IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 04 T H DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S. SANJAY GOWDA
M.F.A.NO.20779/2012 (MV)
BETWEEN :
Smt.Boya Ramanjinamma
W/o B. Nag araju,
Aged about 24 Years,
R/o Gandhi Bhavan,
Royal Bus stand,
Bellary.
..... Appellant
(By Shri Y. Lakshmikant Reddy Adv.)
AND :
1. K. Vikram Simha Reddy
S/o. K.T. Thippa Reddy,
Aged about 49 Years,
Owner of the Tractor Trolly
Bearing Reg.No.AP-02/E-9437 &
E-9438, R/o. D.No.4/175,
Ayodhya, Kanekal Villag e &
Mand alam, Ananthapur District,
A.P.
2. ICICI Lombard General Insurance
Co.Ltd., D.No.37 L, I Floor,
Besid e Balaji Hote, Bellary Road ,
Kurnool, And hra Pradesh.
..... Respondents
(By Shri S.K.Kayakamath Adv. For R.2 : Notice to R1 is
dispensed with)
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This Miscellaneous First Appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 06.03.2010 passed by the
Motor Accident Claims Trib unal-IX, Bellary in
MVC.No.12/2009 and p ass such other order or ord ers as
this Hon'ble Court deems fit in the circumstances, in
the interest of justice and equity.
This appeal coming on for ad mission, this day, the
court d elivered the following:
: JUDGMENT :
The claimant, is in appeal, being dis-satisfied with the compensation of Rs.4,04,000/- awarded to her for an accident she suffered on 05.06.2008 while she was traveling in an auto rickshaw which had collided with a tractor.
2. As a result of the collision, the claimant lost her right fore arm at the spot of the accident itself and she also sustained other grievous injuries. She therefore filed a claim petition and sought for compensation.
3. The claim petition was opposed by both the owner and the Insurance Company.
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4. The insurance company though admitted the liability, denied the entitlement of the claimant.
5. The Tribunal on consideration of the evidence adduced before it came to the conclusion that a motor vehicle accident did occur on 05.06.2008 and the said accident was due to the rash and negligent driving by the driver of the Tractor and as a result of the accident, the claimant had lost her right fore arm.
6. The Tribunal thereafter proceeded to assess the compensation and determined that, the claimant was entitled to the compensation on the following heads.
Sl. Amount in
Particulars
No. Rs.
1 Pain and suffering. 50,000/-
2 Towards Medical Expenses. 10,000/-
3 Towards attendant Charges. 6,000/-
4 Towards nursing and 3,000/-
nourishment charges.
5 Loss of earning during the 6,000/-
treatment period.
6 Compensation towards loss of 3,24,000/-
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future earnings.
7 Compensation towards loss of 5,000/-
amenities.
TOTAL 4,04,000/-
7. Learned counsel appearing for the appellant contends that the Tribunal has committed a basic error in determining the income of the claimant at only Rs.3,000/- per month. He also submits that, having regard to the decision of the Hon'ble Supreme Court in the case of Mohan Soni Vs. Ram Avtar Tomar and others reported in 2012 ACJ 583, which has been followed by the Division Bench of this Court in MFA.No.23417/2013 C/w MFA.No.20844/2013 (MV), the percentage of disability ought to have been taken as 90% instead of 50%. He also submits that, the sums awarded towards pain & suffering and loss of amenities is on the lower side and deserves to be enhanced substantially. He also submits that the Tribunal has committed an error in not awarding any compensation towards loss of enjoyment of marital life. He submitted since the claimant was only 22 :5: years as on the date of the accident, she was entitled to compensation on that account also.
8. On the contrary, learned counsel appearing for the Insurance Company contended that the sums awarded by the Tribunal was just and necessary and did not call for any enhancement.
9. It is not in dispute that, the claimant was aged only 22 years as on the date of accident. The Tribunal has come to the conclusion that, a notional income of Rs.100/- per day would be just and reasonable for the purpose of computing compensation. In my view, this reasoning of the Tribunal cannot be sustained, because, even according to the sums determined by the Karnataka State Legal Services Authority for the purpose of determination of compensation in Lok-Adalaths, for an accident of the year 2008, the monthly income of victim is taken at Rs.4,250/- per month. I therefore deem it proper to consider notional income of the :6: claimant at Rs.4,250/- per month as against Rs.3,000/- per month determined by the Tribunal.
10. As regards the percentage of disability, though the Doctor opined that the claimant had a partial permanent disability of 70%, the Tribunal has come to the conclusion that the percentage of disability could be considered only at 50% of the whole body.
11. Learned counsel appearing for the Insurance Company contended that, the percentage of disability will have to be taken into consideration in the background of the fact that, for an employee under the Employees Compensation Act, the loss of earning capacity is assessed at only 70% in respect of amputation up to the elbow joint and since in the instant case, the claimant's right fore arm was amputated till the elbow joint, the percentage of disability and the consequential loss of earning capacity would have to be taken only at 70%. :7:
12. The Hon'ble Apex Court in the case of Mohan Soni (Supra), while considering the case of amputation of a victim, who was a farmer suffered amputation of one of his legs has held that, the loss of earning capacity could be as high as 100% but in no case could be less than 90%. In the said Case, the Hon'ble Supreme Court held as follows:
"The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effect on one's personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle rickshaw-puller"
(underlining by me)
13. This principle laid down by the Hon'ble apex Court has been followed by the Hon'ble Division Bench of our High Court in MFA.No.23417/2013 (MV) C/w MFA.No.20844/2013 (MV) and also in MFA.No.
102566/2018 (MV).
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14. In my view, the loss of right fore arm for a 22 year old, would definitely be traumatic not only for herself but also to her entire family and since she was working as a coolie, her prospects of earning would decrease virtually 100%. It is common knowledge that, an handicapped person especially one without a right fore arm would not be offered any gainful employment. I therefore deem it proper to follow the principles laid down by the Apex Court in the case of Mohan Soni (supra) and determine the percentage of disability at 90%.
15. In view of the decision of the Apex Court, the claimant would also be entitled to future prospects at the rate of 40%, since she was aged 22 years as on the date of accident.
16. Hence, the claimant would be entitled to a sum of Rs.4,250 + 40% X 12 X 18 X 90/100 = 11,56,680/-.
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17. In my view, the Tribunal was erred in awarding a sum of only Rs.50,000/- towards pain and suffering and having regard to the fact that the claimant has lost her right fore arm interest of justice would be sub-served if a sum of Rs.75,000/- is awarded on account of pain and suffering.
18. Similarly the Tribunal has committed an error in awarding a meager sum of Rs.5,000/- towards loss of amenities. Taking note of the fact that the claimant was 22 year old and that she has lost her right fore arm, in my view she would be entitled for sum of Rs.75,000/- towards loss of amenities.
19. Further the income of the claimant is taken at Rs.4,250/- per month instead of Rs.3,000/- per month, the loss of earning during treatment period is enhanced to Rs.8,500/-.
20. In all other respects, the compensation awarded by the Tribunal is just and proper and the same are affirmed.
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21. The claimant being 22 years, old would obviously suffer the enjoyment of a normal marital life and she would therefore be compensated on that score also. In my view if an amount of Rs.50,000/- is awarded on account of loss of enjoyment of martial life, it would sub-serve the interest of justice in this case.
22. In the result, the claimant is entitled to the following sums.
Sl. Amo unt in
Particulars
No. Rs.
1 Towards Pain and suffering. 75,000/-
2 Towards Medical Expenses. 10,000/-
3 Towards attendant Charg es. 6,000/-
4 Towards nursing and 3,000/-
nourishment charges.
5 Towards loss of earning 8,500/-
during the treatment p eriod.
6 Compensation towards loss 11,56,680/-
of future earning s.
7 Compensation towards loss 75,000/-
of amenities.
8 Towards Loss of enjoyment 50,000/-
of marital life.
TOTAL 13,84,180/-
Less: Compensation awarded by 4,04,000/-
the Tribunal
Co mpensation enhanced by 9,80,180/-
this Court.
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23. Hence, the appeal is allowed in Part. The claimant is entitled to a compensation of Rs.13,84,180/- with interest at the rate of 6% per annum on the enhanced compensation from the date of petition till the date of deposit.
24. Respondent-Insurance Company is directed to deposit the enhanced sum within a period of two months.
SD/-
JUDGE EM