Karnataka High Court

Eregowda vs Amid Pasha on 10 June, 2022

Bench: Hanchate Sanjeevkumar

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JUNE, 2022

                         BEFORE

 THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

             M.F.A.NO.2878/2017 (MV-I)


BETWEEN:

EREGOWDA,
S/O KEMPEGOWDA,
AGED ABOUT 43 YEARS,
R/O NO.82, KACHUVANAHALLI VILLAGE,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT.

NOW R/AT:C/O VENKATEGOWDA,
GUNDAPURA VILLAGE,
HALAGUR HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT.
                                             ... APPELLANT

(BY SRI SHRIPAD V.SHASTRI, ADVOCATE APPEARING THROUGH V/C)

AND:

1.     AMID PASHA,
       S/O SYED PEET L.T.,
       R/O NO.710, HALAGURU VILLAGE,
       MALAVALLI TALUK,
       MANDYA DISTRICT,
       (OWNER OF THE LORRY BEARING REG.
       NO.:KA.10.846)
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2.    IFFCO TOKIO GEN. INS.CO.LTD.,
      REGIONAL OFFICE,
      REG. BY REGIONAL MANAGER,
      SRI SHANTHI TOWERS, NO.141,
      5TH FLOOR, 34D MAIN,
      EAST TO NGEF LAYOUT,
      KASTURINAGAR, BANGALORE,
      (POLICY NO.1-207X38C P400
      VALID FROM 31.3.2013 TO
      30.3.2014)
                                              ... RESPONDENTS

(BY SRI D.S. SRIDHAR, ADVOCATE FOR R2,
R1-NOTICE DISPENSED WITH V/O DT:15/11/2017)


      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT     AGAINST       THE     JUDGMENT          AND      AWARD
DATED:18.01.2017 PASSED IN MVC NO.1595/2015 ON
THE   FILE   OF   THE       SENIOR   CIVIL     JUDGE,      MACT,
MALAVALLI, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION         AND     SEEKING        ENHANCEMENT      OF
COMPENSATION AND ETC.,


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


                      JUDGMENT

      The    present        appeal     is     filed   by     the

appellant/claimant     challenging     the     judgment     and

award        dated          18.01.2017          passed        in

MVC.No.1595/2015 by the Senior Civil Judge and

MACT, Malavalli.

2. The brief facts of the case are as under:

On 15.02.2014 the claimant was riding the Hero

Honda Passion Pro Motor Cycle bearing Reg.No.KA-45-

J-3252 on the left side on Mysore Road, Kanakapura

Town, and when he reached near SBI Bank, at about

3.00 pm., at that point of time, one Lorry bearing

Reg.No.KA-10-846 came from behind from Halaguru

side in a rash and negligent manner, endangering to

human life and dashed to the claimant. Due to the

accident, the claimant fell down, the front wheel of the

said Lorry ran over on right hand of the claimant and

sustained grievous injuries.

3. The claim petition was filed by the

appellant/claimant seeking compensation. The

Tribunal has partly allowed the claim petition and

awarded compensation of Rs.7,87,000/- with interest

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

deposit. Being aggrieved by the same, the present

appeal is filed before this Court.

4. Heard the arguments of learned counsel on

both sides and perused the materials on record.

5. Learned counsel for the appellant-claimant

submitted that the amount of compensation awarded

by the Tribunal on all the heads is meager one.

Therefore, prays for enhancement of compensation.

Further submitted that the appellant-claimant

sustained amputation of right hand upto the shoulder

level and the appellant was an agriculturist and also

was doing milk vending business, which certainly

affects his future prospects and also the loss of

earning capacity due to 100% of disability. Therefore,

prays for holding the disability at 100% and also prays

for enhancement of compensation under all the heads

including loss of future prospects and also loss of

earning capacity due to disability. Therefore, prays to

allow the appeal by enhancing the compensation.

6. On the other hand, learned counsel for

respondent No.2-Insurance Company submitted that

the Tribunal has correctly assessed and determined

the compensation on each head. Therefore, there is

no need to make enhancement of compensation.

Further submitted that the notional income and the

percentage of disability taken by the Tribunal is

correct and the amount of compensation awarded

under the head "loss of future income due to

permanent disability" is correct, which needs no

interference.

7. Further submitted that the appellant-

claimant is not entitled for compensation under the

head loss of future prospects in the case of injuries.

Therefore, submitted that the amount of

compensation awarded on each head is correct, and it

needs no interference. Therefore, prays to dismiss the

appeal.

8. The Tribunal has awarded the

compensation under various heads as follows:

Pain and sufferings                          Rs. 40,000/-
Medical expenses                             Rs.4,95,500/-
Attendant, Nourishment,       Food       and Rs. 10,000/-
Transport
Future Medical Expenses                             Rs. 10,000/-

Permanent Disability                                Rs.2,31,840/-
               Total                                Rs.7,87,340/-

In the judgment and award passed by the

Tribunal, the compensation of Rs.7,87,340/- is

rounded off to Rs.7,87,000/-.

9. Ex.P.5 is the wound certificate, Ex.P.7 is

the discharge summary, Ex.P.111 is the case sheet

Ex.P.113 is X-ray. All these documentary evidence

prove the fact that the appellant is having amputated

right upper limb at shoulder level with tenderness

over stump and axillary wall. Therefore, it proves that

the right hand of the appellant was amputated above

the elbow and upto the shoulder level and the

appellant was constrained to admit to the hospital.

Therefore, the amount of compensation awarded by

the Tribunal on each head is inadequate and the same

needs to be enhanced.

10. The Tribunal has awarded compensation of

Rs.40,000/- only towards "pain and suffering" and the

same needs to be enhanced. Accordingly, a sum of

Rs.1,00,000/- is awarded under the head "pain and

sufferings". The Tribunal has awarded compensation

of Rs.4,95,500/- towards "medical expenses and

hospitalization charges", which is based on the

medical bills and prescriptions and other medical

records produced. Therefore, reconsidering the same

on this aspect, the quantum of compensation awarded

under this head is correct. Hence, it is kept in tact.

11. Further the Tribunal has awarded

compensation of Rs.10,000/- towards "attendant,

nourishment, food and transport" and the same is

found to be correct and sufficient. The appellant had

suffered fracture of right shoulder and his right upper

limb was amputated upto the shoulder level. The

appellant was constrained to admit to the hospital for

multiple times. Thereafter, the appellant was also

required to go to the hospital for further treatment.

Therefore, the compensation of Rs.10,000/- awarded

by the Tribunal under the head "Attendant,

Nourishment, Food and Transport" is on the lesser

side. Hence, considering the factors as above

discussed, the quantum of compensation under the

head "Attendant, Nourishment, Food and Transport" is

to be enhanced. Accordingly, it is enhanced to

Rs.20,000/-.

12. Further the Tribunal has awarded

compensation of Rs.10,000/- towards "future medical

expenses". The appellant has suffered amputation of

right hand. Just because, the right hand of the

appellant was amputated, it does not mean that the

appellant is not in need of any future medical

expenses. The appellant may purchase artificial

equipment of limb in future and also the appellant

may need surgery in future for removal of implant

fixed above the shoulder. Considering the year of

accident as 2014, nature of injuries sustained by the

appellant and the amount required for removal of

implant fixed above the shoulder, the compensation of

Rs.50,000/- is awarded under the head "future

medical expenses".

13. The Tribunal has awarded compensation of

Rs.2,31,840/- under the head "loss of future income

due to permanent disability" by holding the notional

income at Rs.6,000/- per month and 23% of disability

towards the whole body. In the present case, the

appellant was an agriculturist and was doing milk

vending business. The appellant has produced

Ex.P.106-Silk Worm rearers licence cum pass book,

Ex.P.107-Milk supply card and Ex.P.108-milk supply

statement, which prove the fact that the appellant

was doing agriculture, growing sericulture and was

also doing milk vending business. Just because, the

amount is not entered in the milk supply card and

milk supply statement that cannot be said that the

appellant was not doing agricultural work and also not

doing milk vending business. Hence, the notional

income at Rs.8,500/- is to be taken into consideration

as per the notional income chart recognized by the

Karnataka State Legal Service Authority. Accordingly,

monthly notional income is taken at Rs.8,500/-.

14. In the present case, the appellant was

doing agricultural work and was also doing milk

vending business. Due to amputation of right hand

upto the shoulder level, the appellant is not able to do

any agricultural work including milk vending business,

which requires more physical strength. As the

appellant had suffered amputation of right hand,

certainly, it affects future prospects in life. In the

case of injury where the injured suffers functional

disability of above 85% to 90% or even 100%,

certainly, it affects loss of future prospects in life, as

the injured persons in these types of cases are not

able to work. Therefore, the appellant in the present

case who has suffered amputation of right hand upto

the shoulder level, certainly, is entitled for

compensation under the head "loss of future

prospects". In this regard, I place reliance on the

judgment of the Hon'ble Apex Court in the case of

Syed Sadiq and Others Vs. Divisional Manager,

United India Insurance Company Limited

reported in (2014) 2 SCC 735.

15. In Syed Sadiq's case, the facts are that the

claimant who is a vegetable vendor had sustained

85% of functional disability and the occupation of the

vegetable vending is not confined to selling vegetables

from a particular location, rather it involves procuring

vegetables from the wholesale market or the farmers

and then selling it off in the retail market. This often

involves selling vegetables in the cart, which requires

100% mobility. Therefore, assessed the functional

disability at 85% and also granted 50% of increment

in future loss of income. The said principles of law laid

down in Syed Sadiq's case are squarely applicable to

the present case also. In the present case, the

appellant has suffered amputation of right hand, but

the Tribunal has considered the functional disability at

23% only, which is not sufficient and also not practical

one considering the nature of injuries sustained and

sufferings undergone by the appellant. The appellant

was doing agricultural work and also was doing milk

vending business. Now, he cannot do those works

without use of right hand. Therefore, it amounts to

loss of 100% of mobility of the appellant. Hence, the

functional disability is to be taken into consideration at

90% by following the principles of law laid down by

the Hon'ble Apex Court in Syed Sadiq's case and also

in the case of Raj Kumar Vs. Ajay Kumar and

Another reported in (2011) 1 SCC 343.

16. In the present case, the appellant was aged

41 years as on the date of the accident. Therefore,

following the judgment of National Insurance Co.

Ltd -v- Pranay Sethi and Others reported in

AIR 2017 SC 5157, 25% of income has to be

added towards calculation of compensation under the

head loss of future prospects. The appropriate

multiplier is "14" according to the age of the appellant

as per the principles of law laid down in the case of

Sarla Verma and Others -Vs- Delhi Transport

Corporation and Another reported in AIR 2009

SCC 3104. Therefore, the loss of future earning

capacity due to functional disability including loss of

future prospects in life are calculated and quantified

as follows:

Rs.8,500/- + Rs.2,125/- (25% of Rs.8,500/-) = Rs.10,625/-

Rs.10,625/- x 90% x 14 x 12= Rs.16,06,500/-

17. Since, the appellant had suffered

amputation of right hand, certainly, he lost enjoyment

in married life, discomfort and to do day to day

normal work, he always need assistance of other

family members. Therefore, under the head of "loss of

amenities" the Tribunal has not awarded any

compensation. Therefore, a sum of Rs.1,00,000/- is

awarded under the head "loss of amenities".

18. The appellant/claimant is entitled to the

compensation as follows:

Pain and sufferings                           Rs. 1,00,000/-
Medical expenses                              Rs. 4,95,500/-

Attendant,     Nourishment,         Food,     Rs.    20,000/-
Transport
Future Medical Expenses                       Rs.    50,000/-

Loss of future earning capacity due           Rs.16,06,500/-

to functional disability including loss of future prospects in life Loss of amenities Rs. 1,00,000/-

Total Rs.23,72,000/-

19. The Tribunal has awarded compensation of

Rs.7,87,340/-, but the appellant/claimant is entitled

to total compensation of Rs.23,72,000/-. Hence, the

appellant/claimant is entitled to enhanced

compensation of Rs.15,84,660/- (Rs.23,72,000/- -

Rs.7,87,340/-). Therefore, the appellant/claimant is

entitled to enhanced compensation of

Rs.15,84,660/- along with interest at the rate of

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

deposit.