Karnataka High Court

Bharathi N vs Kishore Kumar G on 30 June, 2022

Bench: Hanchate Sanjeevkumar

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 30TH DAY OF JUNE, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

             M.F.A.NO.8133/2018 (MV-I)

BETWEEN:

BHARATHI N
W/O MAHADEV, AGED 46 YEARS,
R/O NO.22/38, 11TH CROSS,
BOVIPALYA, MAHALAKSHMIPURAM,
NOW R/AT NO.91, 4TH CROSS,
LAKSHMINAGAR,
BASAVESHWARANAGAR,
BANGALORE-560 079.
                                           ... APPELLANT
(BY SRI. SREENIVASAN M.Y. ADVOCATE)

AND:

1.     KISHORE KUMAR G.,
       S/O GOVINDAIAH,
       MAJOR, R/AT NO.99, 1ST MAIN ROAD,
       4TH CROSS, LAKSHMINAGAR,
       BASAVESHWARANAGAR,
       BANGALORE-560079.

2.     THE MANAGER,
       THE BHARATHI AXA GENERAL
       INSURANCE CO. LTD.,
       1ST FLOOR, FERMS ICON,
       SURVEY NO.28, DODDANEKUNI,
       BANGALORE-560037.
                                    ... RESPONDENTS
(BY SRI. B. PRADEEP, ADVOCATE FOR R2,
R1-NOTICE DISPENSED WITH V/O DTD:25-11-2021)
                                2


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT     AGAINST       THE     JUDGMENT             AND    AWARD
DATED:27.06.2018 PASSED IN MVC NO.4848/2017 ON
THE FILE OF THE 9TH ADDITIONAL SMALL CAUSES JUDGE
& 34TH ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-
7, BENGALURU, (SCCH-7), PARTLY ALLOWING THE CLAIM
PETITION      FOR     COMPENSATION               AND     SEEKING
ENHANCEMTN OF COMPENSATION AND ETC.,


      THIS M.F.A. COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

      The     present       appeal        is     filed   by   the

appellant/claimant      challenging       the     judgment    and

award      dated    27.06.2018       in        MVC.No.4848/2017

passed by IX Addl. Small Causes and Addl. MACT,

Bangalore (SCCH-7).

2. Brief facts of the case are as under:

On 23.06.2017 at about 7-30 p.m., when the

claimant was putting rangoli in front of her house, the

driver of Hyndai I 20 car bearing registration No.KA-

02-MM-2248 drove the same in high speed, rash and

negligent manner and dashed against her and due to

the said impact, she fell down and the Car dragged

her to a certain distance and due to impact she

sustained grievous blood injuries such as abrasion

over right temple, abrasion over right cheek, abrasion

over left medial malleolus, abrasion over front of right

knee, grazed abrasion over right scapular region,

laceration over right fifth toe, swelling and tenderness

over right knee, swelling and tenderness over left

foot, laceration over posterior aspect of right shoulder

joint and sustained 4 fractures as such dislocation of

right shoulder, fracture shaft of the proximal phalanx

of the little toe, subluxation of knee joint, fracture of

left first metacarpal. Immediately after the accident,

she was shifted to Chord Road Hospital Pvt. Ltd.,

Basaveshwaranagara, wherein she has taken

treatment as an inpatient from 23.06.2017 to

01.07.2017 and during that period, debridement, MUA

right shoulder, MUA right knee EUA, wound

debridement and closure of laceration, below elbow

case of left hand done were under GA on 23.06.2017

and right knee bridge fixator stabilization were done

under SA on 29.06.2017 and thereafter, she was

discharged with an advice to take regular checkup.

Petitioner stated that as advised by the Doctor again

on 30.07.2017 she was admitted to the Hospital and

she was discharged on 31.07.2017 and during that

period her right shoulder was operated and thereafter

she was discharged with an advice for follow-up

treatment for ligament re-construction surgery.

3. The claim petition was filed under Section

166 of MV Act by the appellant/claimant seeking

compensation. The Tribunal has partly allowed the

claim petition and awarded compensation of

Rs.12,37,099/- with interest at the rate of 6% p.a.,

from the date of petition till the date of realization.

Being aggrieved by the same, the present appeal is

filed before this Court.

4. Learned counsel appearing for the

appellant/claimant submitted that the amount of

compensation awarded by the Tribunal under the head

loss of future earning capacity due to disability is on

the lesser side as the Tribunal has taken the lesser

national income at Rs.9,000/- per month. Therefore,

prays for enhancement of compensation by taking the

notional income at Rs.11,000/- per month. Further the

Tribunal has awarded lesser compensation under

other heads, which also need to be enhanced.

Therefore, prays for enhancement of compensation.

5. Further the Tribunal has awarded

compensation of Rs.20,000/- towards future medical

expenses, but the appellant has spent more than

Rs.3,09,000/-. The doctor has given evidence that the

appellant/claimant require a sum of Rs.5,00,000/-

towards future medical expenses. Therefore, prays for

awarding a sum of Rs.5,00,000/- towards future

medical expenses. Hence, prays for enhancement of

compensation.

6. On the other hand, learned counsel for

respondent No.2 - Insurance Company vehemently

submitted that the Tribunal has correctly held the

monthly national income at Rs.9,000/- and

accordingly, awarded compensation, which is just and

proper. Further submitted that the amount of

compensation awarded under each head is correct,

proper and justified. Hence, there is no ground

available for enhancement of compensation.

Therefore, prays for dismissal of the appeal.

7. In the present case, the Tribunal has

awarded compensation under various heads as

follows:

1 For pain and sufferings, mental Rs. 70,000.00 agony, 2 Actual medical expenses Rs. 7,80,699.00 3 For Special diet and conveyance Rs. 10,000.00 4 For loss of earning during Rs. 54,000.00 treatment period 5 Permanent disability Rs. 3,02,400.00 6 Future medical expenses Rs. 20,000.00 TOTAL 12,37,099.00

8. As per Ex.P.5-wound certificate, Ex.P6-

discharge summaries, Ex.P.17- photographs, Ex.P.18-

X-ray films, Ex.P.19- MRI scan report, Ex.P.22 -

inpatient record and Ex.P.23 - case sheet and also

considering the evidence of P.W.2- doctor, it is proved

that the appellant had suffered the following injuries:

"abrasion over right temple, right cheek, left medial malleolus, front of right knee, grazed abrasion over right scapular region, laceration over right fifth toe, swelling and tenderness over right knee, swelling and tenderness over left foot, laceration over posterior aspect of right shoulder joint and sustained 4 fractures as such dislocation of right shoulder, fracture shaft of the proximal phalanx of the little toe,

subluxation of knee joint, fracture of left first metacarpal"

9. From the above said oral and documentary

evidences, it is proved that the appellant had

sustained four fractures as such dislocation of right

shoulder, fracture shaft of the proximal phalanx of the

little toe, subluxation of knee joint, fracture of left first

metacarpal, for which, the appellant underwent

surgeries to right shoulder, right leg and right hand.

The photographs -Ex.P.8 are not disputed by the

respondents, which depicts the pathetic condition of a

women. Therefore, considering the nature of injuries

sustained by the appellant/claimant, compensation of

Rs.70,000/- awarded by the Tribunal under the head

"pain and sufferings, mental agony" is on the lesser

side and the same needs to be enhanced. Accordingly,

compensation of Rs.1,50,000/- is awarded under the

head "pain and sufferings, mental agony".

10. The amount of Rs.7,80,699/- awarded by

the Tribunal under the head "Actual medical

expenses" is as per the medical bills produced. Hence,

it is kept in tact. The Tribunal has awarded

compensation of Rs.10,000/- under the head "special

diet and conveyance", which is on the lesser side. The

evidence on record prove the fact that the appellant

has undergone surgeries and she was in the hospital

as an inpatient for 20 days. Therefore, under the head

"special diet, food, conveyance and attendant

charges", compensation of Rs.30,000/- is awarded.

11. Further the Tribunal has considered the

notional income of the appellant at Rs.9,000/- per

month. The accident was occurred in the year 2017. It

is contended that the appellant was doing saree

selling business. To support the same, the appellant

has produced the saree purchase bills-Ex.P.16. Even

though, the avocation of the appellant is accepted as

she was doing saree selling business, but there is no

proof regarding the income. Therefore, notional

income at Rs.11,000/- per month is to be taken into

consideration as per the Notional Income Chart

recognized by the Karnataka State Legal Service

Authority. The Tribunal has taken the permanent

physical disability at 20% to the whole body. Upon

considering the medical evidence, both oral and

documentary, percentage of permanent physical

disability taken by the Tribunal is on the lesser side.

This Court has considered the above discussed

medical evidences and also considered the evidence of

P.W.3- doctor who has given evidence on the disability

stating that he has conducted surgeries on the right

shoulder, right leg and right hand. It is the evidence

of doctor-P.W.3 that on clinical examination, he found

the following disabilities, which are as under:

a) "Range of movements of right upper limb Abduction 0-15 degree Adduction 0-30 detree Active elevation 0-30 degree Limitation of external and internal rotation.

b) Deltoid muscle wasting.

c) Sub luxatable Shoulder joint

d) Elbow flexion Rom-full Power of biceps-Grade-3+

e) Hand grip grade-4

f) Inability to sit on the ground, and Indian toilet, climb up and down the stair without walking aid.

g) Right knee extremely tender.

h) Posterior subluxation present.

i) Fixed flexion deformity of 5 degree

j) Active Rom 0-60 degree Passive Rom 0-80 degree

k) Hip abduction, flexion grade 3

l) Knee giving away feeling with anterior drawer test positive.

4. Based on my findings and guidelines of physical disability assessment by ministry of social justice and empowerment.

a) Right upper limb 70+70+70+&)/210%3=70% Loss of ROM Loss of strength of muscle 40+40%3=26.5% Loss of co-ordination 9% 70+26.5(90-70)

=70+5.8 + 75.8% Permanent disability 19.6% for whole body

b) Hip strength loss-(40+40+40)x0.3=40% Knee Rom loss-(50+10)x0.3=20% Knee strength loss-80% =80(40(90-80)/90 =80+(400)/90 =80=4.4 =84% Disability as of now whole body 28%

5. left hand clinical examination

-Opposition-not possible 8% Cylindrical grasp-3% (large objects) Grip strength grade 3, 40% loss Pinch strength grade 3, 40% loss

Total disability 40+(8(90-40)/90 =44.4% of arm.

Total body disability=44.3%-15%"

12. Further the doctor - P.W.3 has deposed

that the appellant needs walking aid for her daily

activities during her lifetime and also needs assistance

to travel out of the home. Therefore, considering the

percentage of permanent physical disability as per the

doctor's evidence as discussed above, the permanent

physical disability for each fractured part and if 1/3rd

of the same is taken towards the whole body, then

that would be 50% of disability. Therefore,

considering the nature of injuries sustained as above

stated and disability suffered by the appellant as per

the doctor's evidence, half of the body of the appellant

has become function less and suffering with pain.

Therefore, 50% of permanent physical disability is

taken into consideration. It is stated that the appellant

was doing saree selling business and now due to the

said disabilities, the appellant is not able to carry out

her business activities as she was performing earlier.

Therefore, the functional disability is taken at 50% by

following the principles of law laid down by the

Hon'ble Apex Court in the case of Raj Kumar Vs.

Ajay Kumar and Another reported in (2011) 1 SCC

343, wherein at Paragraph Nos.12, 13 and 19, it is

held as under:

"12. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give `ready to use' disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or Discharge Certificate will not be proof of the extent of disability stated therein unless the Doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local Hospitals/Medical Colleges) and refer the

claimant to such Medical Board for assessment of the disability.

13. We may now summarise the principles discussed above :

(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).

(iii) The doctor who treated an injured-claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."

"19. The evidence showed that at the time of the accident, the appellant was aged around 25 years and was eking his livelihood as a cheese vendor. He claimed that he was earning a sum of Rs.3000/- per month. The Tribunal held that as there was no acceptable evidence of income of the appellant, it should be assessed at Rs.900/- per month as the minimum wage was Rs.891 per month. It would be very difficult to expect a roadside vendor to have accounts or other documents regarding income. As the accident

occurred in the year 1991, the Tribunal ought to have assumed the income as at least Rs.1500/- per month (at the rate of Rs.50/- per day) or Rs.18,000/- per annum, even in the absence of specific documentary evidence regarding income."

13. The appellant was aged 45 years as on the

date of the accident and the appropriate multiplier

applicable is "14". Accordingly, "loss of future earning

capacity due to disability" is calculated and quantified

as follows:

Rs.11,000/- x 50% x 14 x 12 = Rs.9,24,000/-

14. Further, the Tribunal has awarded

compensation of Rs.54,000/- considering the national

income at Rs.9,000/- per month for 6 months. But as

above stated, the notional income is taken at

Rs.11,000/- per month, therefore, for a period of 6

months, the loss of income during laid up period and

treatment period comes to Rs.66,000/-

(Rs.11,000/- x 6 months) is awarded.

15. Further the Tribunal has awarded

compensation of Rs.20,000/- towards future medical

expenses. Learned counsel for the appellant/claimant

submitted that the appellant has spent amount for

surgeries after disposal of the petition before the

Tribunal and in this regard, the appellant has filed

interlocutory application to produce the additional

documents, which are receipts and medical bills of

Hosmat Hospital Private Limited for having undergone

future medical treatment. Hence, I do not find any

reason to discard this evidence. Accordingly, the

additional evidence produced, which are medical final

bills and discharge summary by the Hosmat Hospital

Private Limited for incurring future medical expenses

is accepted by allowing the application as per Order

41 Rule 27 of CPC. By this additional evidence, it is

proved that the appellant had spent a sum of

Rs.3,09,000/- towards future medical expenses after

disposal of the petition before the Tribunal.

Accordingly, the appellant is entitled for enhanced

compensation under the head future medical

expenses.

16. Learned counsel for the appellant

submitted that the amount spent towards future

medical expenses i.e., at Rs.3,09,000/- are not only

the amount spent towards future medical expenses,

but still the appellant is required further more amount

for treatment in future. The doctor has stated that the

appellant is required Rs.5,00,000/- towards medical

expenses in future. Therefore, prays to award

compensation of Rs.5,00,000/- towards future medical

expenses. Considering the nature of injuries

sustained, as discussed above in detail, even though,

the appellant has spent a sum of Rs.3,09,000/-

towards future medical expenses after delivering of

judgment by the Tribunal, but still the appellant may

require some amount towards future medical

expenses as the appellant needs assistance to do her

day to day activities and also needs assistance to

travel out of the home and also she may require

future medical treatment for complications, which may

occur in future. Therefore, considering all these

aspects and also considering the additional evidence

as discussed above, compensation of Rs.3,50,000/-

is awarded under the head future medical expenses.

17. The Tribunal has not awarded any

compensation under the head loss of amenities.

Considering the nature of injuries sustained and

disability suffered as discussed above in detail, the

appellant is a women who has to suffer throughout

her life since her right shoulder, right leg and left wrist

is affected due to fracture. Therefore, the appellant

has suffered discomfort, mental agony, inconvenience

and enjoyment in life. Accordingly, compensation of

Rs.75,000/- is awarded under the head loss of

amenities.

18. The appellant/claimant is entitled to the

compensation as follows:

1 For pain and sufferings, Rs. 1,50,000.00 mental agony, 2 Actual medical expenses Rs. 7,80,699.00 Kept in tact 3 For Special diet and Rs. 30,000.00 conveyance 4 For loss of future Rs. 9,24,000.00 earning capacity due to disability 5 For loss of earning during Rs. 66,000.00 treatment period 6 Loss of amenities Rs. 75,000.00 7 Future medical expenses Rs. 3,50,000.00 TOTAL 23,75,699.00

19. The Tribunal has awarded the

compensation of Rs.12,37,099/-, but the

appellant/claimant is entitled to total compensation of

Rs.23,75,699/-. Hence, the appellant/claimant is

entitled to enhanced compensation of

Rs.11,38,600/- (Rs.23,75,699/- - Rs.12,37,099/-).

Therefore, the appellant/claimant is entitled to

enhanced compensation of Rs.11,38,600/- along

with interest at the rate of 6% per annum from the

date of petition till the date of realization.

20. Accordingly, I pass the following :

ORDER