Karnataka High Court
United India Insurance Co.Ltd vs Shri. Vishal Balasaheb Bodhe on 22 February, 2024
Author: S G Pandit
Bench: S G Pandit
-1- MFA No.101576/2021
C.W MFA No.101236/2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND 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.101576 OF 2021
C/W
MFA NO.101236 OF 2021 (MV-I)
IN MFA NO.101576/2021
BETWEEN:
VISHAL BALASAHEB BODHE,
AGE: 33 YEARS,
OCC: SR. ENGINEER (NOW NIL),
R/O. H.NO.4487, SWAMI NAGAR,
MACCHE, TQ & DIST: BELAGAVI-590014.
...APPELLANT
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND
1. ASHRAFKHAN AYUBKHAN PATHAN,
Digitally signed by AGE: MAJOR, OCC: BUSINESS,
CHANDRASHEKAR
LAXMAN
KATTIMANI
R/O. H.NO.488, RAGHUNATH PETH,
Date: 2024.02.22
18:03:49 +0530 ANGOL, TQ & DIST: BELAGAVI-590005.
2. THE DIVISIONAL MANAGER,
UNITED INDIA INSURANCE CO. LTD,
MARUTI GALLI, BELAGAVI-590001.
...RESPONDENTS
(BY SRI. RAVINDRA R. MANE, ADV. FOR RESPONDENT NO.2,
NOTICE TO RESPONDENT NO.1 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, PRAYING TO THE JUDGMENT AND AWARD
DATED 29/03/2021 PASSED IN MVC NO.1092/2019 BY THE VI ADDL.
DISTRICT AND SESSIONS JUDGE AND ADDL. MACT, BELAGAVI, IN
AWARDING THE COMPENSATION OF RS. 50,39,180/- AND INTEREST
-2- MFA No.101576/2021
C.W MFA No.101236/2021
AT RATE OF 6% FROM THE DATE OF PETITION AND MAY BE KINDLY
MODIFIED BY ENHANCING TO RS. 74,60,820/- WITH 12%
INTEREST, IN THE INTEREST OF JUSTICE AND EQUITY.
IN MFA NO.101236/2021
BETWEEN:
UNITED INDIA INSURANCE CO. LTD,
BY ITS DIVISIONAL MANAGER,
MARUTI GALLI, BELAGAVI.
...APPELLANT
(BY SRI. RAVINDRA R. MANE, ADVOCATE)
AND
1. SHRI. VISHAL BALASAHEB BODHE,
AGE: 33 YEARS,
OCC: SERVING AS SR. ENGINEER,
R/O. H.NO.4487, SWAMI NAGAR,
MACCHE, TALUK & DIST: BELAGAVI-590014.
2. ASHRAFKHAN AYUBKHAN PATHAN,
AGE: MAJOR, OCC: BUSINESS,
R/O. H.NO.488, RAGHUNATH PETH,
ANGOL, TALUK & DIST: BELAGAVI-590006.
...RESPONDENTS
(BY SRI. VITTHAL S. TELI, ADV. FOR RESPONDENT NO.1,
NOTICE TO RESPONDENT NO.2 DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173 (1) OF
MOTOR VEHICLES ACT, 1988, PRAYING TO CALL FOR THE RECORDS,
ALLOW THIS APPEAL BY REDUCING THE AMOUNT OF
COMPENSATION GRANTED TO THE CLAIMANT SUITABLY AND SET
ASIDE THE JUDGMENT AND AWARD DTD. 29/3/2021 PASSED BY
THE COURT OF THE VI ADDL. DISTRICT AND SESSIONS JUDGE AND
ADDL. MACT, BELAGAVI, IN MVC NO.1092/2019 AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
06.02.2024 COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, K V ARAVIND, J., DELIVERED THE FOLLOWING:
-3- MFA No.101576/2021
C.W MFA No.101236/2021
JUDGMENT
Though these appeals are listed for admission, it is taken
up final disposal with the consent of the learned counsel for
both the parties.
2. These appeals by the insurer and the claimants
aggrieved by the judgment and award in MVC No.1092/2019
dated 29.03.2021 on the file of the VI Additional District and
Sessions Judge and Additional MACT, Belagavi.
3. MFA No.101576/2021 by the claimants seeking
enhancement of compensation. MFA No.101236/2021 by the
insurer disputing quantum of compensation.
4. The claimant/petitioner filed claim petition under
Section 166 of the Motor Vehicles Act, 1988 for injuries
sustained by him in the accident that occurred on 23.03.2019
involving motorcycle bearing No.MH-09/BE-1727 and Mobile
Crane vehicle bearing No.KA-22/P-5935. It is pleaded that the
claimant was rider of the motorcycle and accident occurred due
to rash and negligent driving of Mobile crane.
5. On issuance of notice, respondents appeared
through their respective counsels. The respondent No.1 denied
the petition averments, age, income and occupation of the
petitioner. Further alleged that accident occurred solely due to
the negligence of the claimant. Further contends that in the
event respondent No.1 is held to be negligent, the liability to
be passed on to the respondent No.2/insurer.
6. The respondent No.2 denying the petition
averments and the manner of accident, contended that driver
of the Mobile Crane was not holding valid and effective driving
license as on the date of accident. Due to violation of policy
conditions insurer is not liable to pay the compensation.
7. The Tribunal conducted common trial for two claim
petitions arising out of same accident. The petitioner examined
himself as PW1. The pillion rider was examined as PW5,
employer of claimant/petitioner was examined as PW2,
representative from OTTOBOCK Health Care India Private
Limited from where artificial limb was purchased was examined
as PW3. Doctor was examined as PW4. Exs.P1 to P48 were
marked on behalf of the claimants. Respondent has not
examined any witness, however, marked Ex.R1 to R4.
8. The Tribunal on analysis of the evidence on record
held that accident occurred due to rash and negligent driving of
the Mobile Crane. Awarded compensation of Rs.50,39,180/-
under various heads as under:
Sl.No. Heads of Compensation Amount
1. Pain and Sufferings 50,000.00
2. Medical expenses 5,49,739.00
3. Future loss of earning 36,86,400.00
Towards purchase of artificial
4. 4,81,037
limb
Loss earning during
5. 1,92,000.00
treatment period
Conveyance, attendant
6. 50,000.00
charges and nourishment
7. Loss of amenities 30,000.00
Total 50,39,180.00
9. The Tribunal while awarding the compensation
considered the age of the claimant/insured as 31 years applied
multiplier 16, assessed income at Rs.32,000/- per month.
Considered the disability at 60% against the disability assessed
by PW4-Doctor at 85%.
10. Heard learned counsel Shri. Vitthal S. Teli for the
appellant and Shri. Ravindra R. Mane, learned counsel for
respondent No.2 and perused the appeal papers along with
original records.
11. Learned counsel for the claimant submits that the
claimant was working as Senior Engineer in Maintenance
Department in Ashok Iron Works Private Ltd. Due to the
accident petitioner has sustained amputation of leg. Due to the
amputation, petitioner has not joined back to the work. Though
Doctor assessed disability at 85%, the Tribunal committed an
error in assessing disability at 60%. It is submitted that due to
amputation, the claimant cannot perform same work and
functional disability to be considered at 100%. Further submits
that the compensation awarded under various heads is on the
lower side. Thus prays to enhance the compensation.
12. Learned counsel for the insurer submits that the
petitioner after sustaining injury has continued to work in
Ashok Iron Works Private Ltd. The claimant is not terminated
from service as contended. Though the claimant has suffered
amputation, sophisticated artificial limb has been fixed and cost
of the artificial limb has been awarded, due to artificial limb the
claimant does not suffer from any disability. It is further
submitted that there is no loss of earning due to continuation
of the employment and no disability due to fixation of artificial
limb, the claimant is not entitled for any compensation towards
future loss of earning. It is further contended that though
claimant pleads that he has been terminated from service, no
evidence has been placed on record.
13. Having heard learned counsel for the parties, on
perusal of the appeal papers and records, the points that arise
for consideration are:
i. Whether the Tribunal is justified in
assessing the disability at 60%?
ii. Whether the compensation awarded by the
Tribunal needs interference?
14. Our answer to the above points would be in the
affirmative for the following reasons.
15. The injuries sustained due to accident on
23.03.2019 involving motorcycle bearing No.MH-09/BE-1727
and Mobile Crane bearing No.KA-22/P-5935 are not in dispute
in this appeal. The claimant working as Senior Engineer in
Maintenance Department in Ashok Iron Works Private Ltd. and
drawing salary of Rs.32,000/- per month prior to accident is
not in dispute. Further learned counsel for the insurer submits
that the petitioner after the accident sustained amputation of
leg and fixed artificial limb. Due to fixation of artificial limb the
claimant has no disability and he continue to work with Ashok
Iron Works Private Ltd. The insurer has cross examined PW2
AGM, HR in Ashok Iron Works private Ltd. PW2 has stated that
claimant was working as Senior Engineer in Maintenance
Department till the date of accident, after the accident he has
not attended office. The insurer has not elicited any contrary
evidence though PW2 was subjected to cross examination. PW2
has denied the suggestion that petitioner can do work by
sitting. PW2 has further denied suggestion that petitioner is
still working in the company and receiving salary. The insurer
though contended that the claimant has continued to work in
Ashok Iron Works Private Ltd, no evidence is placed on record
to prove that claimant continues to work in Ashok Iron Works
Private Ltd.
16. On the other hand PW2 in the course of cross
examination by the insurer has categorically stated that the
claimant is not working and he is not being paid salary. The
contention of the insurer that the claimant has continued to
work in Ashok Iron Works Private Ltd. is only by inference that
he has not been terminated from service by the company. In
the absence of any concrete evidence on record it is difficult to
accept that petitioner the continue to work in the company in
the absence of proof of termination and when the
representative of the company has stated on oath that the
claimant is not working in the company and he is not paid any
salary, the contention of the insurer cannot be accepted and is
rejected.
17. From the above analysis it is clear that due to the
accident and amputation of leg, the claimant is entitled for
compensation towards future loss of earning.
18. The contention of the insurer that due to fixation of
artificial limb no disability caused to the claimant is not
sustainable. Due to the amputation of leg, the claimant being
an Engineer by Profession his performance and movement from
one place to another place would be restricted. The amputation
has definite impact on the employment of the claimant. PW4
Doctor has assessed the permanent physical disability of the
claimant at 85%. It is further stated that the claimant cannot
lift and do laborious work. It is further stated that the claimant
would suffer due to amputation on the day to day activities
stated as under:
i. Standing not possible
ii. Walking long not possible.
iii. Squatting not possible.
iv. Standing on affected limb not possible.
v. Walking on uneven surface not possible.
vi. Lifting weight not possible.
vii. Doing laborious work not possible.
19. The Ex.P18 to P32 would clearly show that the
claimant is technically educated and having experience in
technical field. The injury i.e. amputation of leg would require
him to do other jobs due to the permanent disability. The
amputation of leg would impact on the employment of the
claimant.
20. Ex.P8 the wound certificate reflects that the
claimant has suffered the following injuries:
"CLW(=)- right side supra public area right hip
movement painful. X-ray-pelvic with both hips
AP: Public diastasis with right inferior public
rami fracture with right sacroiliac joint
dislocation with adjacent iliac bone fracture.
CT scan of abdomen and pelvis(plain and
contrast): Haematoma in the soft tissues of
the abdominal wall in the right inguinal region.
Multiple bone fractures present."
21. Ex.P10 the Discharge summary reflects as under:
"1. Fracture dislocation of right SI joint with
liac bone fracture posteriorly with public
diastasis with superior and inferior pubic rami
fracture right side.
2. External iliac artery blockage with
gangrenous changes wit cold right lower
limb."
22. Ex.P15 Disability certificate would disclose
amputation of right leg above knee. II schedule to Workmen
Compensation Act considers percentage of loss of earning
capacity due to amputation below the hip at 80%. Division
Bench of this Court in MFA No.23417/2013 dated 29.10.2018
assessed the disability at 90% for amputation suffered by the
claimant working as a cleaner in lorry. The Hon'ble Apex Court
in the case of Dinesh Singh Vs Bajaj Allianz General
Insurance Company Limited and Another1 has held that if
permanent disability suffered compells the claimant in not
continuing the earlier profession and to take up the other job,
merely because claimant was working it cannot be held that
there is no disability. It is held that due to disability if injured
cannot perform same duties/activities disability exists and
would continue.
23. The contention of the claimants that due to the
amputation, the claimant has suffered 100% permanent
disability is not sustainable though the amputation of leg would
prevent the claimant from carrying on any activities as earlier,
the same would not come in the way of performing any other
work.
24. Considering the above evidence on record and also
the fact that the insurer has failed to prove that the claimant is
continued in the same job or gainfully employed in the similar
job suitable to his qualification, we consider it appropriate to
(2014) 9 SCC 241
assess the permanent disability at 80%. In view of the
reassessment of the disability the loss of future income is
reassessed as under:
(32,000X12X80%X16=49,15,200/-)
25. The claimant has suffered amputation with multiple
other injuries. Considering the treatment, nature of injuries
and the petitioner was inpatient for 47 days, we are of the view
that the sum of Rs.50,000/- awarded under the head pain and
suffering is on the lower side. We assess the same at
Rs.1,00,000/-. The claimant due to the accident has suffered
amputation of leg and has undergone various other treatments
and surgeries. Due to the said injuries and amputation of leg,
sum of Rs.30,000/- awarded under loss of amenities is on the
lower side. We assess sum of Rs.1,00,000/- towards loss of
amenities. Thus the total compensation is as under:
Sl.N
Heads of Compensation Amount in Rs.
o.
1. Pain and Sufferings 1,00,000.00
2. Medical expenses 5,49,739.00
3. Future loss of earning 49,15,200.00
4. Towards purchase of artificial limb 4,81,037.00
5. Loss earning during treatment period 1,92,000.00
Conveyance, attendant charges and
6. 50,000.00
nourishment
7. Loss of amenities 1,00,000.00
Total 63,87,976.00
Amount awarded by the tribunal 50,39,180.00
Enhancement 13,48,796.00
26. Thus claimants would be entitled to total
compensation of Rs.63,87,976/- as against Rs.50,39,180/-
awarded by the Tribunal.
In the result, we proceed to pass the following:
ORDER
a) The appeal in MFA No.101576/2021 by
claimant is allowed in part.
b) The appeal in MFA No.101236/2021 by
Insurer is rejected.
c) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimants are entitled to total
compensation of Rs.63,87,976/- as
against Rs.50,39,180/- awarded by the
Tribunal.
d) The enhanced compensation amount of
Rs.13,48,796/- 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.
f) Deposit and disbursement of the enhanced
compensation amount shall be made as
per the award of the Tribunal.
g) Registry to transmit the records to the
Tribunal forthwith.
h) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
RKM
