Karnataka High Court

Sri K Nataraj vs M/S Sri Bannari Amman Transport on 23 March, 2022

Bench: Hanchate Sanjeevkumar

                           1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 23rd DAY OF MARCH, 2022

                        BEFORE

     THE HON'BLE Mr. JUSTICE HANCHATE SANJEEVKUMAR

MISCELLANEOUS FIRST APPEAL NO.6438/2012 (MV)

BETWEEN:

SRI. K. NATARAJ,
S/O KARUPANNA GOUNDER,
AGED 56 YEARS,
R/A. NO.1623, EAST END B MAIN ROAD,
9TH BLOCK, JAYANAGAR,
BANGALORE-560069.
                                       ... APPELLANT

(BY SRI.S.S. MAHENDRA, ADVOCATE )


AND:

1.      M/S. SRI. BANNARI AMMAN TRANSPORT,
        13/20, B.M.S COLONY,
        MYSORE TRUNK ROAD,
        RANGASAMUDRAM POST,
        SATHYAMANGALAM,
        TAMIL NADU - 638 402

2.      THE REGIONAL MANAGER,
        THE NEW INDIA ASSURANCE CO. LTD.,
        NO.2-B, UNITY BUILDING ANNEX.
        P. KALINGA RAO ROAD, (MISSION ROAD),
        BANGALORE - 560 027
                                     ... RESPONDENTS

(R1- NOTICE DISPENSED WITH,
SRI. S.KRISHNA KISHORE, ADVOCATE FOR R2)
                             2

      THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD DATED
29.7.2011 PASSED IN MVC NO.2136/2010 ON THE FILE OF
THE JUDGE, MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION AND
ETC.,

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

                     JUDGMENT

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

Motor Vehicles Act, by the appellant-claimant challenging

the judgment and award dated 29.07.2011, passed in MVC

No.2136/2010, on the file of MACT, Bangalore, seeking

enhancement.

Brief facts:

2. On 04.11.2009, at about 4.30 p.m., the

appellant was riding Bajaj Boxer bearing registration

No.TN-36-Y-4615, proceeding on Kadambur Road near

Padikere Kodikal turn. At that time, the driver of the SBT

Bus bearing registration No.TN-36-Y-1638, came from the

opposite direction in a high speed, rash and negligent

manner and dashed against the motor cycle in which the

appellant was riding. Due to the impact, the appellant fell

down and sustained grievous injuries and was shifted to

Sathyamangalam Hospital and then to Ganga Medical

Center Hospital, Coimbatore.

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, and awarded a compensation of Rs.2,78,810/-,

along with interest at 8% 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 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.

7. The compensation awarded by the Tribunal is

as follows:

Pain, Injuries And Suffering : Rs. 35,000/- Medical And Incidental Expenses : Rs. 1,45,110/-

                                                  :     Rs.       10,000/-
 Loss of earnings during laid of period           :     Rs.       17,500/-
 Loss of future earning capacity                  :     Rs.       46,200/-
 Loss of amenities in future life                 :     Rs.       25,000/-
                                       TOTAL :          Rs. 2,78,810/-

8. The appellant was doing coconut business and

contended that he was earning Rs.12,000/- per month.

The appellant - claimant has suffered fracture of both

bones of right leg i.e., tibia and fibula. Therefore,

considering this, the amount awarded by the Tribunal

under the head 'Injuries, Pain And Suffering' at

Rs.35,000/- requires to be enhanced. Accordingly, it is

enhanced to Rs.70,000/-.

9. The Tribunal has awarded a sum of

Rs.10,000/- towards 'Incidental Expenses'. Considering the

fact that the appellant was admitted in the hospital as

inpatient for three times, totally for 38 days. Therefore, he

must have spent considerable amount towards

transportation, conveyance, nourishment, etc. Therefore, a

sum of Rs.40,000/- is awarded towards 'Incidental

Expenses'.

10. The Tribunal has awarded a sum of

Rs.10,500/- towards 'Loss Of Earning During Laid Up

Period' by taking income Rs.3,500/- per month and

calculating the laid up period for three months. But

considering the business of the appellant that he was doing

coconut business, a notional income of Rs.5,000/- is taken

as monthly income of the appellant, as per the chart of

Karnataka State Legal Services Authorities, since the

accident has occurred in the year 2009. Accordingly, the

income of the appellant is assessed as Rs.5,000/- per

month and if the laid up period is taken as Eight Months,

the appellant is entitled for a sum of Rs.40,000/-

(Rs.5,000 x 8 months), under the head 'Loss Of Earning

During Laid Up Period'.

11. The compensation awarded under the head

'loss of future amenities in life' at Rs.15,000/-, is not

sufficient and is on a lower side and the same requires to

be enhanced. Accordingly, it is enhanced to Rs.40,000/-.

12. The Tribunal has erred in not awarding any

compensation towards 'Future Medical Expenses'. PW-2

Doctor has deposed that the appellant has to undergo one

more surgery in future for removal of implants, which

would cost about Rs.10,000/- to Rs.15,000/-. Therefore, a

compensation of Rs.15,000/- is awarded towards 'Future

Medical Expenses'.

13. The Tribunal has awarded a compensation of

Rs.46,200/- towards 'Loss of Future Earning Capacity' by

taking 10% 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."

14. 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

sustained 21% of permanent functional disability to the

whole-body. Therefore, considering the injuries sustained

by the appellant and his age during the time of accident,

the disability stated by the Doctor, PW-2 is not on higher

side. Even though the second respondent - insurance

company is disputing the percentage of functional

disability, but contrary to the evidence of PW-2, there is no

evidence produced by the Insurance Company. PW-2 is the

expert who is the Doctor. After assessing the appellant

completely, he has given certificate that the appellant has

sustained 21% permanent functional disability. Therefore,

I do not find any merit in the submission made by the

learned counsel for the second respondent - insurance

company. Accordingly, the disability is taken as 21%,

considering the injuries sustained by the appellant as

stated above.

15. 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 Corpn

And Another reported in AIR 2009 SC 3104, is '11',

since the appellant was aged 55 years at the time of

accident. Therefore, the compensation under the head

'Loss Of Future Earning Capacity' is recalculated and

quantified as follows:

Rs.5,000 x 21/100 x 11 x 12 = Rs.1,38,600/-

16. The learned counsel for the appellant

submitted that the appellant has totally spent a sum of

Rs.5,12,877/-. But the Tribunal has awarded Rs.1,45,110/

towards 'Medical Expenses and Hospitalization Charges'.

Therefore, he prays to enhance the compensation on this

head. The learned counsel appearing for the second

respondent - insurance company submitted that the

Tribunal has discussed in this regard and has made a

correct assessment of the medical bills and hospitalization

charges and accordingly awarded the compensation.

Therefore, there is no need to enhance. The Tribunal has

discussed that some advance bills are included and also

the Tribunal has discarded physiotherapy treatment and

ambulance bills. Therefore, came to the conclusion that the

appellant is entitled for only a sum of Rs.1,45,110/-.

17. In view of this disputed fact, this Court has

meticulously perused all the medical bills and receipts

produced by the appellant before the Tribunal. It is true

that advance bills are also included for the total

calculation, but the same has been rightly discarded by the

Tribunal. But the Tribunal has erred in not awarding the

compensation towards 'physiotherapy treatment and

ambulance charges'. However, Ambulance charges and

physiotherapy treatment are also part of the medical

expenses and hospitalization charges. Accordingly, the

appellant is entitled for the said expenses on this aspect.

Further, this Court has perused all the medical bills and

receipts and after deducting advance bills, the total

medical expenses and hospitalization charges paid by the

appellant comes to Rs.2,44,144.30 towards 'Medical

Expenses and Hospitalization Charges' as discussed.

18. Hence, the appellant is entitled for a total

enhanced compensation, under various heads as follows:

Pain, Injuries And Suffering : Rs. 70,000/-

Incidental Expenses                            :    Rs.        40,000/-
Medical Expenses                               :    Rs.    2,44,144/-
Loss of earnings during laid of period         :    Rs.        40,000/-
(Rs.5,000 x 8 months)

Loss of future earning capacity                :    Rs.    1,38,600/-
(Rs.5,000 x 21/100 x 11 x 12)

Loss of Amenities In Future Life               :    Rs.        40,000/-
Future Medical Expenses                        :    Rs.        15,000/-
                                    TOTAL :         Rs. 5,87,744/-

19. Therefore, the appellant is awarded a total

compensation of Rs.5,72,744/- as against the

compensation awarded by the Tribunal at Rs.2,78,000/-.

Hence, the appellant is entitled for an additional

compensation of Rs.3,09,744/- (Rs.5,72,744 -

Rs.2,78,000), 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.3,09,744/- (Rupees