Partly allowed

Sri Dheeraj v. Sri Narayana Nalke

Karnataka HC22 Aug 2022MFA/7725/2016

Case brief

AI extract

What is this about?

The High Court allowed a Motor Vehicles First Appeal challenging the compensation awarded in a motor accident claim petition. The Court modified the Tribunal's award by rewriting the compensation under specific heads including loss of amenity, loss of income during laid-up period, and significantly increasing loss of future income based on functional disability and multiplier principles.

What did the court decide?

Appeal allowed in part; compensation enhanced to Rs. 2,09,681/- along with interest at 6% per annum from the date of filing of the petition.

Sri Dheeraj Vs Sri Narayana Nalke — 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 22^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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MISCELLANEOUS FIRST APPEAL NO.7725 of 2016 (MV-I)

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BETWEEN:

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SRI DHEERAJ S/O KRISHNAPPA SUVARNA AGED ABOUT 37 YEARS R/AT KRISHNAPALA HOUSE MOODU MARNADU VILLAGE BELUVAI, MANGALORE TALUK-575 019.

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...APPELLANT

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(BY SRI K.SHAMANTH, ADV., A/W SRI ARUNA SHYAM M., SR.ADV.,)

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AND :

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SRI NARAYANA NALKE AGED NOT KNOWN TO THIS PETITIONER S/O CHANDU, R/AT MURUGUDDE HOUSE BARADI VILLAGE AND POST KARKALA TALUK-574 104.

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SRI DAMODARA

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AGED NOT KNOWN TO THIS PETITIONER S/O GIRIYAPPA POOJARY R/AT D.NO.1/117, BLOCK NO.7 BELUVAI, MOODBIDRE-574 227.

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THE BRANCH MANAGER UNITED INDIA INSURANCE COMPANY LIMITED SRINIVASA COMPLEX, A.S.ROAD KARKALA TALUK-574 104.

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...RESPONDENTS

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(BY SRI M.V.POONACHA, ADVOCATE FOR R3; R1 & R2 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.01.2016 PASSED IN M.V.C. NO. 1339 OF 2012 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., MANGALURU PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the claimant challenging the impugned judgment and award dated 22.01.2016, passed by the III Addl. Senior Civil Judge & JMFC., Mangaluru, in M.V.C.No.1339/2012 (hereinafter referred to as ‘the Tribunal’ for brevity) and seeking for enhancement of compensation.

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For the sake of convenience, the parties shall be herein after referred to as per their ranking before the Tribunal.

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Brief facts as stated are that on 17.03.2012, the petitioner was proceeding in his motorcycle bearing registration on KA-03-EU7782 along with his brother Suraj. At about 8.50 p.m. when they reached near Kanathavara Cross in Beluvai village, they noticed an auto bearing registration No.KA-19-B-2214 was capsized in a mud

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road, therefore, they parked their vehicle to help the driver and passengers of the auto. At that time an Ambassador car bearing registration No.CNX-1826 came from Karkala side at high speed and in rash and negligent manner, dashed against the claimant causing him grievous injuries and fracture to his right foot. Immediately he was shifted to City hospital, Karkala, and thereafter to SCS hospital, Bendoor, Mangaluru, for further treatment. He took treatment from 17.03.2012 to 16.04.2012, wherein he underwent surgery by wire fixation and wound debriement. He was under bed rest for a period of six months with follow up treatments. Due to the accident, he was permanently disabled, therefore, appointed an attendant by paying .200/- per day. He spent more than .1,50,000/-. It is his case that he was working as a manager in a mobile shop and earning `15,000/- per month. Hence, he filed claim petition against the driver, owner and insurer of the offending vehicle under Section 166 of the Motor Vehicles Act, claiming compensation.

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Despite service of notice, respondents No.1 and 2 did not appear in the claim petition, hence, they were placed ex-parte .

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However, only respondent no.3- insurer of the offending vehicle entered appearance and filed written statement by denying the averments made in the claim petition. It contended that the amount of compensation awarded by the Tribunal is excessive, exorbitant and without any basis. It denied the place, time and date of occurrence of accident. It denied the treatment taken by the claimant and also the disability suffered by him. It admitted the issuance of policy as per terms and conditions. Hence, it prays for dismissal of the claim petition.

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Heard the arguments of the learned counsel appearing for the appellant-claimant and the learned counsel for Respondent No.3-Insurance company and perused the materials on record.

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Learned counsel for the appellant submitted that the quantum of compensation awarded is meager without considering the parameters under different heads, the claimant is entitled to. Therefore, on each head the compensation determined is on the lesser side. He further submitted that considering the avocation of the claimant as he was a Sales Manager in a Mobile shop, which

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requires some physical strength i.e., standing for long time. Due to the fracture sustained metatarsal bones of right leg, certainly the claimant had suffered future prospects and loss of income due to disability, which was lost sight of by the Tribunal. Therefore, he prays to award compensation under the head 'loss of future income' on account of disability suffered. He further argued that the Tribunal has not awarded any compensation under the head 'loss of amenities' and 'medical expenses' separately, so also 'loss of income during laid up period', hence, prays for awarding of compensation on each head as pecuniary loss. Hence, prays for allowing the appeal.

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On the other hand, learned counsel appearing for Respondent No.3 - Insurance Company submitted that the amount of compensation awarded is proper, correct and justifiable, which needs no interference considering the nature of injuries sustained and the avocation of the claimant, therefore, submitted that there is no good ground to available for seeking enhancement of compensation. Therefore prays for dismissal of the appeal.

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The Tribunal has awarded compensation under various heads as follows:

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Sl.No.	PARTICULARS	AMOUNT
1	Pain and sufferings	`86,161/-
2	Attendant, food and extra nourishment	`9,000/-
3	Loss of income	`10,000/-
	TOTAL	`.1,05,161/-

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The petitioner has produced Ex.P2 - copy of the Wound Certificate, Ex.P6 - discharge summary and Ex. P7 - disability certificate, Ex.P.10 - X-ray, Ex.P.12 - photo and Ex.P.13 - case sheet and also examined the doctor as P.W.2 to prove the fact that he had sustained the following injuries:

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"Fracture of 4^th proximal metaphalyx and 5^th metatarsal head and base with dislocation with tendor exposed."

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As per the evidence available on record, the injury suffered by the claimant is grievous in nature. But the Tribunal has committed error in clubbing 'pain and sufferings', 'medical expenses' and 'loss of future income' by awarding in all a total sum of `86,161/- only referring the head as ' Pain and Sufferings',

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which is incorrect. Therefore, same needs to be modified. Hence considering the nature of injuries observed above and the claimant had suffered fracture of 5^th metatarsal bone of right leg, compensation of ` 20,000/- awarded by the Tribunal is only to be considered under the head 'Pain and sufferings'.

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Further the claimant has produced Ex.P.11 - bills for a sum of 16,161/-. The claimant was inpatient for a period of one month. Accordingly, the Tribunal considered the same and awarded 16,161/- towards 'medical bills and hospital charges'. The same is affirmed under the head 'medical expenses'.

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The Tribunal has not awarded any compensation towards 'loss of amenities'. But same is required to be awarded considering the nature of injuries sustained as stated above and the surgery underwent by the claimant and percentage of disability suffered by him. The appellant-claimant was working as a Sales Manager in a Mobile shop, which requires a constant long standing hours of work. Due to the disability suffered, it is difficult for him to do his normal

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activities and lost his enjoyment in life, therefore, the claimant is entitled to a sum of ` 30,000/- towards 'loss of amenities'.

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Further the Tribunal has awarded compensation of `10,000/- towards 'loss of income'. But, the Tribunal has not stated the same as to whether it relates to 'loss of income during laid up period' or for 'loss of future income'. Considering the fact that the petitioner was inpatient for a period of one month and subsequently was under bed rest for a period of one and half months, therefore, he is entitled to compensation under the head 'loss of income during laid up period'.

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The accident is of the year 2012. Therefore in the absence of proof of income, the notional income of 7,000/- is taken as income of the claimant as per the chart adopted by the Karnataka Legal Services Authority, for the year 2012. Considering the surgery underwent and the disability suffered by the claimant and also subsequent bed-rest, the 'loss of income during laid up period' is to be computed for a period of three months. Accordingly, a sum of 21,000/- (`7,000 X 3) is awarded under the head 'loss of income during laid up period'.

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Further the Tribunal has not awarded any amount under the head 'loss of future income' due to disability suffered. As stated above, the notional income of the claimant is taken at `7,000/- per month considering the year of the accident. The doctor - P.W.2 in his evidence has stated that the appellant/claimant had suffered 10% disability to right foot. Ex.P.7 is the disability certificate issued by the doctor. The learned counsel for the insurer submitted that 1/3^rd is to be taken as percentage of disability. Said disability on account of the injury sustained is not mathematical calculation so as to assess 1/3^rd disability as stated by the doctor to a particular limb or a part of the body. But functional disability is to be assessed, considering the nature of injuries sustained and the avocation/profession of the injured claimant was doing. In the present case, the claimant was stated to be working as a Sales Manager in a Mobile Shop which requires some physical capacity/ strength to stand for long hours during the course of the day. Due to the fracture to the metatarsal bone of right leg, the claimant certainly is not able to stand for long hours while working as Sales Manager and due to that the claimant had suffered loss of future prospects and income, same is to be compensated by assessing

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some percentage of the disability following the principles of law 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

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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, considering the principles laid down by the Hon’ble Supreme Court stated supra, and the injuries suffered by the appellant as discussed above, the claimant had suffered fracture injuries, it is just and proper to hold that the claimant had suffered

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8% towards functional disability. As per the medical records as discussed above, the age of the claimant was 32 years as on the date of the accident and the appropriate multiplier applicable would be '16' as per the judgment of the Hon’ble Supreme Court, in the case of Smt. Sarla Verma & Others. Vs. Delhi Transport Corporation And Another reported in AIR 2009 SC 3104. Therefore, 'loss of future income' due to disability is recalculated and quantified as 7,000 X 8/100 X 16 X 12 = 1,07,520/-.

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Further considering the injuries sustained by the claimant followed by surgery and also inpatient treatment for a period of 30 days, the claimant has certainly require some amount towards 'future medical expenses' for removal of implants, if any, inserted, the claimant is entitled to a sum of ` 15,000/- towards 'future medical expenses'. Therefore, to the above extent, the impugned judgment and award passed by the Tribunal is liable to be modified.

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Therefore, in all, the appellant is entitled for compensation under various heads as follows:

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Sl. No.	Particulars	Amount
1.	Pain and Sufferings	`20,000/-
2.	Medical Expenses	`16,161/-
3.	Loss of amenities	`30,000/-
4.	Loss of income during laid up period	`21,000/-
5.	Loss of futureincome	`1,07,520/-
6.	Future medical expenses	`15,000/-
	TOTAL	`2,09,681/-

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Therefore, the appellant is awarded a total compensation of **2,09,681/-** as against the compensation awarded by the Tribunal at 1,05,161/-.

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Hence, the appellant is entitled for an additional compensation of Rs. 1,04,520/- (Rs.2,09,681/- – Rs.1,05,161/-), along with interest at the rate of 6% per annum as awarded by the Tribunal from the date of filing of the petition till realization.

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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 judgment and awarded dated 22.01.2016 passed by the passed by the III Addl. Senior Civil

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Judge & JMFC., Mangaluru, in M.V.C.No.1339/2012 is modified.

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iii) The appellant is entitled for an additional compensation of Rs.1,04,520/- (Rupees One Lakh Four Thousand Five Hundred and twenty only), 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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vi) Draw award accordingly.

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Sd/JUDGE

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Psg*

Sri Dheeraj v. Sri Narayana Nalke

Case brief

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Sri Dheeraj v. Sri Narayana Nalke

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