Partly allowed

Nagaraj S/O Thimmanna Pulapeta v. Suryappa S/O Shyamappa

Karnataka HC27 Oct 2023MFA.CROB/100049/2016

Case brief

AI extract

What is this about?

The High Court modified the Motor Accident Claims Tribunal award, holding the insurance company liable to pay Rs. 23,09,600 plus interest. The Court upheld the claimant's involvement of an auto-rickshaw in the accident and assessed 100% functional disability, recalculating compensation based on income and future earning capacity.

What did the court decide?

Compensation of Rs. 23,09,600 plus 6% interest per annum from filing date to realization; insurance company to deposit amount within 8 weeks.

Nagaraj S/O Thimmanna Pulapeta Vs Suryappa S/O Shyamappa — Medical Negligence | Karnataka HC (2023)

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NC: 2023:KHC-D:12611 MFA.CROB No. 100049 of 2016 C/W MFA No. 20415 of 2012

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 27^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR

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MFA CROB NO.100049/2016 (MV) C/W

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MISCELLANEOUS FIRST APPEAL NO.20415/2012 (MV)

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IN MFA.CROB.NO.100049/2016:

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BETWEEN:

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NAGARAJ S/O. THIMMANNA PULAPETA, AGE: 35 YEARS, OCC: SUPERVISOR IN VIKAS TRANSPORT GOA, NOW NIL,

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R/O: MAHALAKSHMI COLONY, HUBBALLI.

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…CROSS OBJECTOR

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(BY SRI HANUMANT R. LATUR, ADVOCATE)

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AND:

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SURYAPPA S/O. SHYAMAPPA,

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Digitally signed by VIJAYALAKSHMIM KANKUPPI VIJAYALAKSHMIM KANKUPPIDate: 2023.12.12 13:23:49 +0530

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AGED ABOUT 39 YEARS, OCC: DRIVER CUM OWNER OF GOODS AUTO BEARING REG NO.KA-17/A-451, R/O: THIMMALAPUR VILLAGE, HARIHAR TALUK, DAVANGERE DISTRICT.

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THE MANAGER,

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THE NEW INDIA ASSURANCE CO. LTD., WALI COMPLEX, I FLOOR SHIMOGA ROAD, HARIHAR-577601.

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…RESPONDENTS

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(BY SRI G. N. RAICHUR, ADVOCATE FOR R2; SRI BALAGOUDA A. PATIL, ADVOCATE FOR R1)

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THIS MFA CROSS OBJECTIONS IN MISCELLANEOUS FIRST APPEAL NO.20415/2012 FILED UNDER ORDER XLI RULE 22(1) OF CIVIL PROCEDURE CODE, PRAYING TO ALLOW THE APPEAL AND MODIFY THE JUDGMENT AND AWARD IN MVC NO.185/2007 DATED 08.12.2011 PASSED BY THE LEARNED THE FAST TRACK JUDGE AND

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MOTOR ACCIDENT CLAIMS TRIBUNAL RANEBENNUR UNDER ALL PERMISSIBLE HEADS.

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IN MFA.NO.20415/2012:

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BETWEEN:

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THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, WALI COMPLEX, I FLOOR, SHIMOGA ROAD, HARIHAR – 577 601 REPRESENTED BY ITS ASST. MANAGER, REGIONAL OFFICE, TP-HUB, II FLOOR, SRINATH COMPLEX, NEW COTTON MARKET, HUBBALLI – 580 029.

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…APPELLANT

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(BY SRI G.N.RAICHUR, ADVOCATE)

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AND:

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SRI NAGARAJ S/O. THIMMANNA PULAPETA, AGE: 30 YEARS, OCC: SUPERVISOR IN VIKAS TRANSPORT GOA, R/O: MAHALAKSHMI COLONY, HUBBALLI, DIST: DHARWAD.

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SRI SURYAPPA S/O. SHYAMAPPA, AGE: 34 YEARS, OCC: DRIVER CUM OWNER OF GOODS AUTO BEARING NO.KA-17/A-451, R/O: THIMMALAPUR VILLAGE, TQ: HARIHAR, DIST: DAVANGERE.

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…RESPONDENTS

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(BY SRI HANAMANT R. LATUR, ADVOCATE FOR R1; SRI BALAGOUDA A. PATIL, ADVOCATE FOR R2)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS HEAR THE PARTIES AND SET ASIDE THE JUDGMENT AND AWARD DATED 08.12.2011 IN MVC NO.185/2007 PASSED BY THE FAST TRACK JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, BY ALLOWING THIS APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.

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THESE APPEAL AND MFA CROB, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

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MFA Crob. No.100049/2016 is filed by the claimant

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seeking for enhancement of compensation.

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MFA No.20415/2012 is filed by the insurance company questioning the liability fixed on the insurance company on the ground that offending vehicle auto rickshaw was not involved in the accident also on the ground that even if auto rickshaw is held involved in the accident, but driver did not have driving license and also requested for reducing quantum of compensation.

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It is the case of the claimant that on 03.09.2006, the claimant along with his friend as pillion rider on the motorcycle bearing No.KA-35/L-1786 was going from Ranebennur to Hubballi and at that time, auto rickshaw bearing No.KA-17/A-451 came from behind with high

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speed and in rash and negligent manner dashed the motor cycle, due to which claimant had sustained grievous injuries. Hence, filed claim petition under Section 166 of M.V. Act. The tribunal has granted compensation and fixed

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the liability on the insurance company to pay the compensation.

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Heard the learned counsel for the parties and perused the material available on record.

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The learned counsel for the appellant-insurance company submitted that auto rickshaw bearing No.KA17/A-451 was not involved in the accident and is falsely implicated into the case. Claimant as well as complainant did not know the number of the auto rickshaw and name of it’s driver and the complainant has identified auto rickshaw and driver in the Police station which was already brought to the police station. Therefore, the evidence of claimant is not believable. Further, submitted that there is no evidence that how the police have traced the auto rickshaw and there is no cogent reason that this is the offending vehicle which has caused accident. Therefore, submitted that auto rickshaw is falsely implicated into the

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case for the purpose of claim. Further, submitted that the driver of the auto rickshaw was not holding driving license.

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Hence, the insurance company is not liable to indemnify the owner. Also argued on the quantum that the Tribunal without any bases has held the income of the claimant as Rs.8,000/- per month. Hence, alternatively prays to reduce the quantum of compensation and prays to allow the appeal.

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On the other hand, learned counsel for the claimant – cross objector submitted that in the complaint given on 04.09.2006, it is clearly mentioned that three wheeler vehicle dashed the motorcycle. The driver of the three wheeler vehicle after hitting the motorcycle ran away. Therefore, quite naturally, the registration number of the auto rickshaw could not be noted down. But, the nature of vehicle is mentioned in the complaint as three wheeler. Also, from medical evidence on record, it is proved that the claimant was admitted to the hospital on 03.09.2006 with history of road traffic accident. Therefore, this probablize that auto rickshaw No.KA-17/A-451 is involved in the accident and claimant has sustained injuries in the

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said motor vehicle accident and this is what rightly considered by the tribunal. Hence, prays to dismiss the appeal of the insurance company and also prays for enhancement of compensation on the ground that the claimant has suffered amputation of left leg above the knee, which amounts to 100% functional disability. Therefore, prays for enhancement of compensation.

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Ex.P1 is the FIR; Ex.P2 is the complaint given by the pillion rider of the motorcycle. In the complaint, it is alleged that on 03.09.2006, when the claimant being a rider and the complainant was a pillion rider was proceeding on the motorcycle hit by the three wheeler vehicle from behind and said vehicle ran away. The complaint is lodged on 04.09.2006. It cannot be said that there is a delay in lodging the complaint. Soon after the accident, the paramount thing is to give medical aid to the injured person rather lodging prompt complaint before the Police. Therefore, considering the fact that the accident had occurred on 03.09.2006 and complaint lodged on

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04.09.2006, it cannot be said that there is a delay in lodging the complaint.

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In the complaint itself, the nature of offending vehicle

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is mentioned as three wheeler vehicle. Ex.P3 is the statement given before the police on 09.09.2006 stating that he identified the auto rickshaw and also the driver of auto rickshaw which was brought to the police station. Just because, the complainant has identified the auto rickshaw and its driver in the police station, cannot be a ground to reject his evidence. Complainant has already given complaint before the police and based on that during the course of investigation, the police have seized the auto rickshaw. In this regard, the evidence ought to be considered on the principles of preponderance of probabilities by not adopting beyond reasonable doubt.

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In Ex.P3, it is stated that on 09.09.2006, the accident was occurred but in Ex.P5-statement given on 09.09.2006

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by the claimant, he has stated that on 03.09.2006, the accident was caused. Therefore, in Ex.P3 the date of

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accident is mentioned as 09.09.2006 s might have been due to in advertently. Further, in the wound certificate, discharge summery, it is mentioned that the claimant was admitted to hospital with history of road traffic accident that occurred on 03.09.2006. Therefore, when all these evidence are considered on the theory of preponderance of probabilities, the accident was caused and the claimant

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was admitted to hospital with history of road traffic accident that occurred on 03.09.2006 and the auto rickshaw bearing No.KA-17/A-451 is involved in the accident at very initial point of time, the nature of vehicle as three wheeler is mentioned. When all these evidence are available for proving the factum of accident and involvement of the vehicle, then, just because in Ex.R2 IMV report, if it is mentioned that auto rickshaw is not damaged, it is not going to prove that auto rickshaw is not involved in accident. Admittedly, the auto rickshaw hit the motorcycle from behind. When the auto rickshaw has hit the motorcycle from behind there are less chances of causing damage to auto rickshaw. Therefore, in this

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context, there could not be noticeable damages to the auto rickshaw. Therefore, in Ex.R2-IMV report, if damages to auto rickshaw is not seen that cannot be a reason to

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hold that auto rickshaw is not involved in the accident.

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Therefore, by assigning of reasons and appreciating evidence on record as discussed above, it is proved that auto rickshaw bearing No.KA-17/A-451 was involved in the accident.

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The learned counsel for the cross objector filed an application under Order 41 Rule 27 of CPC along with driving license extract of the driver of the auto rickshaw, which shows that the driver was holding driving license to drive three wheeler auto rickshaw prior to the accident. Therefore, this application is allowed and considered and the driving license is considered which proves that driver was holding driving license as on the date of accident.

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In the present case, the claimant has sustained following injuries due to accident:

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“Amputation of left leg above knee, bone deep CLW over upper 1/3^rd outer part of the left leg 4 cm X 4cm with exposure of bones, comminuted fracture of upper end of tibia, fracture of upper end of fibula and increased soft tissues shadow noted in upper 1/3^rd of left leg, lacerated wound on exterior aspect of left leg measuring 7cms X 3 cms and under gone surgeries.”

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The claimant was aged 26 years old at the time of accident from the medical evidence on record. It is proved that the claimant had suffered amputation of left leg above the knee. Ex.P.17 and 18 are photographs showing that the claimant had suffered amputation of left leg above the knee. Therefore, it is proved that claimant has suffered amputation of left leg above the knee. The tribunal only considered 30% as functional disability is not correct. It is stated that claimant was working as a supervisor in the transport company.

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Ex.P21 is salary statement stating that claimant was working in the transport company and PW.2 is proprietor

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of transport company deposed that the claimant was working in his transport company. The said Ex.P21-salary statement was issued on 09.08.2006 prior to the accident. In the said certificate, it is mentioned that the salary certificate issued at the request of claimant to produce for personal loan purpose. The PW.2 has admitted in the cross examination that the said certificate is issued to the claimant for benefit to avail loan from the bank. Therefore, this certificate is issued prior to the date of accident for the purpose of availing bank loan. However, the gross salary shown as Rs.8,000/- per month is mentioned for the benefit of availing loan and considering that the accident occurred on 2006 and the claimant was working as supervisor in transport company at Goa State then at that time the claimant at least was receiving salary of Rs.6,000/- per month and accordingly salary of Rs.6,000/is held.

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The claimant being supervisor has suffered amputation of left leg. The claimant might not have

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produced document to show the injuries but looking to the nature of job of the claimant is in Transport Company which is not of permanent nature. With amputation of left leg and that too in other State performing work as a supervisor in transport Company is difficult one. Therefore, complainant might have been constrained to leave the job.

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The Hon’ble Supreme Court in the case of Raj Kumar Vs. 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 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

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1 (2011) 1 SCC 343

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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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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

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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 following cases was pleased to consider that the injured has suffered 100% of functional disability:

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Rekha Jain Vs. National Insurance Co., Ltd., and Others²

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Jakir Hussein Vs. Sabir and Others³

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Mohan Soni Vs. Ram Avtar Tomar and Others⁴

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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

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2 (2013) 8 SCC 389

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3 (2015) 7 SCC 252

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4 (2012) 2 SCC 267

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considered on the basis of nature of injuries sustained and the profession of the injured/claimant.

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Therefore, it is proved that the claimant had suffered 100% functional disability affecting his earning capacity for the reason as stated above, since he has suffered amputation of left leg above the knee.

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Since, the claimant had suffered 100% disability. Therefore, judgment of Hon’ble Supreme Court in the case of New India Assurance Company vs. Abdul S/o Mehaboob Tahasildar⁵ and Sidram vs. Divisional Manager, United India Insurance Company Limited and another⁶ , 40% of income is added towards loss of future prospects in life by following the guidelines issued by the Hon’ble Supreme Court in the case of National

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Insurance Company Limited vs. Pranay Sethi and

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others, reported in (2017) 16 Supreme Court Cases

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5 MFA.No.103807/2016 C/w MFA Nos.103835/2016 & 103807/2018 dated 27.05.2022

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6 (2023) 3 SCC 439

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680, even in the case of injuries, certain income is to be added towards loss of future prospects in life.

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The accident is caused in the year 2006. As held above, the claimant was working as supervisor. Hence, Rs.6,000/- per month income is to be taken into consideration. The claimant was aged 26 years at the time of accident. Therefore appropriate applicable multiplier is

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Hence, loss of future income due to disability is hereby reassessed and quantified as

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Rs.6,000+2,400 (40% of Rs.6,000)X17X12 =

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Rs.17,13,600-00.

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Further, compensation of Rs.1,00,000/- is awarded under the head injuries, pain and suffering.

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Compensation of Rs.2,99,000/- awarded under the

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head medical expenses is as per bill and receipts and the same is kept intact.

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Further, compensation of Rs.72,000/- is awarded under the head loss of income during the laid up period for one year.

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Further, compensation of Rs.75,000/- is awarded under the head loss of amenities.

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Further, compensation of Rs.50,000/- is awarded under the head incidental charges.

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The claimant certainly needed artificial limb for which he constrained to spend certain amount. Accordingly, Rs.50,000/- is awarded towards future medical expenses including purchasing of artificial limb to the left leg.

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Thus, the claimant is entitled for total compensation under various heads as under:

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Sl.	Heads.	Amount in (Rs.)
No.
1.	Towards injuries, pain and suffering.	1,00,000-00
2.	Towards medical expenses.	2,99,000-00
3.	Towards loss of amenities.	75,000-00

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Towards loss of income 72,000-00
during laid up period and
medical treatment period.
5. Towards incidental charges 50,000-00
like attendant charges,
food, nourishment,
conveyance, etc.,.
6. Towards loss of future
17,13,600-00.
earning capacity due to
disability.
Total: 23,09,600-00

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Therefore, the claimant is entitled for total compensation of Rs.23,09,600-00, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.9,18,000-00 awarded by the Tribunal. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.

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