Karnataka High Court
Narasimhaiah vs H Sikandar on 11 February, 2022
Bench: Ravi V Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A. NO.776 OF 2019 (MV-I)
BETWEEN:
NARASIMHAIAH
S/O KARIYAPPA, AGED ABOUT 47 YEARS
R/A ARALIKERE VILLAGE
NAVILA POST, KASABA HOBLI
CHIKKANAYAKANAHALLI TALUK
NOW R/A 1ST CROSS, SIRA GATE
TUMAKURU-572 106. ...APPELLANT
[BY SRI. SHANTHARAJ K., ADVOCATE (VC)]
AND:
1. H.SIKANDAR
S/O IMAM KHAN SAB
AGED ABOUT 62 YEARS
R/A TIMMANAHALLI VILLAGE
C.N.HALLI TALUK
TUMAKURU DISTRICT-572 214.
2. UNITED INDIA INS., CO., LTD.,
BY ITS BRANCH MANAGER
BRANCH OFFICCE, JAYADEVA COMPLEX
B.H.ROAD, TUMAKURU-572 101.
...RESPONDENTS
(BY SRI. C.SHANKAR REDDY, ADVOCATE FOR R2 (VC);
NOTICE TO R1 IS DISPENSED WITH V/O DATED 10.08.2021)
2
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 02.11.2018, PASSED
IN MVC NO.962/2017, ON THE FILE OF THE I ADDITIONAL
DISTRICT JUDGE AND MACT, TUMAKURU, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT ON
05.01.2022, THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
JUDGMENT
Challenging impugned judgment and award dated 02.11.2018
passed in MVC No.962/2017 by I Addl. District Judge and MACT,
Tumakuru (hereinafter referred to as 'tribunal') appellant-claimant
preferred this appeal seeking enhancement of compensation.
2. Brief facts as stated are that on 23.04.2017 at 04.45 PM
when claimant was riding his motorcycle bearing registration
no.KA-05-BV-3262, a bus bearing registration no.KA-07-7470
driven by its driver in rash and negligent manner dashed against
motorcycle near Mathigatta gate leading to accident. Claimant
sustained grievous injuries and was shifted to Government hospital
C.N.Halli. He later took inpatient treatment at Hemavathi
orthopedic and trauma Centre Tumakuru. Despite same, he
sustained physical disability and consequent reduction in earning
capacity. Claiming compensation. He filed claim petition against
owner and insurer of offending bus u/s 166 of Motor Vehicles Act.
3. On service of notice, respondent no.1 - owner did not file
objections. Respondent no. 2 - insurer filed objections denying
claim petition averments. It also denied that accident occurred due
to negligence of bus driver. Apart from contending that accident
occurred due to negligence of claimant himself, it also contended
that claim was exorbitant; age, occupation, income and disability
sustained were also denied.
4. Based on pleadings, followings issues were framed:
1. Whether the petitioner proves that he
sustained injuries in a road accident on
23.04.2017 at about 1.45 p.m. due to the
actionable negligence of the driver of D.H.K.
bus bearing registration No.KA.07.7470 as
alleged?
2. Whether petitioner is entitled for
compensation?
3. What order?
5. Thereafter claimant examined himself as PW.1. He also
examined Dr. Prasad as PW2. Exhibits P.1 to P.13 were marked. On
behalf of respondents one witness was examined as RW.1 and
Exhibits R.1 and R.2 were marked. On consideration, tribunal
answered issue no.1 in affirmative, issue no.2 partly in affirmative
and issue no.3 by awarding total compensation of Rs.12,31,904/-
with 6% interest and holding respondent no.2 - insurer liable to pay
same. Not satisfied with quantum of compensation, claimant is in
appeal.
6. Sri K. Shantharaj, learned counsel for claimant/appellant
submitted that claimant was 45 years of age, working as mason
and earning Rs.20,000/- per month. However, due to disability
sustained in the accident, his left leg below knee was amputated,
due to which he was unable to continue his avocation and lost
100% earning capacity. However, tribunal considered meager
monthly income at Rs.8,000/- and disability at 70% and without
adding future prospects awarded inadequate compensation. It was
further submitted that even compensation awarded towards 'pain
and suffering', 'amenities', and 'incidental charges' was in adequate.
Learned counsel further submitted that award towards income
during laid up period also required enhancement. It was submitted
that though PW.2 deposed that prosthetic leg would cost Rs.1.50-
2.00 lakhs, tribunal awarded only Rs.50,000/-, which requires to be
enhanced.
7. In support of his submission, learned counsel relied upon
decisions of Hon'ble Supreme Court in Mangla Ram Vs. Oriental
Insurance Co., Ltd., reported in (2018) 5 SCC 656, Kajal Vs.
Jagdish Chand reported in (2020) 4 SCC 413; Pappu Deo
Yadav Vs. Naresh Kumar and Others reported in 2020 SCC
OnLine SC 752 and Erudhaya Priya Vs. State Express
Transport Corporation Ltd., reported in 2020 SCC OnLine SC
601.
8. On the other hand, Sri. C. Shankara Reddy, learned
counsel for respondent. No.2 - insurer supported award and
opposed enhancement. It was specifically submitted that though
claimant, had stated that he was working as mason and earning
Rs.20,000/- per month, claimant did not substantiate same by any
evidence. Under the circumstances, tribunal was justified in
assessing his income notionally. It was further submitted that
claimant had sustained amputation of left leg below knee. By fixing
prosthetic leg, claimant would be able to earn livelihood from
alternate avocation. However, without adequate justification
tribunal had considered excessive disability of 70%. Learned
counsel submitted that even if claimant was entitled for
enhancement of compensation, in any other head, same would be
offset by excess assessment of physical disability.
9. From above submission, occurrence of accident due to
rash and negligent driving of offending bus by its driver leading to
accident in which claimant sustained grievous injuries and
permanent physical disability are not in dispute. Tribunal held that
accident occurred due to sole negligence of bus driver, had
assessed compensation payable by insurer. Insurer had not filed
appeal challenging same. Therefore, liability of insurer to pay
compensation is also not in dispute. Claimant is in appeal seeking
for enhancement of compensation. Thus, point that arises for
consideration is:
"Whether claimant is entitled for enhancement
of compensation as sought for?
10. In order to substantiate his claim regarding 'loss of
earning capacity', claimant produced wound certificate, discharge
card, prescription, medical bills, case sheet, OPD slip and X-rays
marked as Exs.P.4, P.6 to P.8, P.11 to P.13 respectively. Claimant
also examined Dr. Prasad, an Orthopedic surgeon as PW.2. From
Exs.P.4, P.6 and P.11 and other medical records, it is seen that
claimant sustained following injuries:
1. Left leg is crushed, foot is avulsed.
2. Tenderness present scalp
3. Tenders present left side of pelvis.
During treatment, there was amputation of his left leg below
knee. PW.2 - Dr. Prasad, deposed that claimant was admitted in his
hospital for treatment on 23.04.2017 and discharged on
03.05.2017. After narrating nature of treatment given, PW.2 also
stated about amputation of left leg. After clinical examination, PW.2
assessed physical disability at 70% to left lower limb. However,
PW.2 has not assessed whole body disability or extent of loss of
earning capacity. Though, amputation of lower limb below knee
would seriously jeopardize earning capacity, the fact that claimant
would be able to earn income from alternate avocation. PW.2
assessed physical disability at 70% to left lower limb. Tribunal
considered same extent as functional disability. Though, learned
counsel for claimant sought for assessment of disability at 100%,
this Court is of the considered opinion that assessment by tribunal
is adequate and does not call for interference.
11. Further police investigation records as well as medical
records corroborate claimant's occupation as mason. Though, it is
claimed that he was earning Rs.20,000/- per month, same is not
substantiated by any evidence. In the absence of evidence, tribunal
would be justified in assessing it on notional basis. However,
accident is of the year 2017. Notional income for said period as
adopted by Karnataka State Legal Services Committee for
settlement of cases before Lok-Adalat is Rs.11,000/-. Therefore,
tribunal was not justified in taking it at Rs.8,000/- per month. It
has to be considered at Rs.11,000/-.
12. Next aspect that would require consideration is about
addition of future prospects even in injury claim. The Hon'ble
Supreme Court in Mangla Ram's case (supra) added 'future
prospects' to income of claimant, who had sustained permanent
physical disability of 40%. In Kajal's case (supra), it added 'future
prospects', where claimant sustained 100% permanent physical
disability. In Erudhaya Priya's case (supra), Hon'ble Supreme
Court added 'future prospects' to income of claimant, who had
sustained permanent physical disability of 31.1%. In Pappu Deo
Yadav's case (supra), three Judges Bench of Hon'ble Supreme
Court added 'future prospects' in the case of claimant sustaining
65% permanent physical disability.
13. Following decision in Pappu Deo Yadav's case (supra),
Division Bench of this Court in S.N. Narasimha Murthy Vs.
Sriram General Insurance Company Ltd., in M.F.A.Crob.
No.8/2015 disposed off on 19.07.2021 also added 'future
prospects' in personal injury claim, where physical disability was
70%. Likewise, in Punyashri H. Vs. Dr. Jayamma and another
reported in 2020 SCC OnLine Kar. 1967, 'future prospects' was
added in case of physical disability of 80%. In Erudhaya Priya's
case (supra), 'future prospects' was added even where physical
disability was as low as 31.1%. In this case, tribunal assessed
physical disability of claimant at 70%. Therefore, this would be a fit
case to add 'future prospects'.
14. Admittedly, claimant was aged about 45 years. As per
constitution Bench decision of Hon'ble Supreme Court in National
Insurance Company Ltd., Vs. Pranay Sethi & Ors. reported in
AIR 2017 SC 5157, proper multiplier applicable would be '14' and
addition of 'future prospects' would be at 40%. Thus, 'future loss of
earning' would be :
Rs.11,000/- + 40% X 70% X 12 X 14 = Rs.18,11,040/-.
15. Tribunal awarded Rs.80,000/- towards 'pain and
suffering'. As there is amputation of left lower limb below knee,
compensation. Awarded would be inadequate. It would be
appropriate to award Rs.1,00,000/- towards same. Tribunal
awarded Rs.62,104/- towards 'medical expenses' against bills
produced. As there is complete reimbursement, there is no scope
for enhancement.
Tribunal has awarded Rs.15,000/- towards food and
nourishment, Rs.15,000/- towards 'transportation charges' and
Rs.5,000/- towards 'attendant charges'. Claimant took inpatient
treatment for 10 days. Considering duration of inpatient treatment,
same appears to be just and proper and do not call for
enhancement.
Tribunal awarded Rs.40,000/- towards 'loss of amenities'.
Claimant sustained amputation of left lower limb below knee at the
age of 45 years. Award would be grossly inadequate. Considering
extent of disability assessed, it would be just and proper to award
Rs.1,00,000/- towards 'loss of amenities'.
Tribunal awarded Rs.24,000/- towards 'loss of income' taking
duration of laid up period as three months. Since, monthly income
is reassessed at Rs.11,000/-, claimant would be entitled to
Rs.33,000/-.
Tribunal awarded Rs.50,000/- towards 'artificial limb'. Though
PW.2 deposed about cost of artificial limb at Rs.1.50 - 2.00 lakhs.
Normally, prosthetic leg would cost Rs.50,000/-. However, same
would require periodic maintenance or replacement. Considering
age of claimant, it would be appropriate to award Rs.1,00,000/-
towards same. Thus, claimant would be entitled to total
compensation of Rs.22,41,144/-, which is as under:
Pain and suffering Rs. 1,00,000/-
Medical expenses Rs. 62,104/-
Food and nourishment Rs. 33,000/-
Transportation charge Rs. 15,000/-
Loss of amenities in life Rs. 15,000/-
Attendant charge Rs. 5,000/-
Loss of future income Rs.18,11,040/-
Loss of income during laid Rs. 33,000/-
up period
Artificial limb Rs. 1,00,000/-
Total Rs.22,41,144/-
16. Point for consideration is answered partly in affirmative.
In the result, I pass following:
ORDER
i) Appeal is allowed in part with cost.
ii) Total compensation awarded by Tribunal
is modified and appellant - claimant is
entitled to Rs.22,41,144/- [Rupees
Twenty Two Lakhs Forty One Thousand
One Hundred Forty Four only] as against
Rs.12,31,904/-. Enhanced compensation
of Rs.10,09,240/- shall carry interest at
the rate of 6% per annum from date of
claim petition till its realization.
iii) Respondent no.2 - insurer shall deposit
same within six weeks from date of
receipt of certified copy of this order.
iv) Direction issued by tribunal regarding
proportion of deposit and release would
also apply to enhanced compensation.
v) Draw modified award accordingly and
transmit original records to Tribunal
forthwith.
Sd/-
JUDGE
Psg*
