Karnataka High Court
The Oriental Insurance Co Ltd vs Sri Ranjiv Singh @ Rajiv Singh on 23 May, 2023
Bench: C M Joshi
-1-
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
MISCELLANEOUS FIRST APPEAL NO. 10275 OF 2012 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8526 OF 2012
IN M.F.A.NO.10275 OF 2012
BETWEEN:
RANJIV SINGH @ RAJIV SINGH,
S/O.CHAMANLAL, AGED ABOUT 23 YEARS,
R/AT NO.3, 15TH MAIN,
H.A.L.IIND STAGE,
INDIRANAGAR, BANGALORE - 560 038.
...APPELLANT
Digitally signed by (BY SRI.DEEPAK.J, ADVOCATE)
T S NAGARATHNA
Location: High
Court of Karnataka
AND:
1. SHEIK MOHAMMED OMAR,
S/O ABDUL GAFOOR,
RESIDING AT NO.120/B,
SRIKANTH CHAMBERS,
NEAR R.K. STUDIOS,
TROMBAY ROAD MUMBAI - 400 071.
2. THE ORIENTAL INSURANCE
COMPANY LIMITED,
REGIONAL OFFICE NO.44/45,
LEO SHOPPING COMPLEX,
-2-
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
RESIDENCY ROAD,
BANGALORE - 560 025.
....RESPONDENTS
(BY SRI. S.V.SHASHTRI, ADVOCATE FOR R1
SRI.C.R.RAVISHANKAR, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:03.7.2012 PASSED IN MVC
NO.6603/2010 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO.8526/2012
BETWEEN:
THE ORIENTAL INSURANCE
COMPANY LIMITED,
REGIONAL OFFICE NO.44/45,
LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE - 560 025.
BY ITS CONTITUED ATTORNEY.
...APPELLANT
(BY SRI.C.R.RAVISHANKAR, ADVOCATE)
AND:
1. SRI RANJIV SINGH @ RAJIV SINGH,
AGED ABOUT 25 YEARS
S/O SRI CHAMANLAL @ CHAMANLAL,
R/AT NO.3, 15TH MAIN ROAD,
H.A.L. IIND STAGE,
INDIRANAGAR,
BANGALORE - 560 038.
2. SRI SHEIK MOHAMMED OMAR,
S/O SRI ABDUL GAFOOR,
RESIDING AT NO.120/B,
SRIKANTH CHAMBERS,
-3-
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
NEAR R.K. STUDIO,
SIO TROMBAY ROAD
MUMBAI - 400 071.
....RESPONDENTS
(BY SRI. DEEPAK. J, ADVOCATE FOR R1
SRI.K.RANJAN KUMAR, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:03.07.2012 PASSED IN MVC
NO.6603/2010 ON THE FILE OF THE III ADDL. SENIOR CIVIL
JUDGE AND MEMBER, MACT, BANGALORE, AWARDING A
COMPENSATION OF RS.9,52,036/- WITH INTEREST @ 8% P.A.
FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.10275/2012 is preferred by the petitioner
and MFA No.8526/2012 is preferred by the Insurance
Company against the judgment and award dated
03-07-2012 passed in MVC No.6603/2010 by the learned
III Additional Senior Civil Judge and Member, MACT,
Bangalore.
2. By the said judgment, the Tribunal has partly
allowed the claim petition and awarded a sum of
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
Rs.9,52,036/- as compensation together with 8% interest
p.a. and directed the Insurance Company to deposit the
same.
3. The brief facts of the case are as below:
That on 03-03-2010, at about 3.00 a.m., when the
petitioner was proceeding in Crane bearing registration
No.MH-43-817 as a helper, the driver of the said crane
drove the same in a rash and negligent manner near
Mallasandra gate, on Mysore road, Bangalore and dashed
against the lorry bearing registration No.KA-42-2032. Due
to which, the petitioner has sustained grievous injuries
and undergone amputation below knee. Consequently, the
petitioner had suffered pain and agony and sustained
financial loss and the respondents are liable to pay the
compensation and prayed to allow the petition.
4. In response to the notice issued by the Tribunal,
respondent Nos.1 and 2 have appeared through their
respective counsel, but respondent No.1 has not filed
written statement, whereas respondent No.2 has filed
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
written statement denying the petition averments and
averred that the offending vehicle was not insured with it.
Further it is averred that, its liability if any, is subject to
proof and validity of all the documents of the offending
vehicle and terms and conditions of the policy. Hence,
prayed to dismiss the petition.
5. On the basis of the above pleadings, the Tribunal
has framed necessary issues for its consideration and
after considering the oral evidence of PWs 1 to 3 and RW1
and documentary evidence of Exs.P1 to P15 and Ex.R1 on
behalf of both the parties, allowed the petition in part and
awarded a sum of Rs.9,52,036/- as compensation under
different heads as below:
1 Pain and agony Rs. 80,000/-
2 Medical expenses Rs. 1,56,236/-
3 Loss of income, rest, Rs. 12,000/-
nourishment and attendant
charges
4 Conveyance Rs. 5,000/-
5 Loss of amenities Rs. 3,88,800/
6 For artificial limb and below knee Rs. 3,00,000/-
prosthesis
7 Inconvenience Rs. 10,000/-
Total Rs.9,52,036/-
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
6. Aggrieved by the said judgment and award, both
the petitioner and the Insurance Company are before this
Court in appeals seeking appropriate reliefs.
7. The petitioner who is in appeal before this Court in
MFA No.10275/2012 contends that the Tribunal failed to
consider the Ex.P8 wherein, it shows that the appellant
had taken treatment from 3-3-2010 to 13-4-2010 and has
awarded only a sum of Rs.10,000/- towards attendant
charges, loss of income nourishment etc., which is very
low and contrary to the records. It is contended that the
petitioner was aged about 23 years and he has lost his
right leg and therefore, considering his avocation that he
was a helper in the crane, the functional disability
assessed by the Tribunal at 40% is incorrect. The
petitioner is aged 23 years and therefore, the
compensation awarded towards prosthesis is also improper
and incorrect. It is contended that the compensation
towards marital prospects is also not considered by the
Tribunal.
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
8. The Insurance company which is in appeal in
MFA No.8526/2012 contends that the Tribunal erred in
believing the evidence of the petitioner that he was an
employee working under the respondent No.1-owner of
the crane and deputed to duty in the crane as a helper.
Such a contention is not proved since the owner had not
entered the witness box. It is contended that there is no
evidence on record that petitioner was a helper in the
crane and as such, the fastening of the liability on the
insurance company is not sustainable under law. It is
contended that the petitioner was a gratuitous passenger
on the crane and the petition against the insurance
company should have been dismissed.
9. Respondent Nos.1 and 2 have appeared in
pursuance to the notice issued by this Court in MFA
No.10275/2012 and respondent Nos. 1 and 2 appeared
through their respective counsel in MFA No.8526/2018
and Tribunal records have been secured.
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
10. I have heard Sri Deepak J., learned counsel
appearing for the petitioner and Sri C.R. Ravishankar,
learned counsel appearing for the respondent Insurance
Company.
11. The learned counsel appearing for the petitioner
would submit that the Tribunal erred in awarding the
meager compensation and failed to assess the income and
the functional disability of the petitioner. It is contended
that the amputation of the right leg below the knee has
resulted in complete disability of the petitioner and
therefore, has argued on the lines as mentioned in the
petition.
12. Learned counsel for the petitioner has placed
reliance on the decision in the case of Rajkumar vs. Ajay
Kumar and another1 wherein, it was held that "it is not
the physical disability which is to be considered, but it is
the functional disability which should be considered by the
Tribunal".
2011 (1) SCC 343
MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
13. Further, he relied on the decision in the case of
Pappu Deo Yadav Vs. Naresh Kumar and others2
and submits that, the disability on account of
amputation of the right hand was assessed at 65% and
future prospects of the income was also considered by the
Apex Court.
14. Per contra, Sri. C.R. Ravishankar, learned
counsel appearing for the Insurance company contended
that the Tribunal has failed to note that the petitioner was
a gratuitous passenger on the crane. He contends that
there was no 'seat' for a passenger in the crane and
therefore, when there is no provision for a seat, the
petitioner could not have been a passenger. He contends
that the respondent No.1 has not filed any statement and
there is no material to show that the injured was an
employee under respondent No.1. He further contends
that the petitioner should have made a claim under the
Workmen's Compensation Act, if at all, if he is an
AIR 2020 SC 4424
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
employee. Hence, he sought for dismissal of the petition
as against the insurance company.
15. Learned counsel appearing for the respondent
No.1, owner, submitted that the Tribunal in para 15 and
17 has sufficiently considered the contentions of the
insurance company. It is submitted that a special
equipment like crane can only be run by two people and
hence, helper is essential. It is submitted that he had
issued ID card to the petitioner, but it was not marked
before the Tribunal.
16. So far as the contention of the insurance
company in MFA No.8526/2012 is concerned, the Tribunal
notices that all the investigation papers of the accident by
the police "disprove" that the petitioner was traveling in
the offending crane as a helper. The word "disprove" used
by the Tribunal in para 15 appears to be an error on the
face of the record. The statement of the petitioner before
the police as may be found along with Ex.P1 (which is not
separately marked by the Tribunal) show that the
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
petitioner was working in Simplex Company and he and
another Naveen Yadav were working on the said crane.
They were going towards Kumbalagodu as per the
directions of the Supervisor. The accident occurred when
the driver of the crane did not notice the road hump and
the crane dashed against the Tipper, the driver of which
lodged a complaint to the police.
17. The complaint categorically mentions that two
persons who were sitting in the crane had sustained
bleeding injuries and they were shifted to BGS hospital. It
is evident that petitioner was traveling in the crane and he
was an employee of the owner of the crane i.e. respondent
No.1. It is also evident that the respondent No.1 had
rented the crane to the said Symplex Company. Under
these circumstances, it cannot be said that petitioner was
not the helper in the crane. He was very much on the
crane at the time of the accident in his capacity as a
helper and acting on the advise of the Supervisor. The
Tribunal further notes that the driver of the crane has
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
been chargesheeted and the CWs 2 and 3 in the
chargesheet, one of whom is the petitioner herein, were
injured in the accident. It has also observed that the
chargesheet simply mentions that they were traveling, but
it do not clarify as to whether the petitioner is a 'cleaner'
or 'helper'. Counsel for the insurance company contended
that only cleaner is covered under the policy but not the
helper. The Tribunal noted that cleaner or helper is not
relevant, but the policy covers the risk of 'one plus one'
which includes the driver. I do not find any reason to
differ with the conclusions reached by the Tribunal. The
policy at Ex.R1 do not mention either the cleaner or the
helper. It says that the seating capacity is one plus one
and it includes the driver. Therefore, it is not in the mouth
of the insurance company to say that it was only the
cleaner who is covered but not the helper. Obviously, the
other injured has not filed any claim petition. Therefore,
no fault can be found with the observation made by the
Tribunal. When the policy clearly mentions that driver
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
plus one is covered, definitely, the petitioner is covered
under the policy.
18. The second contention of the learned counsel
appearing for the insurance company is, the petitioner
should have filed the petition under the provisions of the
Workmen's Compensation Act. It is relevant to note that
the petitioner is at liberty to either to approach under the
provisions of the MV Act or under the provisions of the
Workmen's Compensation Act. When the petitioner has
chosen to file this petition under the provisions M.V. Act,
no fault can be found regarding the same.
19. Therefore, the contentions raised by the
insurance company are not sustainable under law.
Consequently, the appeal MFA No.8526/2012 filed by the
insurance company is bereft of merits.
20. Sofar as MFA No.10275/2012 is concerned, the
Tribunal considers the petitioner to be the helper and
takes the notional income of the petitioner at Rs.150/- per
day and at Rs.4,500/- per month. As per the norms
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
adopted by the Karnataka State Legal Services Authority
for settlement of disputes in Lok Adalaths, the income of
the deceased at the relevant point of time should have
been taken at Rs.5,500/- per month. The petitioner has
suffered amputation of the right leg and as such, the
question is, whether future prospects is to be added to his
income?. Again, by relying on the decision in Pappu Deo
Yadav's case, wherein it is held that when the disability
caused is to a greater extent, the loss of future prospects
is also to be considered by the Courts. Hence, the
petitioner being labourer, aged 23 years, would be unfit to
do such similar manual works in future. Therefore, 40%
of the income has to be added to the income, i.e., 5,500/-
x 40% = 2,200/-. Hence, his effective income is held at
Rs.7,700/- per month.
21. The Tribunal relies on the evidence of PW2 who
states that there is 40% whole body disability. It is
evident that the Tribunal did not assess the functional
disability of the petitioner who suffered the amputation of
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
right leg. It is pertinent to note that the decision in
Rajkumar Vs. Ajay Kumar's case explains the reason as
to why the functional disability is different than the
physical disability assessed by the Doctor. By applying the
ratio laid down by the Apex Court in Rajkumar's case, it
is the functional disability which matters in order to assess
the future loss of income. It is worth to note that the
petitioner was a helper and therefore, the functional
disability would be more than the physical disability.
Considering the fact that the petitioner was aged about 23
years as per the petition and the medical records and that
the petitioner can adapt himself to any other avocation.
Such adaptation to a new avocation would be difficult as
the age advances. The decision in Pappu Deo Yadav's
case chronicles various other decisions and follows the
principles laid down in Rajkumar's case. It is evident
that translating a physical disability into a functional
disability with reference to the avocation of a person would
be an abstract calculation. The Apex Court in para 20 of
the judgment holds as below:
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
"The assessment of loss of future earnings is explained
below with reference to the following illustrations:
Illustration `A': The injured, a workman, was aged 30
years and earning Rs.3000/- per month at the time of
accident. As per Doctor's evidence, the permanent
disability of the limb as a consequence of the injury was
60% and the consequential permanent disability to the
person was quantified at 30%. The loss of earning
capacity is however assessed by the Tribunal as 15% on
the basis of evidence, because the claimant is continued
in employment, but in a lower grade. Calculation of
compensation will be as follows:
a) Annual income before the accident : Rs.36,000/-.
b) Loss of future earning per annum
(15% of the prior annual income) : Rs. 5,400/-.
c) Multiplier applicable with reference
to age : 17
d) Loss of future earnings:(5400 x 17): Rs.91,800/-"
22. Considering the above aspects, it would be
proper to hold that the petitioner had sustained functional
disability of 60%. Thus, the compensation awarded by the
Tribunal under the head of 'loss of amenities in life', is to
be termed as 'loss of future income' and is calculated as
Rs.7700/- x 12 x 18 x 60%= 9,97,920/-
23. The Tribunal has awarded a sum of Rs.80,000/-
under the head of pain and sufferings and Rs.12,000/-
towards rest, nourishment etc., which need no
enhancement.
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
24. The Tribunal has not separately awarded any
compensation under the head of 'loss of income during laid
up period'. In the considered opinion of this Court, it
would be proper to hold that the petitioner was unable to
resume his work for a period of eight months. Hence, the
petitioner is entitled for Rs.5,500 x 8 = 44,000/- under the
said head.
25. By following the principles laid down in
Rajkumar's case, a sum of Rs.10,000/- granted under
the head of inconvenience is treated as 'loss of amenities
in life' and the same is enhanced to Rs.20,000/-.
26. The Tribunal has awarded a sum of Rs.1,56,236/-
towards medical expenses based on the medical bills,
Rs.5,000/- towards conveyance and Rs.3,00,000/-
towards artificial limb and below knee prosthesis, needs no
enhancement. Thus, the petitioner is entitled for modified
compensation as below:
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
1 Pain and agony Rs. 80,000/-
2 Medical expenses Rs. 1,56,236/-
3 Rest, nourishment and attendant Rs. 12,000/-
charges
4 Conveyance Rs. 5,000/-
5. Loss of income during laid up period Rs. 44,000/-
5. Loss of future income Rs. 9,97,920/-
5 Loss of amenities Rs. 20,000/
6 For artificial limb and below knee Rs. 3,00,000/-
prosthesis
Total Rs.16,15,156/-
Less: awarded by Tribunal Rs. 9,52,036/-
Enhancement Rs. 6,63,120/-
27. Thus, the petitioner is entitled for a sum of
Rs.6,63,120/- in addition to what has been granted by
the Tribunal. Hence, the following:
ORDER
(i) MFA No.10275/2012 preferred by the
petitioner is allowed in part.
(ii) MFA No.8526/2012 preferred by the
Insurance Company is dismissed.
(iii) The impugned judgment and award
dated 03.07.2012 passed in MVC No.6603/2010
by the Tribunal is modified by enhancing the
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MFA No. 10275 of 2012
C/W MFA No. 8526 of 2012
compensation of Rs.6,63,120/- together with
interest at 6% p.a. from the date of petition till
the date of deposit.
(iv) Insurance company is directed to
deposit the compensation amount including the
enhanced compensation together with interest
within a period of 4 weeks from the date of
receipt of the copy of this order.
(v) All other conditions and apportionment
remains unaltered.
(vi) Amount in deposit, if any, in MFA
No.8526/2012 shall be transmitted to the
concerned Tribunal, forthwith.
Sd/-
JUDGE
tsn*
