Partly allowed

Sri E Kumar v. Smt Munilakshmamma

Karnataka HC21 Jun 2023MFA/4165/2012

Case brief

AI extract

What is this about?

High Court enhanced compensation awarded in a motor accident case involving a coolie who suffered amputation of the right leg above the knee, recognizing 100% functional disability and increasing future loss of income medical expenses and other heads.

What did the court decide?

Enhanced compensation of Rs. 11,06,920/- with interest at 6% per annum awarded across multiple heads including future loss of income and medical expenses.

Sri E Kumar Vs Smt Munilakshmamma — Motor Accident Claims | Karnataka HC (2023)

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1 - NC: 2023:KHC:21426 MFA No. 4165 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MISCELLANEOUS FIRST APPEAL NO. 4165 OF 2012 (MV)

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BETWEEN:

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SRI E. KUMAR S/O SRI ELUMALE, 30 YEARS, R/O THINDLU VILLAGE, KODIGE HALLI, BANGALORE NORTH TALUK, AND NOW AT HARIANGUMPPAN, KANALAPADI POST, THIRUVANAMALAI TALUK AND DIST. TAMIL NADU.

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…APPELLANT

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(BY SMT: RAJESHWARI .M.,

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SRI: R.B. SADASIVAPPA, ADVOCATE)

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AND:

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Digitally signed by VIJAYALAKSHMI B N Location: HIGH COURT OF KARNATAKA

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SMT. MUNILAKSHMAMMA W/O SRI NARAYANAPPA, MAJOR, R/A NO. 96, AGBG LAYOUT, BEHIND JANAPRIYA APARTMENTS CHIKKABOMMASANDRA, HESARAGHATTA MAIN ROAD, BANGALORE.

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DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD. DIVISIONAL OFFICER 3, NO. 48, CHURCH STREET, BANGALORE - 01.

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…RESPONDENTS

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(BY SRI. LAXMI NARASAPPA,

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NC: 2023:KHC:21426 MFA No. 4165 of 2012

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SRI: A.M. VENKATESH, ADVOCATES FOR R2.

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NOTICE TO R1 IS D/W V/O DTD 2/9/14.)

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THIS MFA IS FILED U/S 173(1) OF THE MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.03.2011 PASSED IN M.V.C.NO.9363/2007 ON THE FILE OF PRINCIPAL MACT AND CHIEF JUDGE, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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JUDGMENT

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This appeal is filed by the appellant/claimant

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challenging the judgment and award dated 21.03.2011 passed in MVC.No.9363/2007 by the learned Principal MACT and Chief Judge, Court of Small Causes, Bengaluru, seeking for enhancement of compensation.

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Brief facts of the case are that, on 14.10.2006 at about 11.30 p.m., the claimant was standing near Honnenahalli Gate on Bengaluru-Doddaballapur road. At that time, friends of the claimant reached near Honnenahally Gate and stopped their motorcycle in order to talk to the claimant and when they were talking to each

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other, a Tempo Traveler bearing Reg.No.KA-04-B-5289

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3 - NC: 2023:KHC:21426 MFA No. 4165 of 2012

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came in a rash and negligent manner and dashed against the claimant. Due to which, the claimant sustained grievous injuries.

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Heard the arguments from both sides and

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perused the records.

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The Tribunal has awarded the compensation

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under various heads as follows:

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Sl. No.	Head of compensation	Amount/Rs.
1	Injury, Pain and suffering	1,.00,000-00
2	Medical expenditure	3,05,545-00
3	Conveyance Charges	2,000-00
4	Attendant Charges	12,000-00
5	Loss of earning during the period of treatment	24,000-00
6	Loss of future earnings on account of disability	3,19,680-00
7	Future medical expenditure	1,50,000-00
	Total	9,13,225-00

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4 - NC: 2023:KHC:21426 MFA No. 4165 of 2012

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Learned counsel for the appellant submitted

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that the claimant had suffered amputation above the knee of right leg. Therefore, the compensation amount granted by the Tribunal is on the lower side. Hence, prays for enhancement of compensation.

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On the other hand, learned counsel for respondent No.2- Insurance Company justifying the impugned judgment and award passed by the Tribunal, prays for dismissal of the appeal.

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In the present case, from the evidence on record, it is proved that the claimant has suffered amputation of right leg above the knee and other grievous injuries all over the body.

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The quantum of compensation awarded under

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the head "injury, pain and suffering" at Rs.1,00,000/- and under the head "medical expenditure" at Rs.3,05,545/- is found to be just and property. Therefore, same are kept in tact.

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5 - NC: 2023:KHC:21426 MFA No. 4165 of 2012

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The compensation awarded under the heads

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"Conveyance Charges" and "Attendant Charges" at Rs.2,000/- and Rs.12,000/- respectively is found to be on lower side. The injuries sustained by the claimant are so grievous that lead to amputation of his right leg above the knee. Therefore, compensation of Rs.30,000/- is to be awarded under the head " Food/Nourishment/ Conveyance/Attendants etc ", since the claimant was in patient in the hospital for a period of 40 days.

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The accident was occurred in the year 2006 and the Tribunal has held the notional income of the claimant at Rs.4,000/- per month, which is found to be correct and accordingly, compensation of Rs.24,000/- was granted for 6 months under the head "loss of earnings during the laidup period". Hence, the same remains in tact.

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The Tribunal has committed an error in taking the functional disability at 30%, even though the claimant had suffered amputation of his right leg above the knee. The claimant was working as a coolie by profession. The

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work of coolie requires strength, but due to amputation of his right leg, the claimant is certainly not able to do work of coolie and that will definitely results in 100% loss of earning capacity. Physical disability and functional disability are two different aspects. Even though the doctor has deposed that the claimant has suffered 30% of permanent physical disability towards right leg, but the functional disability is to be considered according to the job/profession of the claimant.

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Therefore, if the injured is not able to do the work as he was doing earlier prior to the accident, then that would amount to 100% of functional disability. The Hon’ble Supreme Court in the case of Raj Kumar Vs.

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Ajay Kumar and Another¹ , wherein at Paragraph Nos.12, 13 and 19, it is held as under:

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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

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1 (2011) 1 SCC 343

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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 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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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

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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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Further the Hon’ble Supreme Court in the case

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of Rekha Jain Vs., National Insurance Co., Ltd., and

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Others² was pleased to consider that the injured has suffered 100% of functional disability as the injured was a woman working in a film and a TV actress and was aged about 24 years. The injured has suffered injury on the face and her face was disfigured. The injured is no longer to work in film or as a TV actress and had lost her entire earning capacity as a TV actress. Therefore, the Hon’ble Supreme Court considered it as 100% of functional

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2 (2013) 8 SCC 389

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disability. The principle of law laid down therein is squarely applicable to the case on hand.

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The Hon’ble Supreme Court in the case of Jakir Hussein Vs. Sabir and Others³ was pleased to hold that the permanent disability and functional disability are two different aspects. Even though, there would not be 100% of permanent physical disability, but it affects the avocation of the injured to carry out the profession as he was doing before the accident. Then it would amount to 100% of functional disability. The injured being a driver met with an accident and as per the doctor’s evidence, he suffered 55% of permanent physical disability and cannot drive any motor vehicle in future. Therefore, with such disability, when the driver is not able to carry on the profession as driver, then it is amounting to functional disability and accordingly, awarded compensation by holding functional disability at 100%. Further the Hon’ble

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Supreme Court in the case of Mohan Soni Vs. Ram

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3 (2015) 7 SCC 252

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Avtar Tomar and Others⁴ had held that the injured being a cart-puller met with an accident and left leg was amputated below the knee. Under these circumstances, the Hon’ble Supreme Court held the functional disability at 100%. Since, the injured is not able to work as a cartpuller and had suffered functional disability at 100% and accordingly, awarded compensation.

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The principle of law laid down regarding permanent physical disability and functional disability is applicable in the present case also. There may not be evidence of the doctor that the injured has suffered 100% of permanent physical disability, but the functional disability is to be considered on the basis of nature of injuries sustained, disability occurred and the profession of the injured/claimant. In the present case, the claimant was working as a coolie and due to amputation of right leg above knee, the claimant is not able to work as coolie as he was working earlier. Therefore, he suffered 100% of

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4 (2012) 2 SCC 267

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functional disability affecting the earning capacity. Therefore, it is considered in the present case that the claimant has suffered 100% of permanent physical disability.

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Therefore, as per the law laid down by the Hon'ble Apex Court stated supra, since the claimant in the present case has suffered amputation of right leg above the knee, the functional disability in the present case is held as 100%. The notional income is taken as Rs.4,000/per month as the accident was occurred in the year 2006. As the claimant was aged 25 years at the time of the accident, the appropriate multiplier applicable is "18".

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Since, the claimant has suffered 100% of functional disability, he has suffered loss of future prospects in life. As per the Judgment of the Hon’ble Apex Court in the case of National Insurance Co., Ltd., Vs.

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Pranay Sethi⁵ and the decision of this Court in the case of New India Assurance Company Vs. Abdul S/o

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5 (2017) 16 SCC 680

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12 - NC: 2023:KHC:21426 MFA No. 4165 of 2012

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Mehaboob Tahasildar⁶ , 40% of income is to be added towards future prospects in life. Therefore, the loss of future income due to disability including loss of future

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prospects in life is re-assessed and quantified as follows:

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Rs.4,000 + Rs.1,600 (40% of Rs.4,000)

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Rs.5,600x18x12 = Rs.12,09,600/-

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Accordingly, Rs.12,09,600/- is awarded under the head " Loss of Future Income due to Disability ".

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The compensation awarded under the head 'Future Medical Expenditure" at Rs.1,50,000/- is on the lower side. The claimant needs some amount for future medical expenses for purchasing artificial limb periodically for 4 to 5 years throughout his life. Accordingly, compensation of Rs.2,50,000/- is awarded under the

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head of " Future Medical Expenses ".

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6 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018 DD.27.05.2022

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NC: 2023:KHC:21426 MFA No. 4165 of 2012

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13 -

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The compensation of Rs.75,000/- is awarded

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under the head " Loss of Amenities ".

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Further, compensation of Rs.50,000/- under

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" Loss of Marriage Prospectus " is awarded considering the age of the claimant.

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Thus in all, the appellant/claimant is entitled to

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the compensation as follows:

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Sl. No.	Head of compensation	Amount/Rs.
1	Injury, Pain and suffering	1,00,000-00
2	Medical expenditure	3,05,545-00
3	Food/Nourishment/Conveyance/ Attendant etc.,	30,000-00
4	Loss of Future Income due to disability	12,09,600-00
5	Future Medical Expenses	2,50,000-00
6	Loss of Amenities	75,000-00
7	Loss of Marriage Prospectus	50,000-00
	Total	20,20,145-00

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The Tribunal has awarded compensation of Rs.9,13,225/-, but the appellant/claimant is entitled to total compensation of Rs.20,20,145/- . Hence, the appellant/claimant is entitled to enhanced compensation of Rs.11,06,920/- (Rs.20,20,145 - Rs.9,13,225). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.11,06,920/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal. Accordingly, I proceed to pass the following:

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ORDER

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