an emphatic No! In an opinion marked by considerable prescience and percipience, Singhvi J. speaking for a Bench of Supreme Court observed as follows:

¶76

“14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma’s case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstances. In our view, it will be naïve to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life.

¶77

15. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of

¶78

¶79

rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families.

¶80

16. The salaries of those employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lakh.

¶81

17. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed

¶82

¶83

and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason etc.

¶84

18. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma’s judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is selfemployed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserves to be applied for calculating the amount of compensation.” (Santosh Devi v.National Insurance Company Limited and others) 8.

¶85

¶86

27. It is thus evident that this component of ‘loss of future prospects’ is a forensic tool forged by the Supreme Court to off-set the adverse effect of imponderable vagaries of inflation on the assessment of loss of future earning. To link this component only to disability arising from amputation of limbs defies logic and has no sanction of law. It is undoubtedly true that it is no part of the statutory law governing the field of award of compensation in motor vehicle accident cases. But, Courts are enjoined under law to award “just compensation” and no compensation can be regarded as just unless law is capable of reinventing itself by making proper adjustments as the “needs of the time require”. Judges some times make law if the statutes made by the Parliament fall short of meeting the requirements of the time.

¶87

31. Resultantly we are constrained to reject the contention of Sri. G. N. Raichur, learned counsel for the Insurance Company. ‘Loss of future prospects’ also has to be factored in notwithstanding the fact that this is not a case of death but a case of injury without amputation resulting in whole body disability to the extent of 20% which ultimately has a bearing on the reduced earning capacity. It is essentially on account of the fact that money value does not remain constant over a long spell of years and thus claimant being aged only 40 years, he has long years ahead of him to look forward to, the sliding value of the money will have adverse impact on his future prospects. Accordingly, having due regard

¶88

¶89

to the fact that he was aged about 40 years at the time of the accident, 25% of his established income will have to be factored in towards compensation for ‘loss of future prospects’. Therefore, ‘loss of earning capacity’ is recomputed as follows: Rs.6,000/- + 25% (Rs.1,500/-) = Rs.7,500/- Rs.7,500 x 12 x 15 x 20% =Rs.2,70,000/-.

¶90

The accident was caused on 28.09.2016

¶91

and the appellant-claimant was 36 years old as on the date of accident. Therefore, the notional income of Rs.9,500/- p.m. is to be considered as recognized by the Karnataka State Legal Services Authority and the appropriate multiplier would be 13. Accordingly, it is reassessed and quantified as follows:

¶92

9,500/- +2,375 (25% of 9,500) x13x12 = Rs.16,67,250/-.

¶93

The compensation of Rs.32,000/is

¶94

awarded by the Tribunal under the head 'loss of income during laid up period' by holding the monthly income as Rs.8,000/- and considering the laid up

¶95

¶96

period for four months is not correct. Due to the injuries sustained by the appellant-claimant, he might not have attended to work atleast for a period of six months. Therefore, the compensation of

¶97

Rs.57,000/- (9,500x6) is awarded under the head 'loss of income during laid up period'.

¶98

Due to the above stated injuries and disability, the appellant-claimant had suffered discomfort and loss of enjoyment in life as he may not be able to walk, squatting, stand alone, running, climbing upstairs and doing day today normal works. Accordingly, the compensation of Rs.60,000/- is awarded under the head 'loss of amenities'. But the Tribunal has awarded compensation by clubbing the head 'loss of amenities' along with conveyance, food and nourishment and attendant charges. Therefore, the compensation of Rs.30,000/- is retained and it is

¶99

awarded for 'conveyance, food and nourishment and attendant charges'.

¶100

¶101

Thus in all, this Court has determined the

¶102

compensation under various heads as follows:

¶103

Pain and suffering	Rs. 1,00,000/-
Medical bills	Rs. 11,939/-
Loss of income during laid up period (9,500x6)	Rs. 57,000/-
Loss of future earning due to disability	Rs. 16,67,250/-
Loss of amenities	Rs. 60,000/-
Conveyance food and nourishment and attendant charges	Rs. 30,000/-
TOTAL	Rs. 19,26,189/-

¶104

Accordingly, the appellant-claimant is entitled for total compensation of Rs.19,26,189/- as against Rs.4,88,339/- awarded by the Tribunal and also entitled for additional compensation of Rs.14,37,850/- in addition to what has been awarded by the Tribunal.

¶105

Accordingly, I pass the following:

¶106

ORDER

¶107

i. Appeal is allowed in part .

¶108

¶109

ii. The judgment and award dated 5.12.2017 passed in MVC No.224/2017, by the Court of I Addl. Senior Civil Judge & V Addl. MACT, Davangere is modified to the above extent.

¶110

iii. The appellant-claimant is entitled to additional compensation of Rs.14,37,850/- along with interest at the rate of 6% per annum from the date of petition till the date of realization.

¶111

iv. Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.

¶112

v. costs made easy. vi. Draw award accordingly.

¶113

Sd/JUDGE

¶114

SSD

Munuf @ Abdul Munaf v. Mercedes Benz India Ltd.

Case brief

What is this about?

What did the court decide?

Munuf @ Abdul Munaf v. Mercedes Benz India 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

Similar cases

Harish Shetty Vs Ananda Devadiga

The Manager Vs Sri Ramesh

Sri Raja Vs Sri Rajakumar

The Divisional Controller Vs Puneeth Kumari. B. R.

Smt Shaila Vargis Vs Sri Thomas a M

Vinaya Vs Narayana B