Karnataka High Court
Boya Ramanjinamma vs K Vikram Simha Reddy on 4 January, 2021
Author: N.S.Sanjay Gowda
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)
:2:
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.
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/-
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
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
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%.
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).
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/-.
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.
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.
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
