Bhavya vs Mumtaz Pasha
2022 Latest Caselaw 8963 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 16TH DAY OF JUNE, 2022

                          BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

     MISCELLANEOUS FIRST APPEAL NO.5083/2018 (MV)

BETWEEN:

BHAVYA
D/O. CHANDRASHEKAR S.
AGED ABOUT 25 YEARS,
R/AT. RAJKUMAR ROAD,
9TH CROSS, VIJAYANAGAR,
RAMANAGARA TOWN-562159.
                                             ... APPELLANT

(BY SRI. SHANTHARAJ K., ADVOCATE - VC)

AND:

1.      MUMTAZ PASHA
        S/O. SABU SAB
        AGE MAJOR,
        R/AT. 2319, DIV. NO.2,
        MUSLIM BLOCK, PETE BEEDI,
        MALAVALLI TOWN
        MANDYA DISTRICT-571430.

2.      UNITED INDIA INSURANCE COMPANY LIMITED
        BY ITS MANAGER
        R.V.R. COMPLEX, OPP. LIC OFFICE,
        BEHIND KSRTC BUS STAND, IJOOR,
        RAMANAGARA TOWN-562159.
                                         ... RESPONDENTS

(BY SRI. S. SRISHAILA, ADVOCATE FOR R2;
 R1 - NOTICE DISPENSED WITH V/O. DATED 16.06.2022)

        THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 26.03.2018
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PASSED     IN   MVC   NO.110/2016            ON     THE   FILE   OF   THE
ADDITIONAL MACT, AND ADDITIONAL SENIOR CIVIL JUDGE,
RAMANAGARA, 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

This appeal is filed under Section-173(1) of the

Motor Vehicles Act, 1988, (hereinafter referred to as 'MV

Act' for brevity) by the appellant-claimant challenging the

judgment and award dated 26.03.2018, passed in MVC

No.110/2016, on the file of Additional M.A.C.T. &

Additional Senior Civil Judge at Ramanagara, (hereinafter

referred to as 'the Tribunal' for brevity) seeking

enhancement of compensation.

Brief facts:

2. On 24.11.2015 at about 4.30 p.m. the appellant -

claimant was proceeding in a motor cycle bearing Reg.

No.KA-43-E-1271 along with her husband as a pillion rider

and when the appellant-claimant reached near Kaniminiki

Colony, Bangalore at the same time the driver of the

canter bearing Reg. No.KA-40-3632 driven by its driver in

rash and negligent manner endangering to human life and

suddenly crossed the road towards right side and dashed

to the appellant - claimant's vehicle. As a result, appellant

- claimant fell down and sustained grievous injuries all

over the body. The appellant was shifted to Raghunath

Hospital, Ramanagara for treatment and she had spent

more than Rs.50,000/- towards medicine, food and

travelling expenses. Appellant was hale and healthy prior

to accused and was earning a sum of Rs.500/- as

condiment maker and now she is unable to do any work

and is suffering from physical and mental agony. The

accident had taken place due to rash and negligent driving

by the driver of the canter and police have registered a

case against him.

3. Hence, a claim petition was filed by the appellant

under Section-166 of the M.V. Act, claiming compensation

for the injuries sustained in the accident. The Tribunal on

appreciating the materials on record, allowed the petition

in part with cost, and awarded compensation of

Rs.33,100/- along with interest at 7% per annum from the

date of petition till the date of deposit. The Tribunal held

respondent Nos.1 and 2 therein, jointly and severally liable

to pay the compensation.

4. Heard arguments of the learned counsel for the

appellant and the learned counsel for respondent No.2 -

insurance company and perused the materials on record.

5. The learned counsel for the appellant

submitted that the appellant had suffered fracture to the

left hand wrist, which affects her earning capacity as she

was doing condiment business. The Tribunal has taken the

functional disability at 2% which is on the lower side. The

quantum of compensation awarded under various heads is

on lesser side. Therefore, seeks for enhancement of the

compensation.

6. On the other hand, the learned counsel

appearing for the second respondent - insurance company

submits that the Tribunal is justified in passing the

impugned judgment and award and there is no ground for

enhancement. That the compensation amount as awarded

by the Tribunal is sufficient and adequate. Hence, prays to

dismiss the appeal.

7. The compensation awarded by the Tribunal is

as follows:

Expenses towards treatment, : Rs. 2,000/-

 hospitalization,    medicines    and
 miscellaneous expenses
 Nourishment and attendant charges     :   Rs.    2,000/-
 Loss of earnings during period of :       Rs.    2,500/-
 treatment i.e., laid-up period
 Future loss of future earnings on :       Rs.   21,600/-
 account of permanent disability
 Pain and suffering                :       Rs.    3,000/-
 Loss of amenities and enjoyment of :      Rs.    2,000/-
 life
                              TOTAL :      Rs.   33,100/-

8. The appellant was doing condiment business

and contended that she was earning Rs.500/- per month.

The appellant - claimant had suffered fracture of lower end

of left radius and deformity of left wrist. The Doctor has

stated that the appellant had suffered 10% permanent

disability, but the Tribunal has considered the functional

disability to an extent of 2% only to the whole body.

Therefore, considering this, the amount awarded by the

Tribunal under the head 'Pain And Suffering' at Rs.3,000/-

requires to be enhanced. Accordingly, it is enhanced to

Rs.20,000/-.

9. The Tribunal has awarded a sum of Rs.2,000/-

towards 'Expenses towards treatment, hospitalization,

medicines and miscellaneous expenses', which is on the

lower side. Hence, the same is enhanced to Rs.10,000/-.

The compensation of Rs.2,000/- towards 'nourishment and

attendant charges' is found to be on the lesser side, and

therefore, the same is enhanced to Rs.10,000/-. The

Tribunal has awarded Rs.2,000/- towards 'loss of amenities

and enjoyment of life, which is on the lower side. The

appellant had suffered fracture in the left hand wrist, which

is grievous in nature, and therefore, the same is enhanced

to a sum of Rs.10,000/-.

10. The Tribunal has awarded a sum of Rs.2,500/-

towards 'Loss Of Earning During Laid Up Period'.

Considering the nature of injuries sustained and the

avocation of the appellant and treatment taken by the

appellant, the appellant must have lost income for a period

of one month. As per the chart of Karnataka State Legal

Services Authorities, since the accident has occurred in the

year 2015, the income of the appellant is assessed as

Rs.9,000/- per month and if the laid up period is taken as

one Month, the appellant is entitled for a sum of

Rs.9,000/-, under the head 'Loss Of Earning During Laid

Up Period'.

11. The Tribunal has awarded a compensation of

Rs.21,600/- towards 'Loss of Future Earning on account of

permanent disability' by taking 2% as functional disability.

The criteria for calculating functional disability is

elaborately discussed by the Hon'ble Supreme Court in the

case of Raj Kumar Vs. Ajay Kumar and Another,

reported in (2011) 1 SCC 343, at para Nos.12,

13 and 19, which reads as follows:

"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."

12. Therefore, considering the principles laid down

by the Hon'ble Supreme Court stated supra, and the

injuries suffered by the appellant as discussed above, the

Doctor, PW-2 has deposed that the appellant had suffered

permanent physical impairment of upper limb to an extent

of 10%. The Tribunal has viewed that the appellant has

suffered disability only to an extent of 2% to the whole

body. The appellant is a woman aged about 22 years as on

the date of accident and doing condiment business and

certainly the fracture caused to the left hand wrist affects

her earning capacity, and therefore, it is appropriate to

hold the functional disability to the whole-body at 6%. In

the absence of proof of income, the notional income of

Rs.9,000/- is considered, as recognised by the Karnataka

Legal Services Authority. The appellant was 22 years old

at the time of the accident, therefore, the appropriate

multiplier applicable as per the judgment of the Hon'ble

Supreme Court, in the case of Smt.Sarla Verma &

Others. Vs. Delhi Transport Corporation And Another

reported in AIR 2009 SC 3104, is '18'. Therefore, the

compensation under the head 'Loss Of Future Earning

Capacity' is recalculated and quantified as follows:

Rs.9,000 x 6/100 x 18 x 12 = Rs.1,16,640/-

13. Hence, the appellant is entitled for a total

enhanced compensation, under various heads as follows:

Expenses towards treatment, : Rs. 10,000/-

 hospitalization,    medicines    and
 miscellaneous expenses
 Nourishment and attendant charges     :   Rs.     10,000/-
 Loss of earnings during period of :       Rs.         9,000/-
 treatment i.e., laid-up period
 Future loss of future earnings on :       Rs.   1,16,640/-
 account of permanent disability
 Pain and suffering                :       Rs.     20,000/-
 Loss of amenities and enjoyment of :      Rs.     10,000/-
 life
                              TOTAL :      Rs. 1,75,640/-

19. Therefore, the appellant is awarded a total

compensation of Rs.1,75,640/- as against the

compensation awarded by the Tribunal at Rs.33,100/-.

Hence, the appellant is entitled for an additional

compensation of Rs.1,42,540/- (Rs.1,75,640/- -

Rs.33,100/-), along with interest at 6% per annum from

the date of filing of the petition till deposit.

20. Accordingly, I pass the following:

ORDER

i. The appeal is allowed in part.

      ii.      The appellant is entitled for an additional

               compensation         of     Rs.1,42,540/-          (Rupees

               One    Lakh     Forty         Two      Thousand          Five

               Hundred     and           Forty      Only),      along   with

interest at 6% per annum from the date of

filing of the petition till deposit in addition to

what has been awarded by the Tribunal.

iii. Registry is directed to return the Trial Court

Records to the Tribunal, along with certified

copy of the order passed by this Court

forthwith without any delay.

iv. Draw award accordingly.

Sd/-

JUDGE

Hnm