Karnataka High Court

Sri. Nanje Gowda. V vs Sri. Kumar H. B on 21 December, 2021

Bench: P.S.Dinesh Kumar, P.Krishna Bhat

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 21ST DAY OF DECEMBER, 2021

                         PRESENT

       THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
                           AND
        THE HON'BLE MR. JUSTICE P. KRISHNA BHAT
              M.F.A. NO.6429/2017(MV-I)

BETWEEN:

SRI. NANJE GOWDA. V
S/O LATE VENKATESHAPPA,
AGED: 29 YEARS
OCC:DRIVER
R/AT NO.208, 6TH CIRCLE,
MURARJI HOSTEL, MARUTHI NAGAR,
SULIBELE, HOSAKOTE,
BENGALURU RURAL-562 129
                                               ...APPELLANT
(BY SRI. SURESH M LATUR, ADVOCATE)

AND:

1.     SRI. KUMAR H. B.
       S/O BALLAIAH,
       R/AT F.NO.1,
       4TH FLOOR, NO. 3, 1ST CROSS, 4TH MAIN
       BEHIND A.K.ASHRAM,
       R.T.NAGAR POST,
       BENGALURU-560 032.

2.     THE MANAGER
       MAGMA HDI GEN INS CO. LTD.,
       2ND FLOOR, HMJC ROAD,
       36, J.C.ROAD, NEAR MINARVA CIRCLE,
       BENGALURU-560 002.
                                      ... RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R2;
   VIDE ORDER DATED 04.02.2021 NOTICE
                          2




   TO R1 IS DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 01.07.2017 PASSED IN MVC NO.5093/2015
ON THE FILE OF THE XIII ADDITIONAL JUDGE, COURT OF
SMALL CAUSES, AND MEMBER MACT, BENGALURU. PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ORDERS, THROUGH VIDEO CONFERENCING/ PHYSICAL
HEARING THIS DAY, KRISHNA BHAT J, DELIVERED THE
FOLLOWING:

                    JUDGMENT

This appeal is at the instance of the claimant

seeking enhancement of compensation awarded by the

learned XIII Additional Judge, Court of Small Causes

and Member MACT, Bengaluru, in MVC No.5093/2015

by award dated 01.07.2017.

2. Brief facts insofar as same is necessary for

the disposal of this appeal are that on 18.07.2015 at

about 5.30 p.m. the appellant-claimant was riding

motorcycle bearing registration No.KA-43/Q-9956 on

Dobbespet-D.B.Pura Road and when he was near

L.M.Factory, a car bearing registration No.KA-05/AC-

4735 driven by its driver in a rash and negligent

manner came and dashed against the motorcycle of the

appellant-claimant causing grievous injuries to the

claimant. On account of the impact injuries, appellant-

claimant was admitted to the hospital and his right leg

below the knee had to be amputated.

3. Before the learned Tribunal both respondents

entered appearance and only respondent No.2 - insurance

company has filed its written statement denying the

material averments made in the claim petition.

4. During the trial, appellant-claimant examined

himself as PW1, doctor was examined as PW2 and one

Yallegowda was examined as PW3. Exs.P-1 to P-19 were

marked for the appellant-claimant. Respondents did not

examine any witness and no documents were also marked

on behalf of respondents.

5. After hearing the learned counsel on both sides

and on perusal of records, learned Tribunal has allowed the

claim petition in part and awarded a compensation of

Rs.10,33,625/- with interest at 8% p.a.

6. Learned counsel for the appellant-claimant

submitted before us that learned Tribunal has committed an

error in taking the monthly income of claimant only at

Rs.7,000/- even though he was a cab driver and he was

earning a monthly income of Rs.35,000/-. He submitted

that Claims Tribunal has awarded a meager compensation

under the heads of 'Pain and Sufferings', 'Loss of Income

during Laid Up Period', 'Future Medical Expenses', 'Loss of

Future Income', 'Nourishment, Food and Conveyance', 'Loss

of Amenities' and 'Attendant Charges during

hospitalization'. He further submitted that learned Tribunal

has committed a serious error in calculating the 'loss of

earning capacity' by taking functional disability at 50%. It

was his submission that when medical evidence clearly

showed that claimant, who is a cab driver had lost his right

leg below the knee, he would not be in a position to drive a

cab and therefore, functional disability had to be calculated

at 100%. He further submitted that 'loss of future

prospects' should also have been included while computing

the 'loss of future earning' for the claimant. He therefore

submitted that appeal is required to be allowed by

enhancing the compensation under various heads as prayed

for by him.

7. Learned counsel for the insurance company, per

contra, submitted that there is no merit in the appeal and

same requires to be dismissed. He submitted that no

compensation is liable to be awarded for 'loss of future

prospects' and according to him said principle is applicable

only in cases of death and not in cases of personal injuries

resulting in permanent disability. He further submitted that

even as per medical evidence claimant had suffered

amputation of right leg below the knee and therefore,

learned Tribunal was right and justified in recording a

finding that claimant has suffered permanent disability to

the extent of 50% for whole body and therefore, there is no

error in the finding recorded by the learned Tribunal. He

submitted that compensation awarded by the Tribunal is

just and reasonable and no interference is called for and as

such appeal is liable to be dismissed.

8. We have given anxious consideration to the

submissions made on both sides and we have carefully

perused the records.

9. In this appeal, the negligence on the part of

driver of the car, which was insured with respondent No.2 -

insurance company in causing the accident and resulting in

injuries to the claimant, is not at all in dispute. It is also

not in dispute that claimant had suffered various injuries

resulting in amputation of 1/3rd of right leg below knee as

asserted by him. Further there is also no dispute about the

internal fixation of ulna with DCP and same is required to

be removed by performing another surgery.

10. The claimant was born on 08.09.1988 and

therefore, he was aged 27 years as on 18.07.2015 (Ex.P-10

driving license) when the accident took place. The

appropriate multiplier that is applicable to this case is '17'

as per the decision of Hon'ble Supreme Court in the case of

SARLA VERMA & OTHERS vs DELHI TRANSPORT

CORPORATION & ANOTHER reported in AIR 2009 SC

3104.

11. Ex.P-10 - driving license shows that claimant

was having a valid driving license to drive a cab. It is the

case of claimant as pleaded and deposed by him before the

learned Tribunal that he was driving a motor cab. Since

claimant was not able to establish his income before the

learned Tribunal, it has taken his monthly income at

Rs.7,000/-. As rightly submitted by the learned counsel for

the appellant-claimant, the monthly income reckoned by

the learned Tribunal is erroneous and as per the chart

prepared by the High Court Legal Services Committee the

notional income for persons whose actual income has not

been established for the year 2015 is Rs.9,000/- per

month. Therefore, the notional income of the claimant has

to be taken atleast Rs.9,000/- per month.

12. The medical evidence produced before the

learned Tribunal, which has been accepted by it shows that

on account of accident claimant has suffered 1/3rd

amputation of right leg below knee and there was an

internal fixator for ulna on his hand. In that view of the

matter, particularly in view of amputation of right leg

claimant would not be in a position to drive any motor cab,

which obviously was his only avocation. Further, in view of

serious injuries sustained by him, it would not be possible

for him to do any other manual work. Respondent No.2-

insurance company has not been able to show that he was

trained to do any other work so as to secure gainful

employment. Under such circumstances, his functional

disabilities has to be taken at 100%.

13. While assessing the functional disability at

100% for the claimant, we are guided by the decisions of

the Hon'ble Supreme Court in the matter of RAJ KUMAR v.

AJAY KUMAR AND ANOTHER reported in (2011) 1 SCC

343 and JAGDISH v. MOHAN AND OTHERS reported in

(2018) 4 SCC 571. It is apposite to refer to the

observation of the Hon'ble Supreme Court in JAGADISH's

case supra, which is as follows:

"14. In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing--at least in the facts of this case-- can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a

realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law's doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity."

14. Even though learned counsel for the insurance

company very vehemently contended that compensation

under the component of 'loss of future prospects' is

applicable only in death cases and not in case of personal

injuries resulting in personal disabilities and consequent

loss in the earning capacity, the law is well established as

could be seen from the observation of the Hon'ble Supreme

Court in the matter of ERUDHAYA PRIYA v. STATE

EXPRESS TRANSPORT CORPORATION LTD. reported in

2020 SCC Online SC 601 at para 13 and 14, which is as

follows:

"13. We have also perused the photographs annexed to the petition showing the current physical state of the appellant, though it is stated by learned counsel for the respondent State Corporation that the same was not on record in the trial court. Be that as it may, this is the position even after treatment and the nature of injuries itself show their

extent. Further, it has been opined in para 12 of Sandeep Khanuja case (supra) that while applying the multiplier method, future prospects on advancement in life and career are also to be taken into consideration.

14. We are, thus, unequivocally of the view that there is merit in the contention of the appellant and the aforesaid principles with regard to future prospects must also be applied in the case of the appellant taking the permanent disability as 31.1%. The quantification of the same on the basis of the judgment in National Insurance Co. Ltd. case (supra), more specifically para 59.3, considering the age of the appellant, would be 50% of the actual salary in the present case."

15. The Hon'ble Supreme Court in the said decision

has also referred to 2 earlier decisions of the said Court

rendered in SANDEEP KHANUJA vs. ATUL DANDE

reported in (2017) 3 SCC 351 at para 12 and

JAGADISH's case supra at para 12 and 13. In view of the

same, we hold that a component of loss of future prospects

is required to be added to the established income of the

claimant since he was aged 27 years, as held in the

decision in PRANAY SETHI's case (supra), 40% of the

income of claimant is required to be added towards 'loss of

future prospects':

1. PAIN AND SUFFERINGS:

Since claimant was in hospital for 303 days and

further he has undergone amputation of 1/3rd of right leg

and fracturing the ulna requiring internal fixator, a sum of

Rs.75,000/- is required to be awarded under this head and

same is awarded.

2. MEDICAL EXPENSES:

Based on 149 medical bills produced at Ex.P-11,

learned Tribunal has awarded a sum of Rs.76,751/- towards

medical expenses and same is required to be maintained.

3. ATTENDANT CHARGES:

Learned Tribunal has awarded only a sum of

Rs.37,625/- towards attendant's charges. We are of the

view that same is highly inadequate as per the medical

records produced before the learned Tribunal. Learned

Tribunal has observed that claimant was impatient for 303

days after looking into Ex.P-8 - discharge summaries.

Therefore, attendant charges during the period of

hospitalization, is required to be calculated as under:

Rs.250/- x 303 days = Rs.75,750/-

4. NOURISHMENT, FOOD AND CONVEYANCE

CHARGES:

Since claimant was in hospital for about 10 months, a

sum of Rs.60,000/- is awarded towards nourishment, food

and conveyance charges.

5. LOSS OF AMENITIES:

Claimant was a young man aged 27 years at the time

of accident, therefore a sum of Rs.50,000/- is awarded

towards 'loss of amenities'.

6. LOSS OF INCOME DURING LAID UP PERIOD:

Claimant was in hospital for 10 months, therefore

'loss of income during laid up period' is calculated at

Rs.9,000/- per month. Hence, a sum of Rs.90,000/- is

awarded towards 'loss of income during laid up period'.

7. FUTURE MEDICAL EXPENSES:

PW2 has stated that one surgery is required to be

performed on claimant for removal of internal fixator fixed

on his hand. Therefore, a sum of Rs.25,000/- is awarded

under the head of 'Future Medical Expenses'.

8. LOSS OF EARNING CAPACITY INCLUDING LOSS

OF FUTURE PROSPECTS:

The notional monthly income of the claimant is

Rs.9,000/-, the multiplier applicable is 17 and the functional

disability in the case of claimant is fixed at 100%. Since

claimant was aged 27 years at the time of accident, 'loss of

future prospects' has to be taken at 40% as per the decision

rendered in NATIONAL INSURANCE COMPANY LTD. v.

PRANAY SETHI AND OTHERS case reported in (2017) 16

SCC 680. Therefore, the loss of earning capacity including

loss of future prospects is calculated as follows:

Rs.9,000/- + 40% (i.e., Rs.3,600/-) = Rs.12,600/- Rs.12,600 x 12 x 17 = Rs.25,70,400/-

Thus, claimant is entitled to following enhanced

compensation:

Amount Sl.No. Particulars (Rs.) 1 Pain and sufferings 75,000.00 2 Medical expenses 76,751.00 3 Attendant charges 75,750.00 4 Nourishment, food and conveyance 60,000.00 5 Loss of amenities 50,000.00 6 Loss of income during laid-up period 90,000.00 7 Future medical expenses 25,000.00 8 Loss of earning capacity including loss 25,70,400.00 of future prospects TOTAL 30,22,901.00

16. Learned Tribunal has already awarded a sum of

Rs.10,33,625/-. Therefore, enhanced compensation works

out to Rs.19,89,276/-. On the enhanced compensation,

interest @ 6% p.a. is liable to be paid by the insurance

company to the claimant from the date of the petition till the

date of payment.

17. In view of the above, MFA No.6429/2017 is

allowed in part. The award passed by the learned Tribunal

in MVC No.5093/2015 dated 01.07.2017 is modified by

awarding an enhanced compensation of Rs.19,89,276/- with

interest thereon @ 6% p.a. from the date of petition till the

date of payment.