Karnataka High Court
New India Assurance Co.Ltd vs Irappa @ Veerappa S/O. Hanumanthappa ... on 10 April, 2024
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MFA No. 104260 of 2017
C/W MFA No. 102168 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE M.I.ARUN
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
M.F.A. NO.104260 OF 2017 (MV-I)
C/W M.F.A. NO.102168 OF 2018 (MV-I)
IN MFA NO.104260 OF 2017:
BETWEEN:
IRAPPA @ VEERAPPA S/O. HANUMANTAPPA MADLI,
AGE: 36 YEARS, OCC: SKILLED MASON AND SUPERVISOR
UNDER CLASS-I CONTRACTOR, NOW NIL,
R/O: VANAHALLI, TQ:SHIGGAON,
NOW AT AKKI-ALUR-581102, TQ:DIST:HAVERI.
...APPELLANT
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
VISHAL
NINGAPPA 1. SRI. RAJIV S/O. MADHUSUDHAN SARWATE,
PATTIHAL
Location: HIGH COURT
OF KARNATAKA
AGE: 56 YEARS, OCC: BUSINESS,
R/O: JAIN PLASTIC PARK, NH NO.6,
DHARWAD BENCH
Date: 2024.04.25
14:58:16 +0530
BAMBORI, JALAGAON-425001.
2. THE DIVISIONAL MANAGER,
THE NEW INDIA ASSURANCE CO. LTD.,
2ND FLOOR, SRINATH COMPLEX,
NEW COTTON MARKET,
HUBBALLI-580029.
...RESPONDENTS
(BY SRI. SABEEL AHMED, ADVOCATE FOR R1;
SRI. RAVINDRA R. MANE, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 01.04.2017 PASSED
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MFA No. 104260 of 2017
C/W MFA No. 102168 of 2018
IN MVC NO.53/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
AMACT, HANGAL, AT: HANGAL, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.102168 OF 2018:
BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD.,
BY ITS DIVISIONAL MANAGER,
2ND FLOOR, SRINATH COMPLEX,
NEW COTTON MARKET, HUBBALLI,
BY ITS DULY CONSTITUTED ATTORNEY.
...APPELLANT
(BY SRI. R.R. MANE, ADVOCATE)
AND:
1. IRAPPA @ VEERAPPA S/O. HANUMANTAPPA MADLY,
AGE: 39 YEARS, OCC: MASON AND SUPERVISOR
UNDER CLASS-I CONTRACTOR,
R/O: VANAHALLI, TQ:SHIGGAON,
NOW AT AKKI-ALUR, TQ:DIST:HAVERI.
2. SRI. RAJIV S/O. MADHUSUDHAN SARWATE,
AGE: 57 YEARS, OCC: BUSINESS,
R/O: JAIN PLASTIC PARK, NH NO.6,
BAMBORI, JALAGAON-425001.
...RESPONDENTS
(BY SRI. HARISH S. MAIGUR, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH V/O/DATED 01.04.2019)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988,
AGAINST THE JUDGMENT AND AWARD DATED 01.04.2017 PASSED
IN MVC NO.53/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL,
HANGAL, AWARDING COMPENSATION OF RS.19,96,969/- WITH
INTEREST AT 7% P.A. FROM THE DATE OF PETITION TILL ITS
REALISATION.
THESE MFAs., COMING ON FOR ORDERS, THIS DAY,
UMESH M. ADIGA, J., DELIVERED THE FOLLOWING:
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MFA No. 104260 of 2017
C/W MFA No. 102168 of 2018
JUDGMENT
Both these appeals arise out of judgment and award
passed by the Senior Civil Judge and Addl. M.A.C.T., Hangal
dated 01.04.2017 in M.V.C. No.53/2015. Claimant has filed
appeal in M.F.A. No.104260/2017 claiming for enhancement of
compensation and insurer has filed M.F.A. No.102168/2018
contending to reduce an amount of Rs.1,42,300/- awarded
towards medical expenses. Both the appeals arise out of
common judgment and award passed by the Tribunal.
Therefore, they are taken up together for disposal.
2. For the sake of convenience, we refer to the
parties as per their rank before the Tribunal.
3. Brief facts of the case of petitioner are that on
22.12.2014 at about 08:30 p.m., the petitioner alongwith
deceased Mahadevappa Puttappa Manakatti were going on a
motorcycle bearing registration No.KA-27/EB-2138 from
Shiggaon to Vanahalli Village. Deceased was riding the said
motorcycle. They met with an accident due to rash and
negligent driving of Tata Sumo bearing registration No.MH-
19/8919 due to rash and negligent driving of the said vehicle
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by its driver. As a result of which, petitioner had sustained
grievous injuries. He was admitted to the hospital and due to
fracture and crush injuries sustained to his right leg, it was
amputated below knee. He had also sustained severe nerve
injuries of right hand, because of which his right hand become
totally disabled and he is unable to use his right hand for any
work. He had taken treatment at Balaji Hospital, Hubballi and
spent more than Rs.15,00,000/- towards medical and incidental
expenses.
4. It is further case of petitioner that as on the date of
accident, he was aged about 37 years. He was mason and
earning Rs.700/- to Rs.800/- per day and maintaining his
family. Due to amputation of right leg below knee as well as
total disability of right hand due to nerve injuries, he became
totally disabled and suffering from 100% permanent disability.
A criminal case was registered against driver of Tata Sumo and
he has been charge sheeted. With these reasons, the petitioner
has prayed to award compensation of Rs.50,00,000/-.
5. Respondent No.1 - owner of the vehicle had
appeared before the Tribunal and filed objections denying
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contents of the claim petition. He further contended that
respondent No.2 is liable to pay compensation, if any, awarded
by the Tribunal and prayed to dismiss the claim petition against
respondent No.1.
6. Respondent No.2 - insurer has also denied all the
contentions of the claim petitioner and further contended that
the petitioner is not entitled for compensation as prayed in the
petition. The accident had taken place due to contributory
negligence of the rider of the motorcycle as well as driver of the
offended vehicle and claim petition suffers from non-joinder of
necessary parties. With these reasons, respondent No.2 has
prayed for dismissal of the claim petition.
7. The Tribunal has framed necessary issues for its
determination.
8. Claimant on his behalf examined PWs.1 and 2 and
got marked Exs.P1 to P17 and closed his evidence. Respondent
has not led oral and documentary evidence.
9. The Trial Court after hearing both the parties and
appreciating the evidence on record held that the accident had
taken place due to rash and negligent driving of offending Tata
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Sumo by its driver. The Tribunal has assessed age of the
claimant as 35 years, his income per month as Rs.5,000/-,
applied the multiplier as 16, and percentage of disability to the
whole body as 90% and awarded following amount of
compensation by the impugned judgment:
1 Pain and suffering Rs.1,00,000/-
2 Medical expenses Rs.7,57,969/-
3 Diet, Nourishment, conveyance and Rs.40,000/-
attendant charges
4 Loss of income during laid up period Rs.15,000/-
5 Loss of future income on account of Rs.8,64,000/-
permanent physical disability
6 Loss of amenities and enjoyment of life Rs.70,000/-
7 Future medical expenses Rs.50,000/-
8 Loss of expectation of life Rs.1,00,000/-
Total Rs.19,96,969/-
10. We have heard the arguments of learned counsel
for both the parties.
11. The learned counsel for appellant - claimant would
submit that the Tribunal has assessed the disability of claimant
as 90% which is erroneous. He further submits that according
to evidence of PW2, who is a treated Doctor, petitioner has
been suffering from permanent disability of 85% to the right
lower limb and 90% to the right upper limb. His right leg below
the knee was amputated and due to severe nerve injury, he is
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unable to use his right hand for any work. Therefore, it is as
good as 100% permanent disability, which needs to be
considered by this Court. He further submits that the claimant
was earning Rs.700 to Rs.800/- per day as wages. However,
the Tribunal has taken the income as Rs.5,000/- per month
which is on lower side. He submits that even if the notional
income is considered as per schedule of Karnataka State Legal
Services Authority, then, same would be Rs.7,500/- per month
which could be applied to the facts of the present case.
12. Learned counsel for the appellant would further
submit that since the petitioner had sustained 100% permanent
disability, future prospects has to be added, since he was aged
about 35 years, 40% of his income has to be added towards
future prospects.
13. The learned counsel for the appellant - claimant
has further submitted that the amount of compensation
awarded on other heads are also very meager. The Tribunal
has not considered that the petitioner has been bed ridden. He
has to be attended by a person throughout the day and that
was not considered. He also submitted that proper amount of
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compensation has not been awarded by the Tribunal towards
artificial limb. Considering all these facts, the learned counsel
for petitioner submits that the amount of compensation needs
to be enhanced.
14. The learned counsel for the petitioner has fairly
submitted that there is some calculation mistake in the medical
bill. Some of the medical bill, both advance bill as well as
receipts were added while claiming the amount before the
Tribunal as contended by the insurer. Therefore, there is no
objection to deduct Rs.1,42,300/- from the compensation
awarded under said head. With these reasons, prayed to allow
the appeal.
15. The learned counsel for insurer has submitted that
the Tribunal has awarded just and reasonable amount of
compensation on all the heads and there is no need of any
enhancement. The contention of the claimant that he is
suffering from permanent disability to an extent of 100% is not
acceptable. He has also submitted that the Tribunal has added
amount of bill as well as receipt of the hospital, bill and
awarded compensation. Therefore, the same amount was
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added twice which needs to be deducted and as fairly
submitted by learned counsel for the petitioner, the said
amount of Rs.1,42,300/- be deducted from the amount of
compensation awarded by the Tribunal. With these reasons,
prayed to dispose of the appeals.
16. The Tribunal after appreciating the evidence
available on record rightly held that accident had taken place
due to rash and negligent driving of Tata Sumo by its driver.
This fact is not seriously disputed by respondent - insurer and
the finding on the said point by the Tribunal is not challenged in
the present appeal. Therefore, there is no need to reconsider
the same.
17. The claimant has proved before the Tribunal by oral
and documentary evidence as well as by examining the treated
Doctor that he had sustained following injuries.
"i. amputation of right leg below knee.
ii. severe injury to brachial plexus nerve of right
hand due to which his right hand became
dysfunction."
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18. PW2 in his evidence has stated due to the above
said injury, petitioner has been suffering from permanent
disability to an extent of 85% to the right lower limb and 90%
to right upper limb. The Tribunal by detailed assessment of the
same and appreciating evidence of PWs.1 and 2 in this regard
held that claimant has been suffering from permanent disability
to an extent of 90%. It does not call for any interference by
this Court. The claimant is not bed ridden. He can move by
artificial limb or by holding clutches. Therefore, he can do little
work. Under these circumstances, it cannot be considered that
he is suffering from permanent disability to an extent of 100%.
19. The Tribunal has taken income of claimant as
Rs.5,000/- per month. Admittedly, there is no document on
record to prove his income. Therefore, notional income of the
claimant has to be determined. According to the schedule of
notional income prepared by the Karnataka State Legal Service
Authority, notional income of claimant, who met with an
accident during year 2014 can be considered as Rs.7,500/- per
month, which could be applicable to the facts of the present
case. The claimant has been suffering from permanent
disability to an extent of 90%. Therefore, as held in the case of
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National Insurance Company Limited vs. Pranay
Sethi and Others1, 40% of his income has to be added
towards future prospects. It is not in dispute that multiplier
applicable to the facts of case is 16 since age of claimant was
35 years. On the basis of the same, compensation under the
head loss of future earning capacity due to permanent disability
is assessed/recalculated.
20. The amount of compensation awarded under some
of the head under which the compensation is awarded by the
Tribunal is on lower side which needs to be reassessed. Looking
to the evidence available on record, the amount of
compensation awarded towards pain and suffering, incidental
expenses, towards treatment charges, attendant charges
during treatment, loss of amenities and future unhappiness.
21. The Tribunal has awarded loss of income during laid
up period only for three months. It appears nearly about two
months he was admitted as in-patient in the hospital in
intervals. Therefore, at least for a period of one year, he might
not be in a position to do any work. Considering the same, loss
of income during laid up period has to be awarded for a period
AIR 2017 SC 5157
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of 12 months. Right hand of the claimant has became
dysfunction because of nerve injury as per the evidence of
PWs.1 and 2 and his right leg below knee was amputated.
22. The contention of learned counsel for the petitioner
that petitioner is needed an attendant during treatment and
also subsequent to the treatment for a longer period.
Therefore, under that head also the amount of compensation
needs to be enhanced. As per submission of both petitioner as
well as insurer, an amount of Rs.1,42,300/- needs to be
deducted in the amount of compensation awarded by the
Tribunal under head medical expenses. Accordingly, the
compensation is re-assessed and re-calculated and following
amount of compensation is awarded:
Pain and suffering Rs.1,50,000/-
Medical expenses Rs.6,15,669/-
Attendant and treatment and incidental Rs.1,00,000/-
charges
Loss of income during laid up period Rs.90,000/-
(Rs.7,500 X 12)
Loss of future earning capacity due to Rs.18,14,400/-
permanent disability
(Rs.7,500 + 40 % X 12 X 16 X 90%)
Loss of amenities Rs.2,00,000/-
Future attendant charges Rs.2,00,000/-
Total Rs.31,70,069/-
Rounded off to Rs.31,70,000/-
Less: Awarded by Tribunal Rs.19,96,969/-
Enhanced Rs.11,73,031/-
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23. Claimants are entitled for enhancement of
Rs.11,73,031/- and he is also entitled for interest on the
enhanced amount of compensation at the rate of 6% per
annum from the date of petition till its realization.
24. For the above said discussions, the question is
answered in the affirmative and pass the following:
ORDER
(i) M.F.A. No.100032/2019 and M.F.A.
No.100630/2018 are allowed in part.
(ii) The impugned judgment and award dated
01.04.2017 passed by the Senior Civil Judge
and Addl. M.A.C.T., Hangal, in M.V.C.
No.53/2015 is modified.
(a) The claimant is entitled for total
compensation of Rs.31,70,000/- as
against Rs.19,96,969/- awarded by the
Tribunal. The claimant is entitled for
enhanced compensation of
Rs.11,73,031/- with interest at the rate
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of 6% per annum from the date of
petition till its realization.
(b) Respondent Nos.1 and 2 - owner and
insurer are jointly and severally liable to
pay the compensation amount.
(c) Respondent No.2 being the insurer shall
deposit the compensation amount with
interest within a period of six weeks from
the date of receipt of a copy of this
judgment.
(d) The amount deposited by the appellant in
M.F.A. No.102168/2018 shall be
transmitted to the Tribunal for
disbursement to the claimant.
(e) Remaining part of operative portion of
impugned award is not disturbed.
Sd/-
JUDGE
Sd/-
JUDGE
RSH, CT: UMD
