Abhishek S M @ Abhishek Gowda Vs Kiran Kumar T

V/O DATED 17.11.2023 NOTICE AS AGAINST R1 IS D/W) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.06.2016 PASSED IN MVC NO.458/2014 ON THE FILE OF THE 4TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN DISTRICT, (SIT AT CHANNARAYAPATNA) PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR HEARING, 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 G BASAVARAJA

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HC-KAR

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE B M SHYAM PRASAD) The appellant has met with a road accident as a

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15 year old X Standard student on 29.07.2013 when he was travelling on the pillion of a motorbike. The appellant is partly successful in his claim petition under Section 166 of the Motor Vehicles Act, 1988 [for short, 'the MV Act'] in M.V.C. No.458/2014 on the file of the IV Additional District and Sessions Judge, Hassan District [sit at Channarayapatna] [for short, ' the Tribunal ']. The Tribunal, as against a claim for compensation in a sum of Rs.75,00,000/-, has awarded Rs.7,80,000/- with interest at 8% per annum under the following heads:

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Towards Pain suffering	_Rs.2,00,000/- _
Towards Medical Expenses	_Rs.2,15,000/- _
Towards Conveyance,	Rs.1,00,000/-
Nourishing food, diet, attendant charges,
transportation etc.
Towards Loss of future income and earning capacity	Rs.90,000/-
Towards Physical Disability	_Rs.50,000/- _
Towards Loss of marriage prospect	Rs.50,000/-

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HC-KAR

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Towards Loss of amenities	_Rs.50,000/- _
Towards Rest of the above noted heads	Rs.25,000/-
Total	_Rs.7,80,000/- _

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The appellant has suffered multiple fracture injuries in the left forearm and lower limb with injuries in the head. He has undergone treatment in different hospitals for his head injury, fracture of the left femur, tibia, fibula and calcaneum with crush injury of that foot. The appellant has also suffered a fracture of the left radius. There is no dispute about the accident or the Insurer9s liability, and in the present appeal, the appellant seeks an enhancement in the compensation. Dr. B. S. Jayaram, who has conducted the initial surgery with M/s. Unity Life Line Hospital, Bengaluru, is examined as PW3. The Doctor, while speaking about the appellant being hospitalized between 24.08.2013 and 22.09.2013 for external fixator, has spoken about the appellant undergoing further procedures for removal of these fixator with

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HC-KAR

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KIMS Hospital. The Doctor has also spoken about the appellant being in a coma for fifteen days of his hospitalization with M/s. Unity Life Line Hospital and receiving treatment from Neurosurgeons attached to the Hospital.

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Dr. B. S. Jayaram has been cross-

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examined but the efficacy of his evidence on injury suffered and the disability that has persisted in the appellant because of the injuries are not in any manner undermined. The Doctor is categorical in opining that on re-examination of the appellant in February 2016, he has observed there is malunion of the fractured bones in the left foot while stating that the fracture in the right and the left hand wrist has healed well. The appellant has not examined the Neuro Physician Surgeons who have attended on him as spoken to by this Doctor, but he has examined another Doctor.

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HC-KAR

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4. Dr. Abdul Basheer, Orthopaedic Surgeon,

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who is examined as PW.2, has spoken about the appellant's initial hospitalization until 13.08.2013 and examining the appellant in January 2016 for assessment. The Doctor, after a detailed reference to the injuries and the resultant loss of flexibility and muscle loss, has opined that the appellant has suffered a disability of 20% in the left upper limb and disability of 40% in the left lower limb. The Tribunal, in the light of this evidence has opined that the appellant has suffered a disability of 20% and computed compensation towards Loss of Future Earning capacity in a sum of Rs.90,000/- taking the annual income of the appellant at Rs.30,000/- and applying the multiplier of 15.

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Mr. R. P. Somashekaraiah, the learned

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counsel for the appellant, submits that this Court must interfere with the Tribunal's findings on the assessment of disability, the appellant's income and

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the multiplier, while emphasizing that this Court must also award compensation with addition towards loss of future prospects. The learned counsel emphasizes that (i) the appellant has suffered mentally as also physically, (ii) the appellant could not pursue his education beyond X Std because of the injuries and (iii) the appellant, who has suffered loss of memory and received constant treatment, even now requires everyday dressing of the left foot

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Mr. R. P. Somashekariah proposes to rely upon certain documents presented as additional documents along with an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908, but the learned counsel cannot bring on record any material which would ex-facie connect the observations as found in the additional documents with the impact of these injuries suffered by the appellant. It was imperative for the appellant to place on record materials that would justify a consideration

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HC-KAR

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of those documents, especially when they are of the year 2020 and the accident is of the year 2013. Therefore, this Court is not persuaded to opine that

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the appellant's case for enhancement in compensation towards Loss of Future Earning Capacity must be based on these additional documents.

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Mr. B. Pradeep, the learned counsel for the Insurer, is heard on:

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Whether there must be an enhancement in the compensation towards loss of future earning with re-computation of the appellant's permanent disability taking a higher income and applying multiplier other than 15 .

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Dr. Abdul Basheer [PW-2] has opined that the appellant has suffered malunion of the fractures in the foot and therefore continues to suffer even today with substantial difficulties. The appellant, as

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of the date of the accident, was 15 years old and only a student of X Standard. The appellant's case that he could not continue his education because of the injuries suffered is not in serious contest. This Court, based on the appellant9s permanent disability suffered and the loss of educational opportunity, must assess functional disability so that just and reasonable compensation is awarded.

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The Tribunal has only assessed disability in the wrist and has overlooked the disability in the left lower limb. As aforesaid, the Doctors have opined that there is a disability of 40% in the lower limb. If the appellant has a disability both in the upper and the lower limbs as spoken about by the Doctors over 60% and the appellant has suffered disablement impeding his continuation of education, this Court must find that there is a substantial reduction in his functional ability. According to the schedule in the Employee's Compensation Act, 1923 on the

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percentage of disablement whenever there is the loss of a particular limb, especially when there is amputation below knee, the disability is taken at 50%. For awarding just and reasonable compensation under this Act, the appellant9s functional disability is taken at 50%.

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The appellant, admittedly, was pursuing X Standard when he met with an accident. If he had not suffered the injuries and the consequential disablement as observed earlier, it is reasonable to infer that he would have definitely earned, in the least, as a skilled labourer. In the case of an unskilled person9s claims when the accident is in the year 2013 and there is no proof of actual income, Rs.8,000/- per month is taken as the notional according to the Schedule evolved for settlement in Lok Adalat. This Court finds that it will be appropriate to take this income as the notional

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HC-KAR

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income of the appellant for computation of loss of future earnings.

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There must be an addition towards future prospects, and because the appellant was aged 15 years, the addition towards future prospects will be 40%. The next aspect that must be considered is the multiplier that must be. It cannot be gainsaid that it is settled that the multiplier for a person who is over 15 but below 18 years would be '18'. This multiplier must indeed be taken. If a loss of future earning capacity is computed with these parameters, the appellant will be entitled to a sum of Rs.12,09,600/- as against Rs. 90,000/- awarded by the Tribunal. The computation of the award under

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this amount is thus.

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MonthlyIncome	Rs.8,000/-
Addition towards Future	40%
prospects
Annual Income with future prospects - [Rs.8000/-x40%] X 12	Rs.1,34,400/-
Percentage of Disability	50%
Multiplier	18

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HC-KAR

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Loss of future income Rs.12.09,600/- Amount awarded by Tribunal Rs.90,000/-

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Mr. R. P. Somashekaraiah next canvasses

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for an increase in compensation towards (i) conveyance, nourishment, food diet, attendant charges and transportation, (ii) loss of marriage prospects and (iii) loss of amenities. The Tribunal has granted Rs.1,00,000/- towards the first head and Rs.50,000/under the other two heads. Mr. M. Pradeep submits that the Tribunal has

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granted adequate compensation under these heads, and there may not be any enhancement. The learned counsel invites this Court's attention to the award towards (i) physical disability [ apart from loss of amenities ], (ii) pain and suffering and (iii) an additional sum of Rs.25,000/- under the heading Rest of the Heads.

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These rival submissions are also

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considered. It is sufficiently brought on record that the appellant, who was in Coma and has suffered

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HC-KAR

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crush injuries in the left foot with malunion of fractures in the left limb, will have to carry an aggravated residual difficulty affecting his everyday life. In fact, one of the grounds urged on behalf of the appellant is that he requires even today, everyday dressing and the parents have to incur more than Rs.20,000/- per month towards such expenses and that the appellant's marriage prospects are severely impaired.

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On a careful consideration of these circumstances, this Court is of the opinion that the compensation towards conveyance, nourishment and transportation must be in a sum of Rs.2,00,000/- as against Rs.1,00,000/and Rs.1,00,000/each towards loss of marriage prospects and loss of amenities as against Rs.50,000/- awarded under each of these heads. The appellant, with this enhancement, would be entitled for enhanced compensation in a sum of Rs.12,69,600/- which is

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HC-KAR

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brought out by the comparative table of the amounts

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awarded by the Tribunal and as decided by this

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Court.

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*Description*	By the Tribunal	By this Court
Pain and Suffering	Rs.2,00,000/-	Rs.2,00,000/-
Medical Expenses	Rs.2,15,000/-	Rs.2,15,000/-
Towards Conveyance, Nourishment and Transportation etc.,	Rs.1,00,000/-	Rs.2,00,000/-
Loss of Future Income	Rs.90,000/-	Rs.12,09,600/-
Loss of Marriage Prospect	Rs.50,000/-	Rs.1,00,000/-
Loss of Amenities	Rs.50,000/-	Rs.1,00,000/-
"Rest of the above noted heads"	Rs.25,000/-	Rs.25,000/-
Total	Rs.7,80,000/-	Rs.20,49,600/-
Enhanced		Rs.12,69,600/-

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Hence, the following:

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ORDER

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a. The appeal is allowed in part.

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b. The impugned Order and Award dated 21.06.2016 is modified granting

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enhanced compensation in a sum of

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Rs.12,69,600/- along with interest at the rate of 6% per annum from the date of the petition till the date of deposit.

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c. The Insurer shall deposit the enhanced compensation with interest as aforesaid from the date of the petition till the date of deposit within eight [8] weeks from the date of receipt of a certified copy of this order.

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d. The Registry is directed to transmit the records expeditiously.

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Sd/(B M SHYAM PRASAD) JUDGE

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Sd/(G BASAVARAJA) JUDGE

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RB

Abhishek S M @ Abhishek Gowda v. Kiran Kumar T

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Abhishek S M @ Abhishek Gowda v. Kiran Kumar T

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