Karnataka High Court

Sudhakar S/O Tippanna Pune vs Channappa S/O Basappa Kanshetty ... on 21 June, 2021

Author: S.G.Pandit And M.G.S.Kamal

                             1



           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 21ST DAY OF JUNE 2021

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

MISCELLANEOUS FIRST APPEAL NO.201134/2015 (MV)
                     C/W
MISCELLANEOUS FIRST APPEAL NO.201410/2015 (MV)

MFA No.201134/2015:

Between:

Sudhakar S/o Tippanna Pune
Age: 30 Years, Occ: Commission Agent
and Senior Executive Officer in PACL India
Company Ltd., Now nil
R/o Village Mallikarjun Wadi U/v Rajeshwar
Tq. Basavakalyan, Dist. Bidar
                                              ... Appellant
(By Sri Babu H. Metagudda, Advocate)

And:

1.     Channappa S/o Basappa Kanshetty
       Age : Major, Occ: Business and Owner
       of Tanker No.MH-16/Q-5779, R/o Hudgi
       Tq. Humnabad, Dist. Bidar

2.     Mr. Haridas Namdeo Talekar
       Age : Major, Occ: Business (Owner
       of Tanker No.MH-16/Q-5779)
       R/o KEM, Tq. Karmala
       Dist. Solapur
                               2



3.    The Divisional Manager
      United India Insurance Co. Ltd.
      Dr. Jawali Complex, Super Market
      Gulbarga

4.    Prabhakar S/o Tukaram Maitre
      Age: Major, Occ: Owner of Hero Honda
      No.KA-39/K-2150, R/o Dhummansur
      Tq. Humnabad, Dist. Bidar

5.    The Divisional Manager
      National Insurance Co. Ltd.
      Opp. Mini Vidhan Soudha
      Station Road, Gulbarga

                                               ... Respondents
(Smt. Anuradha M. Desai, Advocate for R3;
Smt. Preeti Patil Melkundi, Advocate for R5;
R1 and R4 are served;
Notice to R2 is held sufficient)

      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the appeal
and modify the judgment and award dated 12.01.2015
passed in MVC No.620/2012 by the Fast Track Court
Basavakalyan, Dist. Bidar by enhancing the compensation
from Rs.12,24,400/- with 6% interest to Rs.50,00,000/- with
12% interest.

MFA No. 201410/2015:

Between:

The Divisional Manager
National Insurance Co. Ltd.
Opp. Mini Vidhan Soudha
Station Road, Gulbarga
                               3



(Now represented by Authorized
Signatory, Division Office, Gulbarga)
                                                ... Appellant
(By Smt. Preeti Patil Melkundi, Advocate)

And:

1.     Sudhakar S/o Tippanna Pune
       Age: 30 Years, Occ: Commission Agent
       and Senior Executive Officer in PACL India
       Company Ltd., Now nil
       R/o Village Mallikarjun Wadi U/v Rajeshwar
       Tq. Basavakalyan, Dist. Bidar

2.     Channappa S/o Basappa Kanshetty
       Age : Major, Occ: Business and Owner
       of Tanker No.MH-16/Q-5779, R/o Hudgi
       Tq. Humnabad, Dist. Bidar

3.     Mr. Haridas Namdeo Talekar
       Age : Major, Occ: Business (Previous owner
       of Tanker No.MH-16/Q-5779)
       R/o KEM, Tq. Karmala
       Dist. Solapur

4.     The Divisional Manager
       United India Insurance Co. Ltd.
       Dr. Jawali Complex, Super Market
       Gulbarga

5.     Prabhakar S/o Tukaram Maitre
       Age: Major, Occ: Owner of Hero Honda
       bearing No.KA-39/K-2150, R/o Dhummansur
       Tq. Humanbad, Dist. Bidar
                                            ... Respondents

(Sri Babu H. Metagudda, Advocate for R1;
Smt. Anuradha M. Desai, Advocate for R4;
R2, R3 & R5 are served)
                              4



      This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, praying to allow the appeal
by setting aside the impugned Judgment and award dated
12.01.2015 in MVC No.620/2012 passed by the Fast Track
Court, Basavakalyan, Dist. Bidar.

       These appeals having been heard and reserved for
judgment on 08.06.2021, coming on for pronouncement of
Judgment this day, M.G.S.KAMAL, J., delivered the
following:-

                        JUDGMENT

MFA No.201134/2015 is filed by the claimant

while MFA No.201410/2015 is filed by the National

Insurance Company Limited under Section 173(1) of the

Motor Vehicles Act (hereinafter referred to as 'the Act')

against the judgment and award dated 12.01.2015

passed in MVC No.620/2012 on the file of Fast Track

Court, Basavakalyan, Dist. Bidar (hereinafter referred to

as 'the Tribunal').

2. Facts giving rise to filing of the present

appeals briefly stated are that on 30.08.2012 at about

12.15 p.m., the claimant was proceeding on Hero Honda

motorcycle infront of DDC Bank, Humanbad at that

time another Hero Honda motorcycle bearing

registration No.KA-39/K-2150 ridden by its rider in a

rash and negligent manner came and dashed the

claimant. Due to the impact, the claimant fell down and

in the meantime a lorry bearing registration

No.MH-16/Q-5779 driven by its driver in a rash and

negligent manner came from the back side and ran over

the right hand of the claimant. As a result, the

claimant sustained grievous injuries.

3. The claimant thereafter filed petition under

Section 166 of the Act seeking compensation of

Rs.50,00,000/- on the ground that prior to the accident,

he was working as a Commission Agent and Senior

Executive Officer in PACL India Company Limited and

was earning Rs.40,000/- per month and on account of

the injuries sustained by him in the accident, he was

treated as inpatient at different hospitals by various

doctors. That he had to under go three operations

finally resulting in amputation of his right forearm.

That due to the accident, he sustained grievous injuries

and he is unable to carry out his regular work and that

the accident occurred due to the rash and negligent act

of the offending vehicles.

4. Upon service of notice, respondent No.2

(previous owner of the Tanker) and respondent No.4

(Owner of Hero Honda Motorcycle bearing registration

No.KA-39/K-2150) remained absent and were placed ex-

parte. Respondent No.1 (Owner of the Tanker),

respondent No.3 (Insurer of the Tanker) and respondent

No.5 (Insurer of the Hero Honda Motorcycle bearing

registration No.KA-39/K-2150) appeared. Respondent

No.1 did not file statement of objections. Respondent

No.3 filed its statement of objections denying the

manner and mode of accident, age, income, injuries,

occupation of the claimant and medical expenses

incurred by him. It was specifically contended that the

accident had taken place due to the negligent driving of

the rider of Hero Honda Motorcycle and not due to the

driving of the Tanker lorry by its driver. It was further

contended that the driver of the Tanker had no valid

and effective driving licence. As such, respondent No.3

- insurance company was not liable to pay the

compensation. Hence, sought for dismissal of the

petition.

5. Respondent No.5 - National Insurance

Company Limited filed statement of objections denying

the petition averments, age, income, injuries,

occupation of the claimant. It was contended that the

accident had taken place due to the negligent driving of

the Tanker lorry by its driver and not due to the rider of

Hero Honda Motorcycle registration No.KA-39/K-2150.

That the rider of the motorcycle had no valid and

effective driving licence and that respondent No.5 was

not liable to pay compensation. Hence, sought for

dismissal of the petition.

6. Based on the pleadings of the parties, the

Tribunal framed the issues and recorded the evidence.

The claimant examined himself as P.W.1. One Dr.Sanjay

was examined as P.W.2 and got exhibited 101

documents as Exs.P.1 to P.101. One Hirgeppa was

examined on behalf of the respondents as R.W.1. No

documents were marked. The Tribunal after evaluating

the pleadings and evidence held that the accident

occurred due to the rash and negligent driving of the

Tanker lorry bearing No.MH-16/Q-5779 and Hero

Honda Motorcycle bearing registration No.KA-39/K-

2150. The Tribunal held that the claimant is entitled

for total compensation of Rs.12,24,400/- and fixed the

liability jointly and severally on respondent Nos.1 and 3

to 5 and directed the insurers of both the vehicles to

pay the compensation together with interest @ 6% per

annum from the date of the petition till realization.

Aggrieved by the said judgment and award, the claimant

has filed MFA No.201134/2015 seeking enhancement of

compensation and the National Insurance Company

Limited has filed MFA No.201410/2015 seeking to set

aside the aforesaid judgment and award of the Tribunal.

7. The learned counsel for the claimant

submitted that the claimant was earning Rs.40,000/-

per month and the Tribunal grossly erred in assessing

the income of the claimant at Rs.7,000/- per month

which requires to be enhanced. He further submitted

that the claimant sustained 60% disability has

completely lost his earning capacity and as such, future

prospects at 50% is required to be awarded. He relied

on the judgment of the Apex Court in the case of

Jagdish vs. Mohan and Others reported in (2018) 4

SCC 571 and the judgment dated 08.06.2020 passed by

the Co-Ordinate Bench of this Court in MFA

No.200743/2019. He further submitted that the

compensation awarded under other heads and interest

awarded are on the lower side and thus sought for

enhancement.

8. On the other hand, learned counsel for the

National Insurance Company Limited (Respondent No.5)

submitted that the rider of the motorcycle bearing

registration No.KA-39/K-2150 was not having valid and

effective driving licence. As such, insurance company

was not liable to pay the compensation. That the

Tribunal erred in fastening the liability to the extent of

50% on the insurance company and whereas the entire

liability is required to be fastened on the insurer of the

Tanker lorry. That the compensation awarded by the

Tribunal was excess and exorbitant and same required

to be modified.

9. Heard the learned counsel for the appellant

and the respondents - insurance companies. Perused

the records.

10. The issues that arise for consideration are;

1. Whether the claimant is entitled for future prospects under the fact and circumstances of the case?

2. Whether the compensation awarded by the Tribunal requires to be enhanced?

3. Whether the liability fixed by the Tribunal jointly and severally on respondents is justified?

11. Though the claimant has contended that he

was earning a sum of Rs.40,000/- per month no

acceptable evidence has been produced in this regard.

Learned counsel for the claimant referred to the income

tax returns produced at Ex.P.15 for the assessment year

2012-13 which has been filed on 13.04.2013, in that

the total income is shown as Rs.1,92,721/- from

business/profession. The said income tax returns had

been filed subsequent to the date of accident, no other

income tax return prior to the date of accident or

subsequent thereof is filed. Apart from that, the

counsel for the appellant referred to Exs.P.96, P.97 and

P.98 which are the experience certificate and certificates

of performance given by the PACL India Company

Limited. The said document however do not evidence

the income of the claimant in any manner whatsoever.

In the absence of any cogent evidence with regard to the

income, the notional income adopted by the Tribunal at

Rs.7,000/- per month is just and proper and the same

is maintained.

12. The claimant is stated to have suffered 60%

physical disability due to the accident. P.W.2 doctor in

his evidence has deposed that the claimant sustained

crush injury of right hand and also sustained abrasion

over the right knee, contusion wound over right

forehead, peel of skin of the right forearm and other

injuries over the other parts of body. He has further

deposed that the claimant has undergone multiple

surgeries for crush injury of right hand forearm and

finally landed up in amputation below elbow and that

the claimant has 60% physical impairment and that he

accordingly issued certificate Ex.P.11 (a) assessing the

disability at 60%. The counsel for the claimant based

on these material submitted that since the claimant was

working as Commission Agent and Senior Executive

Officer in PACL India Company Limited and having lost

his forearm in the road accident, he is unable to carry

on his activities as usual, as such, the disability ought

to be assessed at 100%. He further submitted that the

claimant deserves future prospects to be awarded. The

Apex Court in the case of Jagdish supra considering

the facts and circumstances of that case and following

the judgment of the Constitution Bench in National

Insurance Company Limited vs Pranay Sethi

reported in (2017) 16 SCC 680 has awarded future

prospects at 40% of the established income. In the said

case, the injured was a carpenter and had suffered 90%

disability with loss of both the hands and required

assistance even to eat or to visit toilet. Similarly, in the

case decided by the Co-ordinate Bench of this Court, in

MFA No.200743/2019, the injured was a mason and

agriculturist and had been amputated of his right leg

upto the knee and had suffered 85% whole body

disability. Injuries suffered by them has rendered them

incapable of carrying on with their avocation. Thus,

considering the facts and circumstances of the said

cases including nature of injuries and avocation and the

nature of disability, future prospects have been

awarded.

13. It is settled law that the future prospects in

the case of the injuries resulting in permanent or

temporal disabilities have to be assessed depending

upon the facts and circumstance of the case. The

functional disability of the injured person rending him

incapable of earning needs to be taken into

consideration. The Apex Court in the case of Pappu

Deo Yadav vs Naresh Kumar and Others reported in

AIR 2020 SC 4424, referring to its various previous

decisions, has held at paragraph No.20 as under:

" 20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some 'proportionate' principle, which was illogical and is unsupportable in law. What is to be

seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case."

(Emphasis supplied by us)

14. In the instant case, the claimant is stated to

have been working as a Commission Agent and Senior

Executive Officer in PACL India Company Limited. He

has suffered injuries resulting in amputation of forearm

below elbow and suffered 60% disability to the whole

body. The Tribunal has taken the entire 60% disability

into consideration and awarded compensation under

the head loss of future earning. No evidence is led with

regard to functional disability of the claimant on

account of the injuries suffered. The facts and

circumstances of this case do not justify grant of future

prospects inasmuch as the claimant has been awarded

loss of future earning as stated above. Further, the

nature of injury and the nature of disability suffered by

the claimant would not adversely effect the earning

capability of the claimant as Commission Agent and

Senior Executive Officer in PACL India Company

Limited. There is nothing on record to show that due to

the accident, there is reduction in his earning capacity.

Pain, suffering and discomfort though taken into

consideration, the same will not result in reduction in

functional disability of the claimant. Thus, in the facts

and circumstances of the case the compensation

awarded under the head loss of future earning by the

Tribunal taking 60% disability is maintained as just and

proper. Accordingly, we answer issue No.1 in the

Negative.

15. The claimant has suffered crush injury of

right hand and also sustained abrasion over the right

knee, contusion wound over right forehead, peel of skin

of the right forearm and other injuries over the other

parts of body and undergone multiple surgery of crush

injury of right hand and forearm finally landed up in

amputation below elbow. The Tribunal has awarded

Rs.25,000/- towards pain and suffering. In view of the

injuries sustained by the claimant, we deem it

appropriate to enhance the same to Rs.75,000/-. The

Tribunal has awarded Rs.25,000/- under the head loss

of amenities and pleasure, which is enhanced to

Rs.50,000/-. In view of granting of compensation under

the head 'pain and suffering', 'loss of amenities and

pleasure', granting of Rs.25,000/- under the head 'loss

of physical figure' does not arise. The award is modified

to that extent. The compensation awarded on the other

heads are maintained. Thus, the appellant is held

entitled for compensation of Rs.13,24,400/- under

different heads as follows:-

         Heads           By Tribunal         By this Court
Pain and sufferings         Rs.25,000/-      Rs.1,00,000/-
Loss of life amenities      Rs.25,000/-       Rs.75,000/-
and pleasure
Loss of expectation of      Rs.25,000/-       Rs.25,000/-
life
Loss of physical figure     Rs.25,000/-            -
Medical attendant           Rs.25,000/-         Rs.25,000/-
charges
Food and Nutrition          Rs.25,000/-         Rs.25,000/-
Charges
Transportation              Rs.10,000/-         Rs.10,000/-
Charges
Medical Expenses          Rs.1,73,000/-       Rs.1,73,000/-
Future Medical              Rs.50,000/-        Rs.50,000/-
Expenses and Cost of
Artificial Limb
Loss of income during       Rs.35,000/-         Rs.35,000/-
laid down period
Loss of future income     Rs.8,06,400/-      Rs.8,06,400/-
                  Total Rs.12,24,400/-      Rs.13,24,400/-
    Difference amount Rs.1,00,000/-

16. Thus, the claimant is entitled for a total

compensation of Rs.13,24,400/- with interest at the

rate of 6% per annum from the date of petition till the

date of deposit. Thus, issue No.2 is answered in the

Affirmative.

17. As regards fixing of the liability on

respondent Nos.1 and 4, the owners of the vehicles and

respondent Nos.3 and 5 at 50% is by the Tribunal, the

same does not warrant any interference. From the

pleading of respondent Nos.3 and 5, it is seen that each

attributing negligence on the other. No evidence is lead

to discharge the burden and establish the negligence on