The Manager vs Thimmayya And A Ors
2021 Latest Caselaw 2903 Kant

                               1



            IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

         DATED THIS THE 22ND DAY OF JULY 2021

                           PRESENT
           THE HON'BLE MR.JUSTICE S.G.PANDIT
                              AND
          THE HON'BLE MR.JUSTICE M.G.S.KAMAL

                M.F.A. NO.200777/2017 (MV)

Between:

The Manager
Reliance General Ins. Co. Ltd.
Near Kalburagi Complex
3rd Floor, Deshpande Nagar, Hubli
(Now represented by
Authorized Signatory)
                                             ... Appellant

(By Smt. Preeti Patil Melkundi, Advocate)

And:

1.     Thimmayya @ Timmappa
       S/o Hunamayya @ Hanumantappa
       Age: 31 years
       Occ: Mason worker & Agriculture
       R/o Bettadur village, Tq: Manvi
       Now Residing at Nijalingappa Colony
       Raichur - 584 101

2.     Syed Baba S/o Syed Mahaboob
       Age: 28 years, Occ: Driver of lorry
       No.KA-25/B-4643
                              2



      R/o H.No.2-8-1/3, Siya Talab
      Raichur - 584 101

3.    Syed Hussain S/o Mahaboob Ali
      Age: Major, Occ: Owner of lorry
      Bearing No.KA-25/H-4643
      R/o: H.No.12-8-59
      Siya Talab, Raichur - 584 101
                                             ... Respondents

(Sri Babu H. Metagudda, Advocate for C/R1;
 R2 & R3 - served)

      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988, praying to allow the
appeal by setting aside the impugned judgment and award
dated 01.03.2017 in MVC No.137/2016 passed by the Motor
Accident Claim Tribunal at Raichur.

      This appeal having been heard and reserved on
09.07.2021, coming on for pronouncement of judgment this
day, S.G.Pandit J., delivered the following:

                       JUDGMENT

The insurer is in appeal under Section 173(1) of

the Motor Vehicles Act (for short 'M.V. Act'), questioning

the legality and correctness of the judgment and award

dated 01.03.2017 in MVC No.137/2016 on the file of

Motor Accident Claims Tribunal at Raichur (for short

'the Tribunal').

2. The claimant-injured filed a claim petition

before the Tribunal under Section 166 of the M.V. Act,

claiming compensation for the injuries sustained by him

in a road traffic accident that occurred on 17.10.2015

involving two wheeler bearing No.KA-36/EE-3135 and

lorry bearing No.KA-25/B-4643. It is stated that on the

date of accident, when the claimant along with one

Mudukappa were returning on his two wheeler from

Manvi and when they came near Renamma field on

Manvi-Raichur Road, the offending lorry came from the

opposite direction in a rash and negligent manner and

dashed to the two wheeler of the claimant, due to which

the claimant and pillion rider fell down and sustained

injuries. The claimant sustained fracture of forearm,

right femur and fracture of right leg which was in

hanging condition, apart from other lacerated, abrasive

injuries. It is stated that the claimant-injured was

working as mason and was earning Rs.15,000/- per

month. and he was aged 30 years as on the date of

accident. Due to the amputation of right leg, he suffers

100% functional disability.

3. On service of notice, the appellant-insurance

company filed written statement, denying the averments

of the claim petition and contended that the accident

took place solely due to the negligence of the claimant,

rider of the two wheeler; the driver of the lorry was not

having valid driving licence as on the date of accident

and there is violation of conditions of the policy; the

compensation claimed is exorbitant.

4. Before the Tribunal, the claimant-injured

examined himself as PW.1 and also examined PW.2,

apart from marking Exs.P1 to P24. The respondents

examined RW.1 and marked Exs.R1 to R6.

5. The Tribunal on scrutiny of the material on

record, awarded a total compensation of Rs.44,42,000/-

with interest at 6% per annum from the date of petition

till realisation under the following heads:

1. For pain and suffering Rs.2,00,000/-

2. For medical expenses Rs.3,00,000/-

3. For future medical expenses Rs.1,00,000/-

4. For future loss of enjoyment and Rs.2,00,000/-

loss of future family life

5. For loss of happiness and loss of Rs.3,00,000/-

amenities

6. For loss of earnings during the Rs.1,44,000/-

period of treatment for a period of one year at ht rate of Rs.12,000/- per month

7. For permanent attendant Rs.3,00,000/-

expenses

8. For loss of future earning due to Rs.24,48,000/-

permanent disability to the extent of 100% Total Rs.39,92,000/-

There is mistake in totaling the above

compensation which would come to Rs.39,92,000/- and

not Rs.44,42,000/-. While awarding the above

compensation, the Tribunal assessed the income of the

claimant-injured at Rs.12,000/- per month and

assessed the functional disability at 100%. The

appellant-insurer, aggrieved by the assessment of

income and the functional disability at 100% is before

this Court in this appeal.

6. Heard Smt. Preeti Patil Melkundi, learned

counsel for the appellant-insurer and Sri Babu H.

Metagudda, learned counsel for respondent No.1-

claimant. Perused the appeal papers and the Trial

Court records.

7. Learned counsel for the appellant would

submit that the quantum of compensation awarded by

the Tribunal is on the higher side as well as she

submits that the Tribunal failed to consider the

contributory negligence, as the appellant had contented

before the Tribunal that the claimant-rider of the two

wheeler was solely responsible for the occurrence of the

accident. Further she submits that the Tribunal has

assessed the income of the claimant at Rs.12,000/- per

month without there being any basis. Even though

Ex.P24-salary certificate is placed on record and

examined the employer, the employer has not placed on

record any document to prove that he is a Class-I

contractor and the claimant was working under him.

Further, the learned counsel would contend that the

Tribunal committed manifest error in assessing the

functional disability of the claimant at 100% . If the

right leg of the claimant is amputated, it would not

prevent him from doing any other work and it would not

reduce his earning capacity. Further she submitted that

Ex.P8-disability certificate indicates that the claimant-

injured has suffered 80% permanent physical disability,

whereas the Tribunal grossly erred in assessing the

functional disability at 100%. Thus, she prays for

allowing the appeal.

8. Per contra, learned counsel for respondent

No.1-claimant submits that the Tribunal rightly

assessed the functional disability of the claimant at

100% since he has suffered amputation of right leg,

which prevents him from attending mason work and he

would not be in a position to earn by doing mason work.

Further he submits that the Tribunal ought to have

assessed the monthly income of the clamant at

Rs.15,000/- based on Ex.P24, but the Tribunal

assessed the monthly income of the claimant at

Rs.12,000/- which is on the meager side need not be

interfered with. Further, the learned counsel would

submit that the accident occurred solely due to the

negligent and rash driving of the driver of the lorry

which is clear from Ex.P1-compaliant, Ex.P2-spot

panchanama and Ex.P4-M.V.I. report. Thus, he prays

for dismissal of the appeal.

9. On hearing the learned counsel for the

parties and on perusal of the material on record, the

following points would arise for consideration:

a) Whether the claimant-injured contributed his negligence to the occurrence of the accident?

b) Whether the assessment of income of the claimant-injured at Rs.12,000/- per month is proper and correct?

c) Whether the Tribunal is justified in considering 100% functional disability?

10. The answer to points (a) and (b) would be in

the negative and for point (c) would be in partly

affirmative for the following reasons:

The accident that took place on 17.10.2015

involving two wheeler bearing No.KA-36/EE-3135 and

lorry bearing No.KA-25/B-4643 and the accidental

injuries sustained by the claimant are not in dispute in

this appeal. Ex.P1-FIR indicates that when the injured

claimant along with Mudukappa was returning on his

motorcycle from Manvi and when they reached

Renamma field on Manvi-Raichur Road, the offending

lorry came in a rash and negligent manner and dashed

to the motorcycle of the claimant, due to which the

claimant suffered injuries such as fracture of forearm,

right femur and fracture of right leg, apart from other

lacerated, abrasive injuries. Ex.P2 is crime details form.

Column No.10 of Ex.P2 is sketch of the spot of accident.

The claimant was proceeding on motorcycle from West

to East, whereas lorry was coming from East to West.

The sketch indicates that the lorry which was coming

from East, took to extreme right and dashed to the

motorcycle of the claimant. Moreover, the charge sheet

was filed against the driver of the lorry and he has

pleaded guilty. Further, the insurer has not examined

any witness, much less the driver of the lorry to say

about the occurrence of the accident. In the above

circumstances, the Tribunal has rightly held that due to

the negligence of the driver of the lorry, the accident

took place.

11. The Tribunal has assessed the income of the

claimant at Rs.12,000/- per month. The claimant had

claimed that he was earning a sum of Rs.15,000/- per

month and in support of his contention, he had placed

on record Ex.P24 - salary certificate and examined PW.2

Sri K. Basappa-contractor, under whom the claimant

was said to have been working. But, ignoring Ex.P24

only on the ground that the claimant was skilled

worker, the Tribunal has assessed the income at

Rs.12,000/- per month. But, we are of the view that the

assessment of income of the claimant at Rs.12,000/-

per month in the facts and circumstances of the case is

on the higher side. Even though the claimant has

placed on record Ex.P24-salary certificate and examined

PW.2-K. Basappa-contractor, Ex.P24 and the evidence

of PW.2 would not help the claimant to determine his

income. A perusal of Ex.P24 would indicate that PW.2-

K. Basappa is Class-II contractor. No document is

placed on record to establish that he is a contractor,

such as registration certificate with the Department of

Public Works, nor contractors licence. In his cross-

examination he states that 10 to 15 persons were

working under him. No Muster Roll, nor register for

payment is produced. In the absence of cogent material

to determine the income, the income is to be determined

notionally. This Court and Lok Adalaths while settling

the accident claims of the year 2015 would normally

assess the notional income at Rs.8,000/- per month

based on the chart prepared by the Karnataka State

Legal Services Authority. Hence, in the present case

also, the notional income of the claimant is taken at

Rs.8,000/- per month for the purpose of determining

loss of future earning capacity.

12. Learned counsel for the appellant contended

that the Tribunal committed grave error in taking

functional disability at 100%, when Ex.P8 discloses

permanent physical disability of 80% with respect to

right lower limb. Ex.P7 is discharge summary issued by

the Raichur Institute of Medical Sciences, Raichur

where the claimant had taken treatment. He was

admitted to hospital on 17.10.2015 and was discharged

on 21.12.2015. He was inpatient for more than two

months. Ex.P8 is disability certificate issued by the

Medical Board of Raichur Institute of Medical Sciences,

Raichur, which indicates amputation of right leg below

6 cm from right knee. Exs.P22 and P23 are

photographs which demonstrates the amputation of

right leg below the knee.

13. The claimant states that he was working as

mason prior to the accident and due to amputation of

his right leg, he would not be in a position to do the

work of mason. As such, there would be drastic

reduction in his earning.

14. As the claimant has undergone amputation

of right leg, he would not be in a position to do the work

of mason which requires quick movement and moving

at the construction site. Mason involves manual work.

The loss of limb or amputation and its severity on that

account is to be judged in relation to the profession or

vocation of the claimant or injured. The amputation

sustained by the claimant permanently imposes

physical limitation and disabilities. Moreover, he was

aged 30 years as on the date of accident and he has to

suffer amputation throughout his life which definitely

affects his earning capacity. Definitely he would not be

in a position to do the mason work as he was doing

earlier. As the claimant has suffered amputation, he has

to use artificial limb. But, the claimant may not be in a

position to do the work of mason, but he would be in a

position to do any other work, as he is young. The

claimant's disability assessed at 85% by the Medical

Board would not prevent the claimant from carrying on

any higher or lesser scale of activities. Therefore, the

Tribunal is not justified in considering 100% functional

disability placing reliance on Ex.P8-disabiltiy certificate

issued by the Medical Board of Raichur Institute of

Medical Sciences, Raichur. In the peculiar facts of this

case, considering Ex.P8-disability certificate and

Exs.P22 and P23, we are of the view that the functional

disability of the claimant-injured could be assessed at

70% as against 100% assessed by the Tribunal.

15. The Tribunal has awarded Rs.2,00,000/- on

the head of future loss of enjoyment and loss of future

family life, which the claimant would not be entitled to

when compensation of Rs.3,00,000/- is awarded on the

head of loss of happiness and loss of amenities &

inconvenience.

16. The Tribunal has committed an error in

awarding Rs.3,00,000/- towards permanent attendant

expenses. Attendant expenses would be awarded when

a person is not able to move and requires assistance for

his mobility. But in the instant case, the claimant would

be in a position to move and attend to his day-to- day

activities on his own. Therefore, he would not be entitled

for compensation on the head of permanent attendant

expenses.

17. Further, the Tribunal has awarded

Rs.1,00,000/- on the head of future medical expenses

without any basis. Ex.P7-discharge summary, nor

Ex.P8-disbility certificate would suggest future medical

treatment. There is no evidence on record to say that

the claimant requires future medical expenses. Hence,

the claimant would not be entitled for future medical

expenses.

18. The compensation awarded by the Tribunal

at Rs.3,00,000/- on the head of medical expenses,

Rs.3,00,000 on the head of loss of happiness and loss of

amenities & inconvenience and Rs.2,00,000/- on the

head of pain and suffering is proper and not disturbed.

19. On the head of loss of earning during the

period of treatment for a period of one year, the Tribunal

has awarded Rs.1,44,000/- at the rate of Rs.12,000/-

per month, which requires modification in view of the

reassessment of monthly income of the claimant at

Rs.8,000/- per month instead of Rs.12,000/- per

month. Hence, the claimant would be entitled for a sum

of Rs.96,000/- on the head of loss of earning during

treatment period.

20. Thus, the appellant/claimant would be

entitled for the modified compensation as follows:

1. Towards pain and suffering Rs.2,00,000/-

2. Towards medical expenses Rs.3,00,000/-

3. Towards loss of amenities and Rs.3,00,000/-

happiness

4. Towards artificial limb Rs.1,50,000/-

5. Towards loss of earning during Rs.96,000/-

treatment period

6. Towards loss of future earning Rs.11,42,400/-

(Rs.8,000 x 12 x 17x 70%) Total Rs.21,88,400/-

Thus, the respondent/claimant would be entitled

for total compensation of Rs.21,88,400/- with interest

at 6% p.a. from the date of petition till realisation as

against compensation of Rs.39,92,000/- awarded by the

Tribunal.

Accordingly, the appeal of the insurance company

is allowed in part. The impugned judgment and award

dated 01.03.2017 in MVC No.137/2016 passed by the

Tribunal is modified. The compensation of

Rs.39,92,000/- awarded by the Tribunal is reduced to

Rs.21,88,400/-.

Sd/-

JUDGE

Sd/-

JUDGE LG