Partly allowed

Mr. Naveen S v. the Managing Director

Karnataka HC2 Aug 2022MFA/2368/2017

Case brief

AI extract

What is this about?

This judgment enhances compensation for a motor accident claimant who suffered severe injuries to his right leg. The High Court re-evaluated disability percentage, income, and multiplier, increasing total compensation from over ten lakhs to nearly eighteen lakhs rupees by modifying the Tribunal's award.

What did the court decide?

Appeal allowed in part; total compensation enhanced to Rs. 18,43,697/- with additional Rs. 7,82,400/- plus 6% interest.

Mr. Naveen S Vs the Managing Director — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF AUGUST 2022

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BEFORE

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THE HON’BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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MFA NO.2368 OF 2017 (MV-I)

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BETWEEN:

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MR.NAVEEN S. S/O SELVARAJ AGED ABOUT 30 YEARS R/AT NO.21, G-519 PATALAMMA TEMPLE PANTHARAPALYA NAYANDAHALLI MYSORE ROAD BANGALORE - 560 039 ... APPELLANT

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(BY SRI.K.T.GURUDEVA PRASAD, ADV.)

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AND:

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THE MANAGING DIRECTOR B.M.T.C., CENTRAL OFFICES K.H.ROAD, SHANTHINAGAR BANGALORE - 560 027 ... RESPONDENT

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(BY SRI.F.S.DABALI, ADV.)

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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 02.07.2016 PASSED IN MVC NO.3207/2015 ON THE FILE OF THE MEMBER PRINCIPAL MACT AND CHIEF JUDGE, COURT OF SMALL CAUSES AT BANGALORE (SCCH-1) PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA COMING ON FOR ADMISSION, THIS DAY THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The appeal is filed by the appellant/claimant challenging the judgment and award dated 02.07.2016 passed by the Member, Principal Motor Accident Claims Tribunal, Bangalore in MVC No.3207/2015. The claimant is seeking for enhancement of the compensation.

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The brief facts of the case are as follows:

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On 28.06.2015, at about 9.20 p.m., when the

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claimant was proceeding in his motorcycle on 1st Main Road, Chamarajpet, Bangalore and reached near Sri Sari Cafe Hotel, at that time, the driver of BMTC bus bearing registration No.KA.57/F.1541 came in a rash and negligent manner and dashed against the claimant, as a result of which, he fell down and sustained grievous injuries and immediately he was shifted to Victoria Hospital, Bengaluru for treatment wherein first aid was given

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to him and thereafter, he was shifted to various hospitals for treatment.

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The claim petition was filed by the appellant/claimant under Section 166 of the Motor Vehicles Act seeking compensation. The Tribunal has partly allowed the claim petition and awarded compensation of Rs.10,61,297/- with interest at 9% p.a. (excluding Rs.25,000/- awarded under the head future medical expenses) from the date of the petition till realization. Aggrieved by the same, the present appeal is preferred before this Court.

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Learned counsel for the appellant submitted that considering the nature of injuries sustained by the appellant/claimant which virtually amounts to loss of entire right lower limb as per the medical evidence produced the compensation awarded by the Tribunal under various heads are

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inadequate. Therefore, he prays for enhancement of the compensation.

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On the other hand, learned counsel for the respondent/Corporation submitted that the amount of compensation awarded under various heads are proper, and hence, there is no ground to enhance the compensation. Therefore, he prays to dismiss the appeal.

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6. The Tribunal has awarded the

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compensation under various heads as follows:

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Sl. No.	Heads of compensation	Amount in Rs.
1.	Pain and sufferings	75,000.00
2.	Conveyance charges, attendant charges and other incidental expenses	50,000.00
3.	Medical expenses incurred	5,28,297.00
4.	Loss of income on account of disability	2,88,000.00
5.	Loss of income during the period of treatment (7,500*6)	45,000.00
6.	Loss of amenities in life	50,000.00

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7.	Future medical expenses	25,000.00
	Total	10,61,297.00

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In the present case, Ex.P5 is the wound certificate, Exs.P7 and P9 are discharge summaries, Ex.P12 is the photographs, Ex.P18 is the inpatient record, Exs.P19 and 21 are the X-Rays which all prove that the appellant had taken treatment in St.John's College Hospital, Bengaluru and suffered the following injuries:

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1. Abrasion over right side of face measuring 10*8 cm

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1. Abrasion over right shoulder measuring 63 cm 3) Abrasion over left flank region measuring 2010 cm

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1. Crush and degloving injury over inner aspect of right thigh to right leg mid-calf level exposing muscles, vessels and fractured bones.

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X-Ray would show that there is avulsion

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fracture of medial aspect in right knee. Injury No.4

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stated above is grievous in nature. The claimant got examined two Doctors as PW.2 and PW.3. The petitioner was admitted to the said hospital on 30.06.2015 for the injuries sustained by him and was discharged on 09.10.2015. Therefore, the claimant was treated as an inpatient in the hospital for about 100 days. Ex.P7 - discharge summary would show that the claimant had suffered post traumatic degloving injury to right knee with bone loss of medial temporal and medial tibial condyle with composite defect right knee joint with flail right foot and he underwent the following

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procedure:

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1. Emergency debridement + ex fix (by ortho IA) under SA on 30.06.2015

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1. Debridement right knee joint under SA on 07.07.2015

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1. Debridement + free left latissimus dorsi flap to right knee + SSG under GA on 16.07.2015

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1. Debridement of free flat under GA on 24.07.2015

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1. Medially based cross leg flap delay in left leg under SA on 30.07.2015

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1. Cross leg flap (L-R) under SA on 06.08.2015

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1. Flap re inset under GA on 13.08.2015

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1. First delay of cross leg flap under LA on 28.08.2015

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1. Second delay of cross leg flap under LA on 03.09.2015

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1. Third delay of cross leg flap under LA on 10.09.2015

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1. Division and inset of flap under SA on 18.09.2015

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1. Debridement + ex fix removal + SSG under SA on 25.09.2015

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Taking into consideration the nature of injuries sustained by the appellant, the compensation awarded under the head 'pain and suffering' at Rs.75,000/- is on the lower side. Having considered that his entire right leg was crushed and fracture of bones, a compensation of Rs.1,25,000/- is awarded under the head 'pain and suffering'. Further, the Tribunal has awarded a compensation of Rs.50,000/- towards 'conveyance charges, attendant charges and other incidental expenses'. In view of the fact that the claimant

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was an inpatient in the hospital for about 100 days and even though there is no evidence as to whether he is married or unmarried but had engaged the services of a house maid servant to take care of him in the hospital and also not only being inpatient for 100 days at initial point of time but after discharge also the claimant had visited the hospital for 12 times for medially based cross leg flap delay in left leg under SA, cross leg flap etc., the compensation awarded under the said head is on the lower side and accordingly, it is enhanced to Rs.75,000/under the head 'transportation, conveyance charges, attendant charges, food and nourishment and other incidental expenses'. Further, the Tribunal has awarded a compensation of Rs.5,28,297/- towards medical expenses and hospital bills which is as per actual bills and there is no other evidence to enhance the compensation under the said head. Therefore, the amount

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awarded by the Tribunal under the said head is proper. The Tribunal had considered the notional income of the appellant at Rs.7,500/- per month. Taking into consideration the age of the appellant at the time of the accident as 31 years and also considering 20% disability to the whole body, it has awarded a compensation of Rs.2,88,000/- under the head of 'loss of income on account of disability'. The amount awarded under the said head is on the lesser side for various reasons. The accident had taken place on 28.06.2015. Therefore, the notional income ought to have been taken at Rs.9,000/- per month as per the chart recognized by the Karnataka State Legal Services Authority. Ex.P11 is the Aadhaar card which shows the date of birth as 01.03.1987. The accident had taken place on 28.06.2015. Therefore, as per Aadhaar card as on the date of the accident, the claimant was aged 28 years 3 months instead of 31 years which was

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considered by the Tribunal. The Tribunal has considered the age as per the medical records maintained in the hospital. As the claimant has produced Aadhaar card - Ex.P11, the date of birth reflected therein would be considered and according to this, the age of the appellant/claimant is found to be 28 years 3 months as on the date and time of the accident. Accordingly, the appropriate multiplier is 17.

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Therefore, the multiplier taken by the Tribunal is not correct and the same is to be taken as ‘17’ as per the age of the claimant as found in Aadhar card, Exhibit-P11, which shows that the claimant was aged 28 years as on the date of the accident. What are the nature of injuries sustained by the claimant as stated above. As per the medical records, Exhibit-P7 is the discharge summary, which shows that initially the claimant was admitted as inpatient for a period of 100 days from 30.06.2015 to 09.10.2015 and after

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discharge from the hospital, he was constrained to go to hospital 12 times on different dates for follow up treatment for “post traumatic degloving injury to right knee with bone loss of medial femoral and medial tibial condyle with composite defect right knee joint with flail right foot”.

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PW2-Doctor working as plastic surgeon at Bangalore. PW-3 is an orthopedic surgeon. From the evidence, it is revealed that PW-2 has not treated. PW-3 even though may not have treated Doctor, he is an expertise in orthopedic surgeon in Bangalore Medical College, Bangalore. Both PW2 and PW-3 have described in detail, what is the nature of injuries sustained by the applicant/claimant and the disability suffered and also the nature of the treatment given to the claimant. Even though the evidence of PW3 is based on medical records only, his evidence cannot be brushed aside only for the reason that PW-2 is the treated doctor. PW-2 is an Ortho and has given review

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that right fail foot and advise right knee brace and foot drop splint, followed by operative procedure for right knee joint at a later time and the patient was advised physiotherapy for his legs and daily dressing of the wound.

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Further, PW2 had deposed that he examined the claimant on 17.02.2016 and assessed his physical impairment for right lower limb and the claimant complains of inability to walk, to use his right lower limb for daily activities and not being able to go for his professional work and on examination, he had scars over the left lower chest and abdomen, bilateral thighs, bilateral legs and right knee and he has right knee fixed flexion deformity, flickery ankle moment, toe movements present and PW-2 calculated the physical impairment for right lower limb as per the Gazette of India Notification dated 13^th June 2001 at 42.5%.

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PW-3 is the Doctor who is an Orthopedic Surgeon at Bangalore Medical College and Research Institute, Bengaluru. In his evidence, PW-3 has stated that the claimant has suffered permanent residual physical disability about 25.5% to whole body and the claimant is advised to undergo correction of common peroneal nerve injury leading to foot drop, by nerve grafting operation and the claimant being a Tyre Re-Built Worker prior to the accident, finds it difficult to do his work as he was doing prior to the accident.

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Further, PW-2 – Doctor had deposed that the claimant is unable to do Tyre Re-Built Worker prior to the accident. Exhibit-P12 are the photographs showing the pathetic condition of the right leg of the claimant, which speaks itself how the claimant had suffered grievous injuries. Certainly, with the condition of the right leg of the claimant, he will not be able to do Tyre Re-Built Work, which requires much physical strength for using both legs. When it is the

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evidence of Doctor – PW-2 that the claimant is not able to perform his work and daily normal activities and therefore certainly is not able to work as Tyre ReBuilt Work and to that extent he has lost his earning capacity.

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The learned counsel for the claimant submitted that the disability has to be taken at 100%. The said contention of the learned counsel for the claimant cannot be accepted, since there is no amputation of the leg. Therefore, considering the nature of injuries sustained as above, discussed it is appropriate to consider 40% of the functional disability occurred to the claimant. The Tribunal has taken only 20% of the permanent disability to consider the functional disability according to the avocation of the claimant. But considering the medical evidences above discussed, there is no specific formula that 1/3^rd of the disability is to be taken into

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consideration. Calculation of functional disability is not a mathematical formula. In this regard, this Court follows the principle laid down by the Hon’ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another, reported in (2011) 1 SCC 343, at para Nos.12, 13 and 19, which reads as follows:

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

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13. 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 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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“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.”

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Therefore, 20% of the disability taken by

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the Tribunal is on the lesser side. PW-2 Doctor has stated that the claimant has suffered 42.5% disability towards right lower limb. PW-3 Doctor has stated that the claimant has suffered 25.5% disability to the whole-body. Therefore, considering the nature of injuries sustained above stated and considering the evidence of Doctors PW-2 and PW-3 and considering the nature of work of the claimant as he was doing Tyre Rebuilt Worker, it is appropriate to take 40% as functional disability affecting the earning capacity of the claimant. As per the chart of Karnataka State Legal Services Authorities, since the accident has occurred in the year 2015, accordingly, the notional income of the appellant is assessed as Rs.9,000/- per month. The age of the claimant at the time of the accident was 28 years, therefore the appropriate multiplier applicable as per the judgment of the Hon’ble Supreme Court, in the case of Smt.Sarla

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Verma & Others. Vs. Delhi Transport Corpn And Another reported in AIR 2009 SC 3104 , is ‘17’. Therefore, the ‘ Loss Of Earning Capacity Due To Disability’ is recalculated and quantified as follows:

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Rs.9,000 x 40/100 x 17 x 12 = 7,34,400/-

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Accordingly, a compensation of Rs.7,34,400/- is awarded under the head ‘loss of earning capacity due to disability’.

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The Tribunal has awarded a sum of Rs.45,500/- towards ‘Loss Of Earning During Laid Up Period’ by taking income Rs.7,500/- per month and calculating the laid up period for six months. Considering the fact that the claimant was admitted as inpatient initially for a period of 100 days and after discharge he was constrained to go to hospital for follow up treatments as discussed above, therefore the compensation under the head ‘Loss Of Income During Laid Up Period And Treatment Period And

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Compulsive Rest Period’ is taken as nine months. Considering the income of claimant at Rs.9,000/- per month, the appellant is entitled for a sum of Rs.81,000/- (Rs.9,000 x 9 months) , under the head Loss Of Income During Laid Up Period And Treatment Period And Compulsive Rest Period’ .

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The Tribunal has awarded compensation of Rs.50,000/- towards loss of amenities in life. But considering the nature of injuries and disability, the claimant is unable to walk and he is not able to do his daily normal activities also his consummation of marriage has become bleak. In case of marriage also, the claimant’s marital prospects will certainly be affected, besides loss of enjoyment in life, following discomfort and inconvenience, mental agony. Accordingly, the compensation of Rs.1,00,000/- is awarded under the head of ‘Loss Of Amenities In Life’

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The Tribunal has only awarded Rs.25,000/-

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towards ‘Future medical expenses’, which is meager one. Considering the nature of injuries sustained and also the medical treatment taken as stated above, there are several fractures and the claimant was treated with skin grafting, added to that PW-3 Orthopedic Surgeon stated that claimant has to under go common peroneal never injury leading to foot drop, by nerve grafting operation and also later surgery for removal of fixation. Under these circumstances, the Tribunal has awarded meager amount of compensation. Therefore, a sum of Rs.1,00,000/- is awarded under the head ‘Future Medical Expenses’.

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Hence, the appellant is entitled for a total enhanced compensation, under various heads as

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follows:

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Pain And Suffering : Rs. 1,25,000/Conveyance charges, attendant : Rs. 75,000/charges and other incidental expenses

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Medical Expenses	: Rs.	5,28,297/-
Loss of earning capacity due to	: Rs.	7,34,400/-
disability(Rs.9,000 x 40% x 17 x 12)
Loss of Amenities in Life	: Rs.	1,00,000/-
Loss of income during laid-up period (Rs.9,000 x 9)	: Rs.	81,000/-
Future Medical Expenses	: Rs.	1,00,000/-
TOTAL	: Rs.	18,43,697/-

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Therefore, the appellant is awarded a total compensation of Rs.18,43,697/- as against the compensation awarded by the Tribunal at Rs.10,61,297/-. Hence, the appellant is entitled for an additional compensation of Rs.7,82,400/- (Rs.18,43,697 – Rs.10,61,297), along with interest at 6% per annum from the date of filing of the petition till deposit.

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Accordingly, I pass the following:

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ORDER

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i. The appeal is allowed in part .

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ii. The impugned judgment and award dated

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02.07.2016, passed in MVC No.3207/2015,

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on the file of the Motor Accident Claims

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Tribunal and Small Causes at Bengaluru is modified to the aforesaid extent.

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iii. The appellant is entitled for an additional compensation of Rs.7,82,400/- (Rs.18,43,697 – Rs.10,61,297), along with interest at 6% per annum from the date of filing of the petition till deposit in addition to what has been awarded by the Tribunal.

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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.

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v. No order as to cost.

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vi. Draw award accordingly.

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Sd/JUDGE

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Mr. Naveen S v. the Managing Director

Case brief

What is this about?

What did the court decide?

Mr. Naveen S v. the Managing Director

Case brief

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What did the court decide?

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