Karnataka High Court

Anjinappa @ Ramanjini S/O Obaiah vs K.Thimmappa S/O. K Ningappa on 13 January, 2022

Bench: S.Vishwajith Shetty

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 13 T H DAY OF JANUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

               M.F.A. No.23322/2013 (MV)

BET WEEN

ANJINAPPA @ RAMANJINI,
S/O OB AIAH,
AGED AB OUT 31 YEARS,
R/O NANDIHAL LI VIL LAGE,
SANDU R TALUK,
BALLARI DIST RICT ,
PRESENT LY RES IDING AT
VINAYAKA NAGAR,
CONTONMENT, B ALLAR I.
                                           ...APPELLANT
(BY SRI Y.LAKSHMIKANT REDDY, ADVOCATE)

AND

1.    SRI K.THIMMAPPA,
      S/O K.NINGAPPA,
      AGED MAJOR,
      OWNER OF THE TIPP ER LORRY
      B EARING REG.NO. KA-35/A- 5541,
      R/O DOOR No.137, KU RIMAT TI,
      HOSA CHANPPARA DAHALL I,
      14 T H WARD, SANDU R, B ALLARI.

2.    THE MANAGER,
      M/S RELIANCE GENERAL INSURANCE
      COMPANY LIMITED,
      MAIN ROAD, PARVATI NAGAR,
      B ALLARI.
                                        ...RESPONDENTS

(BY SRI S.K.KAYAKAMATH, ADVOCATE FOR R2;
 NOTICE TO R1 DISPENSED WITH)
                            2




      THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 06.03.2 013 PASS ED IN
MVC No.1094/2012 ON THE F ILE OF THE FAST TRACK
COURT-I    AND   MEMBER,   MOT OR  ACCIDENT      CLAIMS
TRIB UNAL,  BALLARI,   PARTLY  ALLOWING    TH E   CLAIM
PET IT ION   FOR     COMPENSATION     AND       SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                      JUDGMENT

The instant appeal is filed by the claimant being

not satisfied with the amount of compensation awarded

by the Fast Track Court-I and Member, M.A.C.T.,

Ballari (hereinafter referred to as the 'Tribunal', for

brevity) in MVC No.1094/2012 vide its judgment and

award dated 06.03.2013.

2. Though this appeal is listed for admission,

with the consent of the learned counsels appearing

for the parties, the appeal is taken up for final

disposal. The parties to this appeal are referred to by

their rankings before the Tribunal for the purpose of

convenience.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

On 16.02.2012, the claimant who was the driver

of the lorry bearing registration No.KA-35/A-5022

along with his cleaner was going towards Yashwanth

Nagar Railway Plot from Harishankar Mines for the

purpose of unloading the iron ore FINES which were

loaded in the lorry at about 6.30 p.m. the claimant

after collecting the unloading trip chits from the

check post authorities was walking on the side of the

road towards lorry which was parked and at that

time, the offending tipper lorry bearing registration

No.KA-35/A-5541 which was driven in a rash and

negligent manner dashed against the claimant and as

a result, the claimant fell down on the road and the

left wheel of the offending lorry ran over on the right

hand of the claimant and as a result, he sustained

grievous crush injury on his right hand. Immediately

he was taken to Taluka General Hospital, Sandur,

thereafter he was shifted to VIMS Hospital, Ballari,

subsequently he was shifted to M.S.Ramaiah Medical

Teaching Hospital, Bengaluru for higher treatment

where he had undergone operation and his right hand

was amputated above elbow. The claimant

thereafterwards had filed claim petition filed under

Section 166 of the Motor Vehicles Act, 1988 (for

short, the 'Act') claiming compensation of

`17,90,000/- with interest from the respondents in

respect of the injury sustained by him in the accident

that had taken place on 16.02.2012. The Tribunal

vide its impugned judgment and award partly allowed

the claimant granting compensation of `9,91,400/-

with 6% interest per annum from the date of petition

till deposit and saddled the liability to pay the

compensation amount on the 3rd respondent-

Insurance Company. The liability has not been

disputed by the Insurance Company. Being not

satisfied with the amount of compensation awarded,

the claimant is before this Court.

4. Learned counsel for the claimant submits

that the appellant was a driver of the lorry holding

heavy motor vehicle driving licence and as a result of

the injury caused in the accident, his right hand has

been amputated above the elbow. He submits that

the doctor has assessed the disability due to

amputation at 85%, but taking into consideration the

avocation of the claimant, the Tribunal ought to have

considered the functional disability was virtually

100% and granted compensation ought to have been

awarded by the Tribunal. He submits that having

regard to the fact that there is 100% loss of income.

The Tribunal was also required to taking into

consideration the loss of future earning prospects.

5. Per contra, learned counsel for the insurer

submits that the Tribunal was justified in taking into

consideration the disability at 70% to the whole body

having regard to the schedule II of the Workmen's

Compensation Act, 1923. He submits that the

amputation in the case on hand would not result in

100% disability to the claimant as he would be in a

position to earn by doing some other work. He has

relied upon the judgment of the Apex Court in the

case of Raj Kumar V/s Ajay Kumar and another

reported in (2011) 1 SCC 343 and submits that the

disability assessed at 70% by the Tribunal was just

and proper and needs no interference. He accordingly

prays to dismiss the appeal.

6. I have carefully appreciated the arguments

addressed on both sides and also perused the

material available on record.

7. The accident in question is undisputed, so

also the fact that the claimant had suffered grievous

injuries in the said accident in which the offending

lorry bearing registration No.KA-35/A-5541 was

involved which was duly insured by the 3rd

respondent-Insurance Company. The material on

record would go to show that the claimant was

treated in three different hospitals in respect of the

injury suffered by him and finally in M.S.Ramaiah

Medical Teaching Hospital, Bengaluru, wherein he had

undergone operation on his right hand; the doctors

had amputated his right hand above the elbow. It is

not in dispute that the claimant was a driver by

avocation and he was holding a heavy motor vehicle

driving licence. The doctor who has treated the

claimant has been examined as PW3 and he has

assessed the functional disability that was caused

due to amputation at 85%. As rightly contended by

the learned counsel for the claimant having regard to

the nature of the avocation of the claimant in view of

the amputation of his right hand above the elbow, he

will not be in a position to drive any kind of vehicle

muchless a heavy motor vehicle and therefore the

actual loss of earning capacity in the case on hand is

required to be considered at 100% though the

functional disablement would be lesser in percentage.

In the case of Raj Kumar, which has been relied

upon by the learned counsel for the insurer, this

aspect has been taken into consideration and the

Hon'ble Supreme Court has said that in the case

where left hand of the claimant is amputated, the

permanent physical or functional disability may be

assessed around 60%, but if the claimant was a

driver or a carpenter, the actual loss of earning

capacity may virtually be hundred percent, if he is

neither able to drive or do carpentry. On the other

hand, if the claimant was a clerk in government

service, such amputation may not result in loss of

employment and he may still be in a position to earn

and therefore it will result in 100% disability as in

the case of a driver or carpenter. Therefore, having

regard to the said judgment, which would be squarely

applicable to the facts of the present case, I am of

the considered view that though the functional

disability has been assessed at 85% by the doctor,

the actual loss of earning capacity is required to be

considered at 100%. The respondents have not

placed any material on record to show that the

claimant had any other source of income. The

accident is of the year 2012. The claimant was a

driver by profession and though he has contended

that he was earning `200/- per day, he has failed to

prove his income. His employer who has been

examined as PW2 has deposed that he was paying

`8,000/- per month to the claimant, but has stated in

his cross-examination that he had no material to

show that he was paying a sum of `8,000/- to the

claimant who was working as a driver in his lorry.

Under the circumstances, in view of the chart

maintained by the Karnataka Legal Services Authority

for the purpose of disposal of motor accident cases in

the Lok Adalath, the notional income of the claimant

is required to be considered at `6,500/- per month.

8. Having regard to the judgment of the

Hon'ble Supreme Court in the case of Syed Sadiq

and others V/s Divisional Manager, United India

Insurance Co.Ltd., reported in 2014 ACJ 627, 40%

of his income is required to be taken into

consideration towards loss of future earning capacity.

The proper multiplier applicable to the case on hand

would be '16' and therefore on recalculation, the

claimant would be entitled for a sum of `17,47,200/-

towards loss of future earning as against `8,06,400/-

awarded by the Tribunal.

9. The compensation awarded towards pain

and suffering and medical expenses remain

unaltered. However since the loss of earning capacity

has been taken at 100% having regard to the

judgment of the Hon'ble Supreme Court in Raj

Kumar case, the claimant is not entitled for any

separate amount towards loss of future amenities.

The compensation awarded towards pain and

suffering remain unaltered. Towards loss of earning

during laid up period, the claimant is entitled for a

sum of `19,500/- as against `12,000/-. Towards

incidental expenses, the Tribunal has together

awarded a sum of `13,000/-. In my considered view

an additional sum of `17,000/- is required awarded

to the claimant towards incidental expenses and

therefore he is entitled for a sum of `30,000/- as

against `13,000/-. Therefore, the claimant is totally

entitled for a compensation of `19,56,700/- as

against `9,91,400/- which would be as follows.

1 Loss of future earning `17,47,200/-

   2    Pain and suffering             `75,000/-
   3    Medical expenses               `55,000/-
   4    Loss of earning during laid    `19,500/-
        up period
   5    Incidental expenses            `30,000/-
   6    Towards amenities              `30,000/-
        Total                       `19,56,700/-


       10.   Accordingly, the following:


                            ORDER

The Miscellaneous First Appeal is allowed in

part.

The claimant is entitled for a compensation of

` 19,56,700/- as against the amount of ` 9,91,400/-

awarded by the Tribunal. The compensation amount

awarded shall carry interest at 6% per annum.

Since the insurer is not disputed the liability,

the enhanced amount of compensation with interest

is directed to be deposited by the insurer of the

offending lorry within a period of six weeks from the

date of receipt of certified copy of this order.

The order passed by the Tribunal insofar as it