Karnataka High Court
Shankar vs Amrut And Anr on 1 August, 2024
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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NC: 2024:KHC-K:5563
MFA No. 201335 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 1ST DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
MISCL. FIRST APPEAL NO. 201335 OF 2017 (MV-I)
BETWEEN:
SHANKAR S/O NAGAPPA MANGALGI,
AGE: 24 YEARS,
OCC: LABOUR (LOADER), NOW NIL,
R/O. H.NO.2-5-57, DHANGAR GALLI,
SEDAM ROAD,
NOW AT PRESENT: OM NAGAR,
GULBARGA - 585102.
...APPELLANT
(BY SRI SANJEEV PATIL, ADVOCATE)
AND:
1. AMRUT S/O NAGAPPA SARADGI,
Digitally signed
by SUMITRA AGE: MAJOR, OCC: BUSINESS &
SHERIGAR OWNER OF CRUISER VEHICLE BEARING
Location: HIGH REG.NO.KA32/A/8141,
COURT OF
KARNATAKA R/O. KODADUR VILLAGE
TQ: CHITTAPUR,
DIST: GULBARGA-585102.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD,
DIVISIONAL OFFICE BILGUNDI, MANSION,
STATION ROAD, OPP: MINI VIDHANA SOUDHA,
GULBARGA - 585101.
...RESPONDENTS
(BY SMT. PREETI PATIL MELKUNDI ADV. FOR R2
NOTICE TO R1 IS DISPENSED WITH)
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MFA No. 201335 of 2017
THIS MFA IS FILED U/S. 173(1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 27TH DAYS OF
FEBRUARY 2017 PASSED BY II ADDL. SENIOR CIVIL JUDGE
AND MACT AT KALABURAGI IN MVC NO.44/2015 MAY KINDLY
BE SET ASIDE AND THE TOP NOTED APPEAL MAY KINDLY BE
ALLOWED AND AWARD THE COMPENSATION AS PRAYED IN
THE CLAIM PETITION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE N.S.SANJAY GOWDA)
The claimant is in appeal seeking for enhancement of
compensation.
2. The occurrence of the accident is not in dispute
and the liability on the Insurer to satisfy the amount
payable is also not in dispute.
3. As a result of the accident which occurred on
13.12.2012 at about 12.45 a.m. to the claimant-Shankar,
aged 22 years, he sustained a fracture of the shaft of
humorous of the right side with internal fixation plates and
screws seen in situ.
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4. The claimant relied upon the disability
certificate and identity card issued by the Directorate for
the Empowerment of Differently Abled and Senior Citizens
to contend that he has suffered a disability of 75% to his
whole body. Ex.P.9 - the disability certificate which carries
the signature of a three Member body, comprising of the
Chairman of the Taluk Physically Handicapped Medical
Board, an Orthopedic Surgeon and a Physician has
certified that the claimant was over all permanent physical
impairment as per the specified guidelines was 75%. The
Tribunal has however proceeded to determine the
disability as 40% by stating that the disability of 75% as
stated was on the higher side.
5. In my view, this approach of the Tribunal
cannot be accepted. When a department for empowering a
differently abled persons as constituted by the
Government, which is a part of the Government has issued
a disability certificate, certified by a three Member body
comprising of an orthopedic surgeon, a physician and the
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Chairman of the Medical Board, it would be improper for
the Tribunal to substitute its own assessment. The very
purpose of issuing the certificate of disability to the holder
is to certify that he has been assessed by a competent
authority for his disability and if he is entitled for any
benefits, the same shall be determined on the basis of the
disability assessed. In other words, if a specialized body,
who is empowered by the Government to assess the
disability, has already certified the disability, it would not
be proper for the Tribunals to substitute the same by their
own opinion.
6. It is no doubt true that in a given case, if it is
contended by the opposing party that the certificate is
manipulated, then it would be open for the Court to
examine the matter and determine whether the certificate
issued was or was not in accordance with the guidelines
specified in the certificate, but if the certificate is not
challenged, the contents of the certificate will have to be
accepted. In my view therefore the assessment of
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disability of the claimant will have to be taken as 75% and
not 40%.
7. The monthly income of the claimant has been
determined at Rs.6,000/-. Since there was no income to
determine his actual income and there is no material has
been produced, in such cases, a sum of Rs.6,500/- will
have to be adopted. Since the claimant has suffered more
than 40% disability, 40% future prospects will have to be
added to the said sum. Consequently, the loss of future
income to the claimant would be entitled to
Rs.14,74,200/- (6500+40%x75%x12x18).
8. The evidence on record indicates that the
claimant has virtually lost the use of his right arm and
therefore, I am of the view that, it would be appropriate to
award a sum of Rs.1,00,000/- towards pain and suffering
and Rs.1,00,000/- towards loss of amenities. The
amount of Rs.1,05,664/- awarded towards medical
expenses is maintained.
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9. The claimant was in the hospital for a period of
47 days and the Tribunal has awarded a sum of
Rs.24,000/- towards attendant charges, food and
conveyance, in my view it would be appropriate to
enhance the said sum of Rs.40,000/-. The Tribunal has
awarded Rs.18,000/- towards loss of income during the
period of treatment. Since the claimant was hospitalized
for a period of 47 days, it would be appropriate to take the
laid up period as six months and consequently the
claimant would be entitled to a sum of Rs.39,000/-
towards loss of income during laid up period.
10. Learned counsel for the insurer submitted that
the interest to the future prospects ought not to be
granted and she placed a reliance on the judgment
rendered by the Division Bench of this Court in
M.F.A.No.1662/2023 disposed of on 02.07.2024. It is
however to be stated here that the three Judge Bench of
the Hon'ble Apex Court in the case of Jagdish vs. Mohan
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and others1, while awarding compensation incorporating
the future prospects has awarded interest at 9% per
annum. In the light of the said judgment of the Supreme
Court, the interest component on the compensation
payable cannot be denied.
11. It is also to be noticed here that the interest is
awarded on the premise that the claimant was entitled for
certain amounts as on the date of he presented the claim.
The adjudicatory process, by virtue of its very nature,
would consume time and once it is ultimately determined
that a particular amount was due to the claimant, interest
is ordered to be paid on the said amount, for the period
during when the proceedings were pending and till its
payment. It is in this context that the Hon'ble Apex Court
has granted interest even on the component of future
prospects. It would be therefore appropriate to apply the
said judgment.
(2018) 4 SCC 571
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12. Thus, the claimant would be entitled for
compensation of Rs.18,58,864/- as against
Rs.4,47,000/- awarded by the Tribunal, along with interest
at the rate of six per cent per annum from the date of
petition till its realization.
13. The Insurance Company is directed to deposit
the amount of compensation awarded along with interest
within a period of eight weeks from the date of receipt of a
certified copy of this judgment.
14. The deposit and release of the enhanced
compensation amount shall be made as per the ratio
adopted by the Tribunal.
15. The appeal is accordingly allowed in part.
Sd/-
(N.S.SANJAY GOWDA)
JUDGE
sn
CT: VD
