Karnataka High Court
Eshwarappa vs Eshwarappa And Ors on 23 November, 2023
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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NC: 2023:KHC-K:8785
MFA No. 200210 of 2022
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
MISCL. FIRST APPEAL NO.200210 OF 2022 (MV-I)
BETWEEN:
ESHWARAPPA S/O RUDRAPPA,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O NIDIGOL VILLAGE, TQ. SINDHANUR,
DIST. RAICHUR-584 128.
...APPELLANT
(BY SRI. BASAVARAJ R. MATH, ADVOCATE)
AND:
1. ESHWARAPPA
Digitally signed S/O MAREGOUDA BELWAT,
by LUCYGRACE AGE: MAJOR, OCC: AGRICULTURE,
Location: HIGH R/O NIDIGOL VILLAGE, TQ. SINDHANUR,
COURT OF DIST. RAICHUR-584 128.
KARNATAKA
2. G. SHANKREPPA S/O RUDRAPPA,
AGE: MAJOR,
R/O VENKATESHWARA NAGAR,
NEAR JOLADARASHI BUILDING,
SINDHANUR, TQ. SINDHANUR,
DIST. RAICHUR-584 128.
3. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO. LTD.,
SINGARAO COMPLEX,
BEHIND INDIAN OVERSEAS BANK,
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MFA No. 200210 of 2022
BRANCH SINDHANUR, TQ. SINDHANUR,
DIST. RAICHUR-584 128.
...RESPONDENTS
(SMT. PREETI PATIL MELKUNDI, ADVOCATE FOR R3;
V/O DATED 24.02.2022 NOTICE TO R1 & R2 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLES ACT, PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT AND AWARD DATED 17.08.2020 PASSED BY THE
SENIOR CIVIL JUDGE AND JMFC, SINDHANUR IN MVC
NO.126/2016 AND PLEASED TO ALLOW THE CLAIM PETITION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the injured claimant aggrieved by
the order dated 17.08.2020 passed in MVC No.126/2016
on the file of Senior Civil Judge and JMFC at Sindhanur (for
short 'Tribunal'), by which, the Tribunal while partly
allowing the claim petition has awarded compensation of
Rs.5,94,000/- with interest at 9% p.a. from the date of
petition till realisation.
2. Brief facts of the case are that, on 30.04.2015,
claimant along with his wife was proceeding to Gudihal-
Mattur village on his motorcycle. When he stopped the
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said vehicle near Gudagaladinni bridge to attend the
natures' call and while proceeding towards his bike,
respondent No.1, who was riding the motorcycle bearing
Reg. No.KA-36/EA-3160 came in rash and negligent
manner and dashed against the claimant, due to which he
sustained grievous injuries. He was admitted in hospital as
inpatient between 30.04.2015 and 08.05.2015.
Thereupon, claim petition was filed under Section 166 of
the Motor Vehicles Act, seeking compensation on the
ground that prior to the accident, claimant was doing
agricultural work and earning Rs.5,00,000/- per annum
and that, on account of accident and the injuries
sustained, he is unable to carry out his regular work.
3. In response, respondent Nos.1 and 2, the
owner and rider of the motorcycle did not file statement of
objections. Respondent No.3 - Insurance Company filed
statement of objections denying the petition averments.
It is contended that claimant had negligently parked his
motorcycle without showing any indicator and on the
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middle of the road, as such, the claimant had contributed
for the cause of accident. That, respondent No.1 was
riding the motorcycle without having valid driving licence,
as such, the Insurance Company is not liable to answer
the claim of the petitioner. That, the accident had occurred
due to sole negligence on the part of the clamant in
crossing the road and there was no negligence on the part
of the rider of the offending vehicle. Hence, sought for
dismissal of the claim petition.
4. Based on the pleadings, the Tribunal framed
issues and recorded the evidence. The claimant examined
himself as PW.1 and one Dr.Satish Kandula, who is treated
doctor was examined as PW.2 and exhibited 190
documents as Exs.P1 to P190. On behalf of the Insurance
Company, one witness was examined as RW.1 and got
marked the Insurance Policy as Ex.R1.
5. The Tribunal, on appreciation of the pleadings
and evidence, arrived at the conclusion that the accident
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in question had occurred on account of rash and negligent
riding of the motorcycle bearing Reg. No.KA-36/U-6080 by
its rider - respondent No.1 and assessed the disability of
the claimant at 15%, considered the income at Rs.6,000/-
per month and accordingly awarded total compensation of
Rs.5,94,000/-.
6. Sri Basavaraj R. Math, learned counsel for the
appellant, reiterating the grounds urged in the
memorandum of appeal submits that the Tribunal grossly
erred in not appreciating the nature of injuries sustained
by the appellant, who was eking out his livelihood by
carrying out agricultural activities. Therefore, submits that
the proportionality of injuries sustained by the claimant
vis-à-vis his nature of work ought to have been taken into
consideration. Non-application of mind by the Tribunal in
this regard has caused grave in justice is a submission. He
further submits that the appellant was earning
Rs.5,00,000/- per annum from agricultural activities.
However, the Tribunal has assessed the notional income at
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Rs.6,000/- per month, which is grossly inadequate. He
submits that the grant of compensation on other heads is
also on lower side and requires to be enhanced.
7. Per contra, Smt. Preeti Patil Melkundi, learned
counsel appearing for respondent No.3 - Insurance
Company submits that the treated doctor has assessed the
disability of the appellant/claimant at 60% and considering
the nature of injuries sustained by the appellant, the
Tribunal has assessed the same at 15%. Thus, she
submits that the assessment of disability by the Tribunal is
just and proper warranting no interference. Hence, seeks
for dismissal of the appeal.
8. Heard the learned counsel for the parties and
perused the records.
9. The accident in question resulting in injuries to
the appellant is not in dispute. As per the Wound
Certificate at Ex.P5, the appellant has suffered the
following injuries:
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"1. COMMINUTED BI-CONDYLAR # (R)
TIBIA.
2. CRUSH INJURY (R) MIDDLE FINGER TIP.
3. TYPE III C BI-MALLEOLAR # (R) ANKE
WITH CRUSHING & LOSS OF PART OF
TALOR BONES WITH PARTS OF TARSAL
BONE WITH DORSAL PEDIS ARTERY
INJURY."
10. PW.2 - Doctor, who treated the appellant has
issued the disability certificate as per Ex.P190 and
assessed the disability at 60%. It is opined by the PW.2
that appellant has difficulty in brisk walking and sitting
cross legged and he also has difficulty in range of
movement of right knee and right ankle. Admittedly, the
claimant was carrying on work of agriculture, which
requires constant body movement and physical exertion.
Considering the nature of injuries sustained by the
claimant and his age, the assessment of disability at 15%
by the Tribunal cannot be countenanced.
11. The Hon'ble Apex Court in the case of Pappu
Deo Yadav vs. Naresh Kumar and Others reported in
(2022) 13 SCC 790 at paragraphs 9, 11 and 23 has laid
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down the parameter for assessment of pecuniary and non-
pecuniary damages as under:
"9. In Jagdish the victim, a carpenter,
suffered permanent disablement, and his claim for
compensation including for loss of future prospects
was considered by a three-Judge Bench (which
included, incidentally, the Judges who had decided
Pranay Sethi). This Court held that: (Jagdish cases,
SCC pp. 576-77, paras 13-15)
"13. In the judgment of the Constitution
Bench in Pranay Sethi, this Court has held
that the benefit of future prospects should not
be confined only to those who have a
permanent job and would extend to self-
employed individuals. In the case of a self-
employed person, an addition of 40% of the
established income should be made where the
age of the victim at the time of the accident
was below 40 years. Hence, in the present
case, the appellant would be entitled to an
enhancement of Rs 2400 towards loss of
future prospects.
14. In making the computation in the
present case, the court must be mindful of
the fact that the appellant has suffered a
serious disability in which he has suffered a
loss of the use of both his hands. For a person
engaged in manual activities, it requires no
stretch of imagination to understand that a
loss of hands is a complete deprivation of the
ability to earn. Nothing-at least in the facts of
this case-can restore lost hands. But the
measure of compensation must reflect a
genuine attempt of the law to restore the
dignity of the being. Our yardsticks of
compensation should not be so abysmal as to
lead one to question whether our law values
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human life. If it does, as it must, it must
provide a realistic recompense for the pain of
loss and the trauma of suffering. Awards of
compensation are not law's doles. In a
discourse of rights, they constitute
entitlements under law. Our conversations
about law must shift from a paternalistic
subordination of the individual to an assertion
of enforceable rights as intrinsic to human
dignity.
15. The Tribunal has noted that the
appellant is unable to even eat or to attend to
a visit to the toilet without the assistance of
an attendant. In this background, it would be
a denial of justice to compute the disability at
90%. The disability is indeed total. Having
regard to the age of the appellant, the
Tribunal applied a multiplier of 18. In the
circumstances, the compensation payable to
the appellant on account of the loss of
income, including future prospects, would be
Rs 18,14,400. In addition to this amount, the
appellant should be granted an amount of Rs
2 lakhs on account of pain, suffering and loss
of amenities. The amount awarded by the
Tribunal towards medical expenses
(Rs 98,908); for extra nourishment (Rs
25,000) and for attendant's expenses (Rs 1
lakh) is maintained. The Tribunal has declined
to award any amount towards future
treatment. The appellant should be allowed
an amount of Rs 3 lakhs towards future
medical expenses. The appellant is thus
awarded a total sum of Rs 25,38,308 by way
of compensation. The appellant would be
entitled to interest @ 9% p.a. on the
compensation from the date of the filing of
the claim petition. The liability to pay
compensation has been fastened by the
Tribunal and by the High Court on the insurer,
owner and driver jointly and severally which
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is affirmed. The amount shall be deposited
before the Tribunal within a period of 6 weeks
from today and shall be paid over to the
appellant upon proper identification."
xxxxx
11. Yet later and more recently in an accident
case, which tragically left in its wake a young girl in
a life-long state of paraplegia, this Court, in Kajal v.
Jagdish Chand [2020 4 SCC 413],reiterated that in
addition to loss of earnings, compensation for
future prospects too could be factored in, and
observed that: (SCC pp. 421-24, paras 14-17
& 20)
"14. In Concord of India Insurance Co.
Ltd. v. Nirmala Devi [(1979) 4 SCC 365 :
1979 SCC (Cri) 996, this Court held : (SCC p.
366, para 2)
'2. ... the determination of the quantum
must be liberal, not niggardly since the law
values life and limb in a free country in
generous scales.'
15. In R.D. Hattangadi v. Pest Control
(India) (P) Ltd., (1995) 1 SCC 551 : 1995
SCC (Cri) 250], dealing with the different
heads of compensation in injury cases this
Court held thus : (SCC p. 556, para 9)
'9. Broadly speaking while fixing the
amount of compensation payable to a victim
of an accident, the damages have to be
assessed separately as pecuniary damages
and special damages. Pecuniary damages are
those which the victim has actually incurred
and which are capable of being calculated in
terms of money; whereas non-pecuniary
damages are those which are incapable of
being assessed by arithmetical calculations.
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In order to appreciate two concepts pecuniary
damages may include expenses incurred by
the claimant: (i) medical attendance; (ii) loss
of earning of profit up to the date of trial; (iii)
other material loss. So far as non-pecuniary
damages are concerned, they may include :
(i) damages for mental and physical shock,
pain and suffering, already suffered or likely
to be suffered in the future; (ii) damages to
compensate for the loss of amenities of life
which may include a variety of matters i.e. on
account of injury the claimant may not be
able to walk, run or sit; (iii) damages for loss
of expectation of life i.e. on account of injury
the normal longevity of the person concerned
is shortened; (iv) inconvenience,
hardship, discomfort, disappointment,
frustration and mental stress in life.'
16. In Raj Kumar v. Ajay Kumar (2011) 1
SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1
SCC (Cri) 1161], this Court laid down the
heads under which compensation is to be
awarded for personal injuries : (SCC p. 348,
para 6)
'6. The heads under which compensation
is awarded in personal injury cases are the
following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment,
hospitalisation, medicines, transportation,
nourishing food, and miscellaneous
expenditure.
(ii) Loss of earnings (and other gains)
which the injured would have made had he
not been injured, comprising:
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(a) Loss of earning during the period of
treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and
trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of
prospects of marriage).
(vi) Loss of expectation of life (shortening
of normal longevity).
In routine personal injury cases, compensation
will be awarded only under heads (i), (ii)(a) and
(iv). It is only in serious cases of injury, where
there is specific medical evidence corroborating
the evidence of the claimant, that compensation
will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future
earnings on account of permanent disability,
future medical expenses, loss of amenities
(and/or loss of prospects of marriage) and loss
of expectation of life.'
17. In K. Suresh v. New India Assurance
Co. Ltd. (2012) 12 SCC 274 : (2013) 2 SCC
(Civ) 279 : (2013) 4 SCC (Cri) 638, this Court
held as follows : (SCC p. 276, para 2)
'2. ... There cannot be actual
compensation for anguish of the heart or for
mental tribulations. The quintessentiality lies in
the pragmatic computation of the loss sustained
which has to be in the realm of realistic
approximation. Therefore, Section 168 of the
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Motor Vehicles Act, 1988 (for brevity "the Act")
stipulates that there should be grant of "just
compensation". Thus, it becomes a challenge for
a court of law to determine "just compensation"
which is neither a bonanza nor a windfall, and
simultaneously, should not be a pittance.'
Loss of earnings
20. Both the courts below have held that
since the girl was a young child of 12 years only
notional income of Rs 15,000 p.a. can be taken
into consideration. We do not think this is a
proper way of assessing the future loss of
income. This young girl after studying could
have worked and would have earned much more
than Rs 15,000 p.a. Each case has to be decided
on its own evidence but taking notional income
to be Rs 15,000 p.a. is not at all justified. The
appellant has placed before us material to show
that the minimum wages payable to a skilled
workman is Rs 4846 per month. In our opinion,
this would be the minimum amount which she
would have earned on becoming a major.
Adding 40% for the future prospects, it works to
be Rs 6784.40 per month i.e. 81,412.80 p.a.
Applying the multiplier of 18, it works out to Rs
14,65,430.40, which is rounded off to Rs
14,66,000."
xxxxx
23. In parting, it needs to be underlined that
Courts should be mindful that a serious injury not
only permanently imposes physical limitations and
disabilities but too often inflicts deep mental and
emotional scars upon the victim. The attendant
trauma of the victim's having to live in a world
entirely different from the one she or he is born
into, as an invalid, and with degrees of dependence
on others, robbed of complete personal choice or
autonomy, should forever be in the judge's mind,
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whenever tasked to adjudge compensation claims.
Severe limitations inflicted due to such injuries
undermine the dignity (which is now recognized as
an intrinsic component of the right to life under
Article 21) of the individual, thus depriving the
person of the essence of the right to a wholesome
life which she or he had lived, hitherto. From the
world of the able bodied, the victim is thrust into
the world of the disabled, itself most discomfiting
and unsettling. If courts nit-pick and award
niggardly amounts oblivious of these
circumstances, there is resultant affront to the
injured victim."
12. Viewed the facts of the present case, in the
light of the aforesaid principles laid down by the Apex
Court, this Court is of the considered view that assessment
of permanent disability at 30% would be appropriate,
instead of 15% accessed by the Tribunal.
13. Though the appellant claimed to have been
earning Rs.5,00,000/- per annum from his agricultural
activities, no material evidence is produced in that regard.
This Court in the absence of any documentary evidence
regarding income, takes into consideration the guidelines
issued by the Karnataka State Legal Services Authority,
wherein the notional income of the victims of the road
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traffic accident for the year 2015 is determined at
Rs.8,000/- per month. The same is taken in this case as
well. Considering the age of the appellant as 40 years,
Tribunal has rightly applied the multiplier of '15'. Thus,
calculated as above, the compensation payable under the
head of loss of future earning would be Rs.4,32,000/-
(Rs.8,000 x 12 x 30% x 15).
14. The Tribunal has awarded Rs.3,92,000/-
towards medical and other incidental charges. The same is
retained as it is.
15. The Tribunal has awarded a sum of Rs.20,000/-
towards pain and suffering. The same is enhanced to
Rs.50,000/- by adding Rs.30,000/-.
16. The Tribunal has awarded a sum of Rs.20,000/-
towards loss of amenities. The same is enhanced to
Rs.60,000/- by adding Rs.40,000/-.
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17. The Tribunal has not awarded any
compensation towards loss of income during laid up
period. The appellant is stated to have been treated as in
inpatient between 30.04.2015 and 08.05.2015.
Considering the nature of injuries, claimant must have
been advised rest for about three months. Therefore,
claimant would be entitled for a sum of Rs.24,000/-
(Rs.8,000 x 3) towards the same.
18. The Tribunal has not awarded any
compensation towards attendant, nourishment and
conveyance. Hence, a sum of Rs.20,000/- is awarded
under the said head.
19. Thus, the appellant is held entitled for a total
compensation of Rs.9,78,000/- instead of Rs.5,94,000/-
awarded by the Tribunal as under:
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Sl. Heads By By
No. Tribunal this Court
1 Loss of future Rs.1,62,000/- Rs.4,32,000/-
earning
2 Medical and other Rs.3,92,000/- Rs.3,92,000/-
incidental charges
3 Pain and suffering Rs.20,000/- Rs.50,000/-
4 Loss of income - Rs.24,000/-
during laid up period
5 Loss of amenities Rs.20,000/- Rs.60,000/-
6 Attendant, - Rs.20,000/-
nourishment and
conveyance
Total Rs.5,94,000/- Rs.9,78,000/-
20. Further, the Tribunal has awarded interest at
the rate of 9% per annum, which is not tenable and it is
reduced to 6% per annum on the enhanced compensation
from the date of petition till realization.
21. For the foregoing reasons, following:
ORDER
a) The appeal is partly allowed.
b) The appellant/claimant is held entitled for a
total compensation of Rs.9,78,000/- instead of
Rs.5,94,000/- awarded by the Tribunal with
interest at 6% per annum from the date of
petition till realization.
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c) Respondent No.3 - Insurance Company shall
pay the aforesaid compensation amount within
a period of six weeks from the date of receipt of
certified copy of this judgment.
d) The award of the Tribunal is modified
accordingly.
Sd/-
JUDGE
LG
