Karnataka High Court
The Manager vs Smt Vinaya W/O Uttam Sawant on 21 February, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 103755 of 2023
C/W MFA No. 104414 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 103755 OF 2023 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 104414 OF 2023
IN MFA NO.103755/2023
BETWEEN:
THE MANAGER,
RELIANCE GENERAL INSURANCE COMPANY LTD,
DEVARAJ URS COLONY, NEHRU NAGAR,
BELAGAV-590009,
REPRESENTED BY ITS
AUTHORIZED SIGNATORY.
...APPELLANT
Digitally signed by (BY SRI. G. N. RAICHUR, ADVOCATE)
CHANDRASHEKAR
LAXMAN
KATTIMANI
Date: 2024.02.24
10:54:12 +0530
AND:
1. SMT. VINAYA W/O. UTTAM SAWANT,
AGE: 37 YEARS, OCC: TAILORING AND
HOUSE WORK, NOW NIL
R/O. C/O. YASHWANT VASU GAVAS,
5TH CROSS, MAHADWAR ROAD,
BELAGAVI 590011.
2. SHRI. RAMESH ISHWAR MUGALI,
AGE: 33 YEARS, OCC: BUSINESS,
R/O. NO.644, MUTNAL,
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MFA No. 103755 of 2023
C/W MFA No. 104414 of 2023
NANDGAON POST-591308,
TALUK GOKAK,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI. K. ANANDKUMAR, ADVOCATE FOR R1,
SRI. ARAVIND D. KULKARNI AND
MISS. SHIVALEELA ARAHUNSI, ADVOCATES FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO CALL FOR
THE RECORDS AND HEAR THE PARTIES AND MODIFY THE
JUDGMENT AND AWARD DATED 24-04-2023 BY THE COURT OF
THE X ADDITIONAL DISTRICT JUDGE AND ADDITIONAL MACT
BELAGAVI AT: BELAGAVI IN MVC 689/2021 BY REDUCING THE
COMPENSATION AWARDED BY ACCEPTING THE GROUNDS
MADE OUT IN THE GROUNDS OF APPEAL BY ALLOWING THIS
APPEAL WITH COST IN THE ENDS OF JUSTICE AND EQUITY.
IN MFA NO.104414/2023
BETWEEN
SMT. VINAYA,
W/O. UTTAM SAWANT,
AGED ABOUT 37 YEARS,
OCC: TAILORING
AND HOUSE WORK, NOW NILL,
R/O. C/O YASHWANT VASU GAVAS,
5TH CROSS, MAHADWAR ROAD,
BELAGAVI,
DIST: BELAGAVI-590001.
...APPELLANT
(BY SRI. K. ANANDKUMAR, ADVOCATE)
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MFA No. 103755 of 2023
C/W MFA No. 104414 of 2023
AND
1. SHRI. RAMESH,
S/O. ISHWAR MUGALI,
AGE: 33 YEARS,
OCC: BUSINESS,
R/O. NO.644, MUTNAL,
NANDGAON POST,
TQ: GOKAK,
DIST: BELAGAVI-591307.
2. THE MANAGER,
RELIANCE GENERAL INSURANCE
CO. LTD, DEVARAJ URS COLONY,
NEHRU NAGAR,
DIST: BELAGAVI-590002.
...RESPONDENTS
(BY SRI. ARAVIND D. KULKARNI AND
MISS. SHIVALEELA ARAHUNSI, ADVOCATES FOR R1;
SRI. G.N.RAICHUR, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
ALLOW THE ABOVE MISC. FIRST APPEAL AND CONSEQUENTLY
BE PLEASED TO MODIFY THE JUDGMENT AND AWARD DATED
24-04-2023 PASSED BY THE COURT OF THE X ADDL DISTRICT
JUDGE AND ADDL MACT BELAGAVI IN M.V.C NO.689/2021 AND
ENHANCE THE COMPENSATION AS PRAYED IN THE CLAIM
PETITION IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
K V ARAVIND, J., DELIVERED THE FOLLOWING:
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MFA No. 103755 of 2023
C/W MFA No. 104414 of 2023
JUDGMENT
These appeals by the insurer and claimant against the
judgment and award dated 24.04.2023 in MVC No.689/2021
on the file of X Addl.District and Sessions Judge and Addl.
MACT, Belagavi (for short, 'Tribunal').
2. The parties are referred to as per their rank
before the Tribunal for convenience.
3. MFA No.103755/2023 is by the insurer disputing
the percentage of disability and quantum of compensation
awarded towards loss of earning capacity and various other
heads.
4. MFA No.104414/2023 by the claimant for
enhancement disputing the percentage of disability,
compensation awarded under various heads.
5. The claimant filed a claim petition under Section
166 of the Motor Vehicles Act seeking compensation for
injuries suffered by her in the road traffic accident taken
place on 26.01.2021 involving motorcycle bearing
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registration No.MH-09/DF-9254 and car bearing registration
No.KA-49/M-5911. It is contended that the claimant has
suffered functional disability at 100% due to the injuries
suffered, she was doing tailoring work and aged 38 years.
6. On issuance of notice, respondents appeared
through their respective counsels and filed statement of
objections. Respondent No.1 denied the date, time and
factum of the accident, age, avocation and income of the
petitioner. It is further stated that the driver of the vehicle
was holding valid driving licence and vehicle is duly insured
with respondent No.2/Insurance Company. Further
contended that if the claimant is entitled for compensation,
prayed to saddle the liability on the insurer.
7. Respondent No.2 denied the date, time, age,
occupation and income of the petitioner. Contended that
accident has taken place due to negligence of the rider of the
motorcycle.
8. The claimant got examined herself as PW1,
Doctor was examined as PW2 and got marked the
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documents as Exs.P1 to P26. Respondent No.1 has not led
any evidence. Respondent No.2 though not examined any
witness marked Ex.R1 with consent.
9. The Tribunal on appreciation of the evidence on
record held that the accident occurred due to rash and
negligent driving of the offending vehicle and fastened the
liability on the 2nd respondent. The Tribunal considered the
income at Rs.14,250/- per month, assessed disability at
70%. The Tribunal awarded total compensation of
Rs.34,29,551/- under various heads as under:
Sl.No. Particulars Amount
1 Pain and suffering Rs.1,00,000/-
2 Loss of earning capacity Rs.17,95,500/-
3 Loss of income during laid up Rs.1,42,500/-
period
4 Attendant charges, food & Rs.40,000/-
nourishment, conveyance etc.
5 Loss of amenities in life Rs.1,00,000/-
6 Medical expenses Rs.11,51,551/-
7 For artificial limb Rs.1,00,000/-
Total Rs.34,29,551/-
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10. Heard Sri G.N.Raichur, learned counsel for the
insurer, Sri K.Anandkumar, learned counsel for claimant and
Miss Shivaleela Arahunsi, learned counsel for respondent
No.2. Perused the appeal papers along with original records.
11. Learned counsel for the claimant submits that due
to accidental injuries, the claimant has suffered right leg
amputation above knee with 10 inches stump and scalp CLW
left occipital region. It is further submitted that due to the
amputation, she has suffered 100% functional disability. The
doctor and the Tribunal committed an error in assessing the
disability at 75% and 70% respectively. It is further
submitted that due to the amputation of leg, the claimant is
not in a position to continue her tailoring work and has
suffered future loss of earning. The Tribunal considering the
nature of injuries and loss of future income committed an
error in not awarding any compensation towards future
prospects. It is submitted that the compensation awarded
under various heads is on the lower side. Thus, prays to
enhance the compensation.
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12. Per contra, learned counsel for the insurer
submits that the disability assessed on the basis of the
medical certificate and evidence of the doctor, no
interference is warranted. It is submitted that the claimant
after amputation has got fixed artificial limb and
compensation is awarded towards artificial limb. Due to
fixing of artificial limb, the claimant does not suffer any
disability. The amputation of leg in no way obstruct the
claimant in continuing her tailoring work. It is further
submitted that in view of the improved or automatic tailoring
machines being available, there is no impediment to continue
to claim with her tailoring work. Hence, the Tribunal
committed an error in awarding compensation towards loss
of earning capacity. In alternative, it is further submitted
that even if the claimant due to injuries and amputation of
leg is not in a position to continue her tailoring work, the
same would not prevent her from carrying on other work.
Hence, the compensation awarded under the head loss of
earning capacity is on the higher side. It is further submitted
that the loss of income assessed by the Tribunal towards laid
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up period for ten months is on the higher side and prays to
reduce the same.
13. Having heard the learned counsel for the parties
and on perusal of the appeal papers and records, the points
that arise for our consideration are as under:
i. Whether the Tribunal is justified in assessing
the permanent disability at 70%?
ii. Whether the compensation awarded by the
Tribunal needs reconsideration?
14. Our answer to the above points 'in the negative'
and 'in the affirmative' respectively for the following reasons.
15. The injuries suffered by the claimant due to road
traffic accident on 26.01.2021 involving motorcycle bearing
registration No.MH-09/DF-9254 and car bearing registration
No.KA-49/M-5911 is not in dispute in this appeal. The
claimant was carrying on tailoring work prior to the accident.
As per Ex.P5/wound certificate and Ex.P7/discharge
summary, the petitioner has suffered amputation to right leg
above knee with 10 inches stump and scalp CLW left occipital
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region. Exs.P9, P18 and P20 are the photos of the petitioner
after the accident. From the above documents, it is clear that
the petitioner has suffered amputation to her right leg above
the knee. PW2 has assessed the disability at 75%. The
Tribunal on the basis of the above referred exhibits assessed
the whole body permanent disability at 70%. It is the specific
contention of the claimant that the claimant is not in a
position to continue her tailoring work. If the injury sustained
has disabled the claimant to continue the work which was
carried out prior to the accident, the functional disability
would be at 100%. On examination of Exs.P5, P7, P9, P18
and P20 and also the evidence of PW2, we are of the view
that the functional disability assessed by the Tribunal at 70%
is on the lower side. Schedule-I to the Workmen's
Compensation Act, 1923 has fixed the percentage of loss of
earning capacity for various injuries. As per Schedule-I of
Act, the percentage of loss of earning capacity for
amputation of leg below the hip is at 80%. In the present
case on examination of the evidence on record as referred to
above, we are of the view that the loss of earning capacity is
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to be assessed at 80%. Accordingly, we assess the functional
disability at 80%.
16. The claimant has produced Ex.P22-tailoring bill
book to evidence that the claimant was doing tailoring work.
No contrary evidence is placed on record by the insurer to
disbelieve the evidence. Hence, we accept that the claimant
was doing tailoring work prior to accident. The claimant has
contended that she was doing tailoring work and household
work and earning Rs.15,000/- per month. In the absence of
any evidence to prove that the claimant was earning
Rs.15,000/- per month, the Tribunal assessed the income at
Rs.14,250/-. It is settled position of law that when no cogent
evidence is available on record to assess the income of the
claimant, the income has to be assessed on the basis of the
avocation of the claimant and the surrounding
circumstances. The Karnataka State Legal Services Authority
(KSLSA) has suggested the income to be considered on the
basis of year of accident in the absence of any evidence
available on record. As per the chart prepared by the KSLSA
for the accident year 2021, the income per month is
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Rs.14,250/-. The Tribunal also assessed notionally at
Rs.14,250/-. Hence, we find no reason to disturb the same.
17. In view of Ex.P22 and aforesaid discussion, we
hold that the claimant was doing tailoring job. She has
suffered amputation to right leg above knee. The amputation
of right let would deprive the claimant to carry on her
tailoring work. In other words, the claimant may not
continue in doing tailoring work. Though the contention of
the learned counsel for the claimant that the functional
disability is to be considered at 100% is attractive, the fact
that the amputation of right leg would in no way deprive the
claimant from any other work/activities. Compensation
towards future prospects is to be awarded depending on the
disability caused to perform the same work, which the
claimant was doing prior to accident. As we have held that
the claimant was doing tailoring work and the amputation to
right leg would not permit her to continue with her tailoring
work, we are of the view that the claimant in the facts and
circumstances of the present case would be entitled for
compensation towards future prospects. It is not in dispute
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that the claimant is aged 39 years and applicable multiplier
is '15'. As per the judgment of the Hon'ble Supreme Court in
the case of National Insurance Company Limited V/s
Pranay Sethi and others1 and claimant aged below 40
years and self-employed, future prospects is to be awarded
at 40% of the assessed income. Accordingly, we hold that
the claimant is entitled for 40% of the assessed income
towards future prospects.
18. Thus the compensation towards loss of earning
capacity is as under:
Rs.14,250(Income) + 40%(future prospects) x 12
(months) x 15 (multiplier) x 80% disability =
Rs.28,72,800/-.
19. The claimant has suffered amputation to right leg
above knee and has undergone surgeries. The claimant was
inpatient for 68 days. The Tribunal considered the laid up
period of ten months. In our view considering the nature of
injuries suffered laid up period of ten months is on the higher
side. In our view it is just and proper to consider six months
(2017) 6 SCC 680
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as laid up period and the claimant would be entitled for
compensation towards laid up period at Rs.14,250 x 6
(months).
20. In view of the injuries suffered, surgery/fractures
and amputation to right leg, the claimant was under
treatment as inpatient for 68 days. The Tribunal has awarded
Rs.40,000/- towards attendant charges, food and
nourishment and conveyance etc. We are of the view that
Rs.40,000/- is on the lower side. We deem it appropriate to
award a sum of Rs.1,00,000/- towards attendant charges,
food and nourishment and conveyance etc. The
compensation is recomputed as under:
Sl.No. Particulars Amount
1 Pain and suffering Rs.1,00,000/-
2 Loss of earning capacity Rs.28,72,800/-
3 Loss of income during laid up Rs.85,500/-
period
4 Attendant charges, food & Rs.1,00,000/-
nourishment, conveyance etc.
5 Loss of amenities in life Rs.1,00,000/-
6 Medical expenses Rs.11,51,551/-
7 For artificial limb Rs.1,00,000/-
Total Rs.45,09,851/-
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21. Thus the total compensation awarded is
Rs.45,09,851/- against Rs.34,29,551/- awarded by the
Tribunal. The enhanced compensation is Rs.10,80,300/-.
22. For the above reasons, we pass the following:
ORDER
a) MFA No.103755/2023 filed by the Insurer is
dismissed.
b) MFA No.104414/2023 filed by the claimant is
allowed in part.
c) The impugned judgment and award of the
Tribunal is modified to the extent that the
claimant is entitled to total compensation
Rs.45,09,851/- as against Rs.34,29,551/-
awarded by the Tribunal.
d) The entire compensation amount will bear
interest at the rate of 6% per annum from the
date of claim petition till date of realization.
e) The respondent-Insurance Company shall
deposit the enhanced compensation amount
with accrued interest before the Tribunal
within six weeks from the date of receipt of
certified copy of this judgment.
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f) The additional compensation shall be released
in favour of the claimant.
g) Draw modified award accordingly.
h) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
CLK
