Partly allowed

Channappa Alias Kuruba Chennappa Aliyas Kuruba Channa Gouda S/O Kuruba Basanna v. B. C. Shekar Reddy S/O B Govindra Reddy

Karnataka HC19 Jun 2024MFA/100899/2024

Case brief

AI extract

What is this about?

Injured pillion rider with amputation of right leg above knee sought enhancement of motor accident compensation. Court reassessed whole body disability at 80%, functional disability at 100%, added 40% future prospects, awarded amounts for artificial limb, loss of amenities and marriage prospects, enhancing compensation from about ten lakhs to thirty-five lakhs.

What the court decided

AI extract

Channappa Alias Kuruba Chennappa Aliyas Kuruba… — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC-D:8169-DB MFA No.100899 of 2024

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19^TH DAY OF JUNE, 2024

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PRESENT

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THE HON'BLE MR JUSTICE S G PANDIT

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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MISCELLANEOUS FIRST APPEAL NO.100899 OF 2024 (MV-I)

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BETWEEN:

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CHANNAPPA @ KURUBA CHENNAPPA @ KURUBA CHANNA GOUDA S/O. KURUBA BASANNA AGE. 37 YEARS, AGRICULTURIST CUM COOLIE, R/O NO.3-75, BELUGUPPA VILLAGE, ANANTHAPURAMU DISTRICT, A.P., PRESENTLY R/AT. ANDHRAL VILLAGE, TQ AND DIST BALLARI -583101.

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…APPELLANT

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(BY SRI. VIJAYKUMAR KOTIN, ADVOCATE)

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AND:

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B.C. SHEKAR REDDY S/O B. GOVINDA REDDY AGE. 45 YEARS, DRIVER OF THE VENTO CAR BEARING REGN. NO.AP.02/AT.3399 R/O. NO.4-1-654, 6^TH ROAD, ANANTHAPURAMU A.P-515001.

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JAGADISH T R

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Digitally signed by JAGADISH T R Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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K.V. AMARNATH REDDY S/O K.VENKATA RAMI REDDY AGE. 45 YEARS, OWNER OF THE VENTO CAR BEARING REGN. NO.AP.02/AT.3399, R/O NO. 13-2-55, RAMACHANDRA NAGAR, ANANTHAPURAMU, A.P-515001.

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M/S. ORIENTAL INSURANCE COMPANY LIMITED, BY ITS DIVISIONAL MANAGER, BUDA COMPLEX, NEAR NEW KSRTC BUS STAND, BALLARI-583101.

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…RESPONDENTS

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(BY SRI. S.S. KOLIWAD, ADVOCATE FOR R3) (R1 AND R2-NOTICE DISPENSED WITH)

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THIS MFA IS FILED U/S.173 (1) OF MOTOR VEHICLES ACT, 1988, AGAINST JUDGMENT & AWARD DATED 19.10.2023 PASSED IN MVC NO.683/2020 ON THE FILE OF MACT-XII, BALLARI, PARTLY

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NC: 2024:KHC-D:8169-DB MFA No.100899 of 2024

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ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, S G PANDIT J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The claimant-injured is before this Court dissatisfied with the quantum of compensation awarded under judgment and award dated 19.10.2023 in M.V.C. No.683/2020 on the file of learned II Addl. District and Sessions Judge and Member, MACT-XII, Ballari¹ , praying for enhancement of compensation.

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2. The facts in brief are that, the appellant/claimant filed a claim petition under Section 166 of the M.V. Act claiming compensation for the injuries sustained in a road traffic accident that occurred on 04.09.2020 involving Motorcycle bearing registration No.AP-02-AB-8194 and Vento Car bearing registration No.AP-02-AT/3399. It is stated that the claimant was a pillion rider of the said motorcycle and due to accident, he has suffered grievous injuries, which resulted in amputation of his right leg above knee. It is further stated that the appellant/claimant was aged about 35 years as on the date of accident and was earning Rs.2 lakhs per annum from agriculture and Rs.5,000/- per month from coolie work.

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1 ‘Tribunal’ for short

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NC: 2024:KHC-D:8169-DB MFA No.100899 of 2024

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3. Respondent No.3/Insurer appeared through its counsel and filed statement of objections denying the entire averments made in the claim petition. Further, it contended that driver of the offending car was not holding valid and effective driving license as on the date of accident and due to negligent act of the rider of the motorcycle, the accident took place. It also contended that the offending Vento car had no permit and it has violated terms and conditions of policy. Thus, prayed for dismissal of the claim petition.

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4. Before the Tribunal, claimant/appellant examined himself as PW1 and examined doctor as PW3 apart from marking the documents as Exs.P1 to P27. Respondents examined one witness as RW1 and got marked two documents as Ex.R1 & R2. The Tribunal on appreciation of the material on record awarded a total compensation of Rs.10,79,500/- with interest at 6% per annum from the date of petition till date of realization on the following heads:

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Pain and suffering Rs. 30,000/Medical expenses Rs.2,20,000/Food, nourishment, conveyance & attendant charges Rs. 10,000/Loss of future income due to disability Rs.7,92,000/Loss of earning during laid up period Rs. 27,500/- -----------------Total Rs.10,79,500/-

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NC: 2024:KHC-D:8169-DB MFA No.100899 of 2024

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5. While awarding the above compensation, the Tribunal assessed notional income of the claimant/injured at Rs.13,750/- per month, applied multiplier of '16' and assessed the disability of the injured at 30% to the whole body. Not being satisfied with the quantum of compensation, the claimant is before this Court praying for enhancement of compensation.

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6. Heard learned counsel Sri.Vijaykumar Kotin for the appellant and Sri.S.S.Koliwad, learned counsel for respondentInsurer and perused the appeal papers along with original records of the Tribunal.

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7. Learned counsel for the appellant/claimant would vehemently submit that the Tribunal committed a grave error in assessing whole body disability at 30% contrary to the evidence of PW3-doctor, who assessed the permanent physical disability of the injured at 80% to the whole body and 100% functional disability. He further submits that PW3-Doctor has categorically stated that in view of amputation of right leg above the knee, the appellant/injured has suffered 80% disability to the whole body, however, the Tribunal without considering the evidence of PW3-doctor, assessed whole body disability of the injured at 30%, which is on the lower side.

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Thus, learned counsel would pray for assessing whole body disability at 80% as deposed by PW3-doctor and to assess functional disability at 100%, since the claimant was a coolie,

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he would not be in a position carry out coolie work. Learned counsel would further submit that the Tribunal failed to award any compensation on the head of future prospects. It is submitted that the claimant/appellant in view of amputation of his right leg above knee, would not be in a position to do any other work, since he is an illiterate, and therefore, he would be entitled to future prospects. Further, learned counsel would submit that the Tribunal has failed to award any compensation on the head of future medical expenses for purchase of artificial limb and also on the head of loss of amenities. He further submits that the award of compensation by the Tribunal on the other heads is also on the lower side. Thus, he prays for allowing the appeal.

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8. Per contra, learned counsel Sri. S.S.Koliwad for respondent/insurance company supporting the impugned judgment and award of the Tribunal would submit that the quantum of compensation awarded by the Tribunal is just and proper, which needs no interference. Learned counsel would

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NC: 2024:KHC-D:8169-DB MFA No.100899 of 2024

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further submit that even though the claimant/injured has suffered amputation of right leg above knee, he would be in a position to do any work other than coolie work. He further submits that as contended by the learned counsel for the appellant/injured, the claimant has not suffered 100% functional disability. Further, learned counsel would submit that the compensation awarded by the Tribunal on the other heads is just and proper, which also requires no interference. It is further submitted that the claimant would not be entitled to any compensation towards future prospects, since he would be in a position to do any work other than coolie work. Thus, he prays for dismissal of the appeal.

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9. Having heard the learned counsel for the parties and on perusal of the appeal papers including the original records of the Tribunal, the following points would arise for consideration in this appeal:

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a) Whether disability of the injured/appellant assessed by the Tribunal at 30% to the whole body is proper and correct?

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b) Whether the claimant/appellant would be entitled to compensation towards future medical expenses and loss of amenities?

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10. Our answer to the above points would be in the “negative” and “affirmative” respectively for the following reasons.

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11. The occurrence of accident on 04.09.2020 involving Motorcycle bearing registration No.AP-02-AB-8194 and Vento Car bearing registration No.AP-02-AT/3399 resulting in injuries to the claimant is not in dispute. The claimant is before this Court praying for enhancement of compensation. Admittedly, the insurance company has not filed any appeal and it has satisfied the award.

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12. In terms of Ex.P5-Wound Certificate, the claimant has suffered following injuries:

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a) Abrasion over left elbow;

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b) Laceration over right thigh 5 x 1 cm;

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c) Compound fracture of right leg.

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As a result of the aforesaid injuries, the claimant has suffered amputation of right leg above knee. The claimant would not be in a position to carry out his coolie work. Any physical disability resulting from the accident has to be judged with reference to the nature of work being performed by the person, who suffers disability. When a coolie has suffered amputation, he would not be in a position to carryout work,

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which would result in 100% functional disability. The amputation above right knee would not enable the claimant to carryout coolie/labour work as he was doing earlier.

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13. The Hon'ble Apex Court in the case of Rajkumar Vs. Ajay Kumar & Another² has laid down certain guidelines for ascertainment of the effect of permanent disability on the actual earning capacity. The Hon'ble Apex Court in the said judgment at paragraphs-13 and 14 has observed as under:

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13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.

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14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service,

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2 (2011) 1 SCC 343

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the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.” (Emphasis supplied)

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14. The claimant has also placed on record photographs, which would indicate the amputation of right leg above knee and on perusal of the same, we are of the considered view that it would not permit or enable the claimant to do any coolie work which he was doing prior to the accident. Hence, taking into account all these aspects, we deem it appropriate to re-assess the whole body disability of the appellant/injured at 80% and functional disability at 100%.

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15. As regards future prospects, the Hon’ble Apex Court in the case of Sidram Vs. Divisional Manager, United India

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NC: 2024:KHC-D:8169-DB MFA No.100899 of 2024

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Insurance Company limited & Another³ , at paragraph-31

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has held as under:

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“31. It is now a well settled position of law that even in cases of permanent disablement incurred as a result of a motor-accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases – and admits such possibility of future prospects, in case of the victim’s death.

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(Emphasis supplied)

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16. Keeping in mind the enunciation of law laid down by

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the Hon’ble Apex Court in Sidram’s case (supra) and also taking note of the fact that due to amputation of right leg above knee, the claimant is not in a position to do any work as he was doing earlier, we are of the considered view that the appellant/claimant would be entitled to addition of 40% of the assessed income towards future prospects, since he is below the age of 40 years.

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3 (2023) 3 SCC 439

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17. The Tribunal assessed notional income of the injured at Rs.13,750/- per month, which is in tune with income chart prepared by KSLSA and same does not call for interference. The Tribunal adopted multiplier of 16, which also needs no interference. Thus, the claimant would be entitled to compensation on the head of loss of earning capacity at Rs.29,56,800/- (Rs.13,750 (income) + 40% (future prospects) X 12 (months) x 16(multiplier) x 80% (disability).

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18. The Tribunal has failed to award any compensation towards future medical expenses. As the claimant has suffered amputation of right leg above knee, he may require artificial limb. Hence, it is just and proper to award a sum of Rs.1,00,000/- towards future medical expenses for purchase of artificial limb. The Tribunal has also failed to award any compensation on the head of loss of amenities. Since the appellant has suffered amputation of right leg above knee, we deem it just and appropriate to award a sum of Rs.1,00,000/- towards loss of amenities. Due to amputation of right leg above knee, the claimant has lost marriage prospects. Hence, on the said head, a sum of Rs.75,000/- is awarded.

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19. Taking note of the injuries sustained, treatment

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taken and operational sufferance, the amount awarded under the head of pain and suffering at Rs.30,000/- is on the lesser

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side and same is enhanced to Rs.60,000/- . The award of compensation by the Tribunal on the other heads is just and reasonable and does not call for interference. Thus, claimant

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would be entitled to modified compensation as under:

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Sl.No.	Particulars	Amount
1.	Pain & suffering	Rs. 60,000/-
2.	Medical expenses	Rs. 2,20,000/-
3.	Food, nourishment, conveyance, & attendant charges	Rs. 10,000/-
4.	Loss of income during laid-up period	Rs. 27,500/-
5.	Loss of future income due to disability	Rs.29,56,800/-
6.	Future medical expenses for purchase ofartificial limb	Rs. 1,00,000/-
7.	Loss of marriage prospects	Rs. 75,000/-
8.	Loss ofamenities	Rs. 1,00,000/-
	Total	*Rs.35,49,300/-*

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20. Thus, the appellant/claimant would be entitled to total compensation of Rs.35,49,300/- as against

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Rs.10,79,500/- awarded by the Tribunal.

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21. Hence, we pass the following order:

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ORDER

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a) The appeal is allowed in part .

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b) The impugned judgment & award of the Tribunal is modified to an extent that the

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appellant/claimant would be entitled to total compensation of Rs.35,49,300/- as against Rs.10,79,500/- awarded by the Tribunal.

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c) The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till date of payment.

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d) Respondent-Insurance Company shall deposit the enhanced compensation amount along with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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