Partly allowed

Eregowda v. Amid Pasha

Karnataka HC10 Jun 2022MFA/2878/2017

Case brief

AI extract

What is this about?

The High Court allowed the motor accident appeal in part, enhancing the compensation awarded by the Tribunal from approximately Rs. 7.87 lakhs to Rs. 23.72 lakhs, considering 100% disability and loss of future prospects for an agriculturist who lost his right hand.

What did the court decide?

Awarded enhanced compensation of Rs. 15,84,660/- along with 6% interest p.a. from the date of petition till the date of deposit.

Eregowda Vs Amid Pasha — Insurance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JUNE, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.2878/2017 (MV-I)

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BETWEEN :

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EREGOWDA, S/O KEMPEGOWDA, AGED ABOUT 43 YEARS, R/O NO.82, KACHUVANAHALLI VILLAGE, KANAKAPURA TALUK, RAMANAGARA DISTRICT.

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NOW R/AT:C/O VENKATEGOWDA, GUNDAPURA VILLAGE, HALAGUR HOBLI, MALAVALLI TALUK, MANDYA DISTRICT.

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… APPELLANT

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(BY SRI SHRIPAD V.SHASTRI, ADVOCATE APPEARING THROUGH V/C)

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AND :

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AMID PASHA, S/O SYED PEET L.T., R/O NO.710, HALAGURU VILLAGE, MALAVALLI TALUK, MANDYA DISTRICT, (OWNER OF THE LORRY BEARING REG. NO.:KA.10.846)

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IFFCO TOKIO GEN. INS.CO.LTD., REGIONAL OFFICE, REG. BY REGIONAL MANAGER, SRI SHANTHI TOWERS, NO.141, 5^TH FLOOR, 34D MAIN, EAST TO NGEF LAYOUT, KASTURINAGAR, BANGALORE, (POLICY NO.1-207X38C P400 VALID FROM 31.3.2013 TO 30.3.2014)

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... RESPONDENTS

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(BY SRI D.S. SRIDHAR, ADVOCATE FOR R2, R1-NOTICE DISPENSED WITH V/O DT:15/11/2017)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:18.01.2017 PASSED IN MVC NO.1595/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MALAVALLI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.,

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

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J U D G M E N T

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The present appeal is filed by the

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appellant/claimant challenging the judgment and award dated 18.01.2017 passed in

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MVC.No.1595/2015 by the Senior Civil Judge and MACT, Malavalli.

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The brief facts of the case are as under:

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On 15.02.2014 the claimant was riding the Hero Honda Passion Pro Motor Cycle bearing Reg.No.KA-45J-3252 on the left side on Mysore Road, Kanakapura Town, and when he reached near SBI Bank, at about 3.00 pm., at that point of time, one Lorry bearing Reg.No.KA-10-846 came from behind from Halaguru side in a rash and negligent manner, endangering to human life and dashed to the claimant. Due to the accident, the claimant fell down, the front wheel of the said Lorry ran over on right hand of the claimant and sustained grievous injuries.

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The claim petition was filed by the appellant/claimant seeking compensation. The

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Tribunal has partly allowed the claim petition and awarded compensation of Rs.7,87,000/- with interest at 6% p.a., from the date of petition till the date of deposit. Being aggrieved by the same, the present appeal is filed before this Court.

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Heard the arguments of learned counsel on

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both sides and perused the materials on record.

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Learned counsel for the appellant-claimant submitted that the amount of compensation awarded by the Tribunal on all the heads is meager one. Therefore, prays for enhancement of compensation. Further submitted that the appellant-claimant sustained amputation of right hand upto the shoulder level and the appellant was an agriculturist and also was doing milk vending business, which certainly affects his future prospects and also the loss of earning capacity due to 100% of disability. Therefore,

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prays for holding the disability at 100% and also prays for enhancement of compensation under all the heads including loss of future prospects and also loss of earning capacity due to disability. Therefore, prays to allow the appeal by enhancing the compensation.

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On the other hand, learned counsel for

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respondent No.2-Insurance Company submitted that the Tribunal has correctly assessed and determined the compensation on each head. Therefore, there is no need to make enhancement of compensation. Further submitted that the notional income and the percentage of disability taken by the Tribunal is correct and the amount of compensation awarded under the head “loss of future income due to permanent disability” is correct, which needs no interference.

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7. Further submitted that the appellant-

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claimant is not entitled for compensation under the head loss of future prospects in the case of injuries. Therefore, submitted that the amount of compensation awarded on each head is correct, and it needs no interference. Therefore, prays to dismiss the appeal.

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8. The Tribunal has awarded the

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compensation under various heads as follows:

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Pain and sufferings	Rs. 40,000/-
Medical expenses	Rs.4,95,500/-
Attendant, Nourishment, Food and Transport	Rs. 10,000/-
Future Medical Expenses	Rs. 10,000/-
Permanent Disability	Rs.2,31,840/-
Total	Rs.7,87,340/-

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In the judgment and award passed by the Tribunal, the compensation of Rs.7,87,340/is rounded off to Rs.7,87,000/-.

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Ex.P.5 is the wound certificate, Ex.P.7 is the discharge summary, Ex.P.111 is the case sheet Ex.P.113 is X-ray. All these documentary evidence prove the fact that the appellant is having amputated right upper limb at shoulder level with tenderness over stump and axillary wall. Therefore, it proves that the right hand of the appellant was amputated above the elbow and upto the shoulder level and the appellant was constrained to admit to the hospital. Therefore, the amount of compensation awarded by the Tribunal on each head is inadequate and the same needs to be enhanced.

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The Tribunal has awarded compensation of Rs.40,000/- only towards “pain and suffering” and the same needs to be enhanced. Accordingly, a sum of Rs.1,00,000/- is awarded under the head “pain and sufferings”. The Tribunal has awarded compensation

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of Rs.4,95,500/- towards “medical expenses and hospitalization charges”, which is based on the medical bills and prescriptions and other medical records produced. Therefore, reconsidering the same on this aspect, the quantum of compensation awarded under this head is correct. Hence, it is kept in tact.

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Further the Tribunal has awarded

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compensation of Rs.10,000/- towards “attendant, nourishment, food and transport” and the same is found to be correct and sufficient. The appellant had suffered fracture of right shoulder and his right upper limb was amputated upto the shoulder level. The appellant was constrained to admit to the hospital for multiple times. Thereafter, the appellant was also required to go to the hospital for further treatment. Therefore, the compensation of Rs.10,000/- awarded by the Tribunal under the head “Attendant, Nourishment, Food and Transport” is on the lesser

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side. Hence, considering the factors as above

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discussed, the quantum of compensation under the head “Attendant, Nourishment, Food and Transport” is

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to be enhanced. Accordingly, it is enhanced to Rs.20,000/-.

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Further the Tribunal has awarded

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compensation of Rs.10,000/- towards “future medical expenses”. The appellant has suffered amputation of right hand. Just because, the right hand of the appellant was amputated, it does not mean that the appellant is not in need of any future medical expenses. The appellant may purchase artificial equipment of limb in future and also the appellant may need surgery in future for removal of implant fixed above the shoulder. Considering the year of accident as 2014, nature of injuries sustained by the appellant and the amount required for removal of

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implant fixed above the shoulder, the compensation of Rs.50,000/- is awarded under the head “future medical expenses”.

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The Tribunal has awarded compensation of Rs.2,31,840/- under the head “loss of future income due to permanent disability” by holding the notional income at Rs.6,000/- per month and 23% of disability towards the whole body. In the present case, the appellant was an agriculturist and was doing milk vending business. The appellant has produced Ex.P.106-Silk Worm rearers licence cum pass book, Ex.P.107-Milk supply card and Ex.P.108-milk supply statement, which prove the fact that the appellant was doing agriculture, growing sericulture and was also doing milk vending business. Just because, the amount is not entered in the milk supply card and milk supply statement that cannot be said that the appellant was not doing agricultural work and also not

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doing milk vending business. Hence, the notional income at Rs.8,500/- is to be taken into consideration as per the notional income chart recognized by the Karnataka State Legal Service Authority. Accordingly, monthly notional income is taken at Rs.8,500/-.

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In the present case, the appellant was doing agricultural work and was also doing milk vending business. Due to amputation of right hand upto the shoulder level, the appellant is not able to do any agricultural work including milk vending business, which requires more physical strength. As the appellant had suffered amputation of right hand, certainly, it affects future prospects in life. In the case of injury where the injured suffers functional disability of above 85% to 90% or even 100%, certainly, it affects loss of future prospects in life, as the injured persons in these types of cases are not able to work. Therefore, the appellant in the present

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case who has suffered amputation of right hand upto

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the shoulder level, certainly, is entitled for compensation under the head “loss of future prospects”. In this regard, I place reliance on the judgment of the Hon’ble Apex Court in the case of Syed Sadiq and Others Vs. Divisional Manager, United India Insurance Company Limited

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reported in (2014) 2 SCC 735.

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In Syed Sadiq’s case, the facts are that the claimant who is a vegetable vendor had sustained 85% of functional disability and the occupation of the vegetable vending is not confined to selling vegetables from a particular location, rather it involves procuring vegetables from the wholesale market or the farmers and then selling it off in the retail market. This often involves selling vegetables in the cart, which requires 100% mobility. Therefore, assessed the functional disability at 85% and also granted 50% of increment

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in future loss of income. The said principles of law laid down in Syed Sadiq’s case are squarely applicable to the present case also. In the present case, the appellant has suffered amputation of right hand, but the Tribunal has considered the functional disability at 23% only, which is not sufficient and also not practical one considering the nature of injuries sustained and sufferings undergone by the appellant. The appellant was doing agricultural work and also was doing milk vending business. Now, he cannot do those works without use of right hand. Therefore, it amounts to loss of 100% of mobility of the appellant. Hence, the functional disability is to be taken into consideration at 90% by following the principles of law laid down by the Hon’ble Apex Court in Syed Sadiq’s case and also in the case of Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343.

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In the present case, the appellant was aged 41 years as on the date of the accident. Therefore, following the judgment of National Insurance Co. Ltd –v- Pranay Sethi and Others reported in

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AIR 2017 SC 5157, 25% of income has to be added towards calculation of compensation under the head loss of future prospects. The appropriate multiplier is “14” according to the age of the appellant as per the principles of law laid down in the case of Sarla Verma and Others –Vs- Delhi Transport Corporation and Another reported in AIR 2009 SCC 3104 . Therefore, the loss of future earning capacity due to functional disability including loss of future prospects in life are calculated and quantified as follows:

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Rs.8,500/- + Rs.2,125/- (25% of Rs.8,500/-) = Rs.10,625/-

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Rs.10,625/- x 90% x 14 x 12= Rs.16,06,500/-

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Since, the appellant had suffered amputation of right hand, certainly, he lost enjoyment in married life, discomfort and to do day to day normal work, he always need assistance of other family members. Therefore, under the head of “loss of amenities” the Tribunal has not awarded any compensation. Therefore, a sum of Rs.1,00,000/- is awarded under the head “loss of amenities”.

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18. The appellant/claimant is entitled to the

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compensation as follows:

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Pain and sufferings	Rs. 1,00,000/-
Medical expenses	Rs. 4,95,500/-
Attendant, Nourishment, Food, Transport	Rs. 20,000/-
Future Medical Expenses	Rs. 50,000/-
Loss of future earning capacity due to functional disability including loss of future prospects in life	Rs.16,06,500/-
Loss of amenities	Rs. 1,00,000/-
Total	Rs.23,72,000/-

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The Tribunal has awarded compensation of Rs.7,87,340/-, but the appellant/claimant is entitled to total compensation of Rs.23,72,000/- . Hence, the appellant/claimant is entitled to enhanced compensation of Rs.15,84,660/- (Rs.23,72,000/- - Rs.7,87,340/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.15,84,660/- along with interest at the rate of 6% per annum from the date of petition till the date of deposit.

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20. Accordingly, I pass the following:

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ORDER

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Appeal is allowed-in-part .

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The appellant-claimant is entitled to enhanced compensation of Rs.15,84,660/- along with the rate of interest at 6% per annum from the date of petition

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till the date of deposit, in addition to what has been awarded by the Tribunal.

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Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith.

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Draw award accordingly.

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No order as to costs.

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Sd/JUDGE

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