Sri Chethan Naik B T Vs Smt Roja T N

THIS MFA IS FILED U/S.173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND AWARD DT.30.12.2022 PASSED IN MVC NO.928/2021 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, PRAYS TO ALLOW THE APPEAL BY ENHANCING THE COMPENSATION, IN THE INTEREST OF JUSTICE.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE B M SHYAM PRASAD AND HON'BLE MR. JUSTICE T.M.NADAF

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE T.M.NADAF)

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This appeal is by the claimant seeking enhancement of compensation arising out of judgment and award dated 30.12.2022 in MVC No.928/2021 passed by the VI District and Sessions Judge at Tumakuru, (‘Tribunal’, for short).

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The parties shall be referred to as per their rankings before the Tribunal for easy reference.

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The date of accident, involvement of the

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vehicle, injury suffered by claimant resulting in paraplegia and liability to pay the compensation are not in dispute. The only dispute is with respect to inadequate compensation awarded by the Tribunal.

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Heard Sri.Shantharaj, learned counsel appearing for the appellant. Sri.P.S.Jagadeesh, learned counsel appearing for respondent No.2. Vide order dated 04.09.2023, notice of this appeal to respondent No.1 is dispensed with.

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HC-KAR

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Sri.K.Shantharaj, taking us through the evidence of PW-2 the Doctor, who has treated the claimant, submits that the appellant had sustained fracture dislocation of T12 L1 resulting in paraplegia. As per the Doctor, the claimant was subjected to surgery on 04.06.2021 of posterior stabilization with decompression and was discharged on 17.06.2021. Doctor on clinical examination conducted on 11.10.2022, found that claimant has no movements in both lower limbs and not able to pass urine or stool on his own and on examination, he has opined that the fracture T12 L1 resulted in paraplegia with implant in situ.

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He further submits that, the Doctor has deposed that the claimant is having 75% disability to the whole body. Though the Doctor has stated 75% disability to the whole body, but due to the fact that he is affected with paraplegia, there is 100% loss of earning capacity. He further asserts that considering the age of claimant i.e., 29 years as on the date of

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HC-KAR

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accident, he has lost all prospectus and comforts in his life and as now he has been confined to bed, requiring an attendant even for his day-to-day activities. Considering his avocation as coolie, with paraplegia, his entire income earning comes to a standstill.

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Sri.K.Shantharaj, further submits that

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though the Doctor has been subjected to length cross-examination, however, nothing worthwhile has been elicitated. With this he submits that the Tribunal has committed a serious error in considering the disability at 35% to the whole body so also the income at Rs.9,000/-. Admittedly, the accident has taken place on 25.04.2021. The claimant has sustained severe injury to T12 L1, resulting in paraplegia. The Tribunal ought to have taken the income fixed under the chart prepared by the Karnataka State Legal Services Authority for the year 2021, which is Rs.15,000/- p.m and the loss of

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HC-KAR

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earning capacity at 100% in view of avocation of claimant i.e., coolie.

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Sri.K.Shantharaj, further submits that the

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Tribunal has not awarded appropriate compensation under all the head, except medical expenses, so also not considered the case of claimant for awarding appropriate compensation under the head loss of marriage prospects. In view of paraplegia, he requires constant attendance even for his day-to day activities, which the Tribunal has missed to award appropriate compensation. With this he sought to allow the appeal and award appropriate compensation.

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Refuting the submission of

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Sri.K.Shantharaj, Sri.P.S.Jagadeesh, submits that the Tribunal, in the absence of any proof of income considered income at Rs.9,000/- p.m and awarded appropriate compensation taking 35% of the disability stated by the Doctor under the head loss of earning capacity. The compensation awarded under all the heads are just and proper, and does not call

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HC-KAR

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for any interference. However, to the query of the Court, learned counsel for the Insurer – respondent No.2 is unable to point out anything in the evidence of PW-2 Doctor, to dislodge that the claimant is suffering from paraplegia.

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Having heard the learned counsel appearing for the parties, perused the entire appeal papers, so also the trial Court records.

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Admittedly, the accident had occurred on 24.05.2021. As per the income under the chart prepared by the Karnataka State Legal Services Authority for settlement before the Lok Adalat for the year 2021 is shown as Rs.15,000/- p.m. The amount fixed under the chart is with respect to unskilled labour. A perusal of record clearly shows that there is no proof with respect to the income at the rate of Rs.25,000/- per month claimed by the claimant. In the absence of proof of income, this Court must consider the income as per the chart, at Rs.15,000/-

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p.m.

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HC-KAR

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The claimant was aged 29 years at the time of accident, suffered severe injuries resulting in paraplegia. The Doctor has clearly opined that with such paraplegia, the total body disability is 75% to the whole body. A perusal of cross-examination, nothing worthwhile elicitated to discredit the evidence of PW-2. The Doctor has denied the suggestion by the insurer that, a false opinion is given with respect to loss of 100% earning capacity. After going through entire material, we are of the considered opinion that though the Doctor has stated 75% disability to the whole body, the same has resulted in loss of 100% in earning capacity in view of paraplegia. Since there is loss of 100% of earning capacity, the appellant is entitled for 40% to be added towards future prospects to the existing income with respect to his age and the proper multiplier applicable is ‘17’.

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Having considered the evidence of the Doctor, the claimant requires an attendant constantly throughout his life, which has to be

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HC-KAR

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compensated by fixing payment of income to the attendant for the service. The reason being the disabled claimant cannot be expected to rely only upon gratuitous services of his well wishers and family members. Owing to his avocation, the expenses for an attendant is required to be fixed at Rs.5,000/- p.m., as bare minimum. The expenses of Rs.5,000/- would amount to Rs.60,000/- annually.

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The same is required to be multiplied by multiplier with the age of claimant which would be ‘17’. That would comes to Rs.5000 x 12 x 17 = Rs.10,20,000/-.

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With the paraplegia, the claimant is

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confined to bed and not in a position to freely walk around and even to do the day-to-day activities. Over a period of time, he may develop bed sours, which requires constant care and dressing. The appellant is on urinary catheter, which requires to be changed once in a fortnight. This situation demands recurring needs for testing, treatment and further hospitalization, which requires considerable

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HC-KAR

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expenses. Keeping in mind the possibilities, a sum of Rs.2,00,000/- requires to be awarded for future

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medical expenses as against Rs.60,000/- awarded by the Tribunal.

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We find force in the arguments of Sri.K.Shantharaj, that the claimant has lost all marriage prospects. The claimant has suffered paraplegia and lost lower body motor control and sensation. This has shattered all his aspiration of marriage, which though may not be compensated in money, but may give some solace. Accordingly, we are of the considered opinion that a sum of Rs.3,00,000/- would be just and proper for loss of future marriage prospects.

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In view of considering the loss of earning capacity at 100%, the claimant is not entitled for any compensation under head loss of earning during treatment as considered by the Tribunal by awarding compensation of Rs.45,000/-. A perusal of compensation awarded under each head by the

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HC-KAR

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Tribunal, when compared to the injuries suffered requires reconsideration, except medical expenses, in addition to the heads under the attendant charges as well as loss of marriage prospects considered and awarded by us supra.

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At this stage learned counsel appearing for insurer submits that the claimant may move on wheel chair and may earn his earnings by doing some other avocation and tried to persuade us by arguing that the loss of earning capacity be considered at 75% as stated by the Doctor and income at Rs.15,000/- as per KSLSA chart, but opposed for 100% and considering addition of future prospects to the existing income. He further submits that the compensation awarded towards attendant charges is excessive.

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Our view towards taking the loss of earning capacity at 100% and adding 40% future prospects so also awarding compensation taking the amount of Rs.5,000/- p.m., bare minimum towards

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HC-KAR

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attendant charges and awarding compensation under future medical expenses gains strength from the judgment of Hon’ble Apex Court in Jithendran Vs. The New India Assurance Company Limited and

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Another¹ . The Hon’ble Apex Court, considered the loss of earning capacity at 100% as against the disability stated at 69% and awarded compensation by adding 40% future prospects with respect to age of the claimant. At paragraph No.8, the Hon’ble Apex Court has opined for awarding compensation towards attendant charges and at paragraph No.9, towards future medical expenses.

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Having considered the entire material placed on record and for the foregoing reasons, the compensation awarded by the Tribunal requires reconsideration.

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1 Civil Appeal.No.6494/2021 Dated:24.10.2021

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HC-KAR

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20. In summary, the total compensation re-

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determined by this Court under various heads is as

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follows:

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Sl.	Heads			Amount
No.
1.	Pain and suffering	:	Rs.	1,00,000/-
2.	Loss of amenities	:	Rs.	1,00,000/-
3.	Nursing, extra nourishment and conveyance	:	Rs.	50,000/-
4.	Loss of future earning capacity (15,000+ 40%x 12x 17)	:	Rs.	42,84,000/-
5.	Medical expenses	:	Rs.	3,18,600/-
6.	Future medical expenses	:	Rs.	2,00,000/-
7.	Loss of marriage prospectus	:	Rs.	3,00,000/-
8.	Attendant charges (5,000x 12x 17)	:	Rs.	10,20,000/-
	TOTAL	:	Rs.	63,72,600/-

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On re-determination, in all the claimant is

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entitled for a sum of Rs.63,72,600/- as against Rs.12,11,200/-. Accordingly, the enhanced compensation works out to be Rs.51,61,400/-, which shall carry interest at the rate of 6% p.a. from the date of petition till realization.

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Accordingly, we proceed to pass the following:

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HC-KAR

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ORDER

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i) The appeal is allowed-in-part ;

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ii) The judgment and award passed by the Tribunal in MVC.No.928/2021, dated 30.12.2022, passed by the VI Additional District and Sessions, Tumakuru, is modified;

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iii) The appellant – claimant is entitled for an additional enhanced compensation of Rs.51,61,400/(Rs.63,72,600 – Rs.12,11,200) along with interest at the rate of 6% per annum from the date of filing of the petition till realization;

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iv) The enhanced compensation amount along with accrued interest supra shall be deposited by the respondent No.2 – Insurance Company, within six weeks from the date of receipt of copy of this order before the concerned Tribunal;

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HC-KAR

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v) Upon deposit, 25% along with accrued interest shall be released in favour of the claimant upon proper identification. Balance 75% along with accrued interest shall be invested in an interest bearing FDR with any Nationalised Bank for a period of 5 years renewable by two terms of three years each.

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vi) The Bank shall not permit any loan on the amount invested without an order by the concerned Tribunal/Court.

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vii) No order as to costs.

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Sd/(B M SHYAM PRASAD) JUDGE

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Sd/(T.M.NADAF) JUDGE

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RR List No.: 2 Sl No.: 17 ct-vn

Sri Chethan Naik B T v. Smt Roja T N

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Sri Chethan Naik B T v. Smt Roja T N

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