Karnataka High Court
Iffco Tokio General Insurance Company ... vs Sri.Haridas S/O Vilas Sawant on 28 February, 2024
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MFA No. 104899 of 2019
C/W MFA No. 100917 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 104899 OF 2019 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 100917 OF 2020 (MV-I)
IN MFA NO.104899/2019
BETWEEN:
IFFCO-TOKIO GENERAL INSURANCE COMPANY LTD,
BY ITS BRANCH SHIKSHAK BHAVAN,
OPP: HOTEL SANMAN, COLLEGE ROAD,
BELAGAVI-590001,
NOW REPRESENTED BY TIS
AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. SUBHASH J. BADDI, ADVOCATE)
AND:
Digitally
signed by
ROHAN
ROHAN
HADIMANI 1. SRI. HARIDAS S/O. VILAS SAWANT,
HADIMANI T
T Date:
2024.03.05
AGE: 23 YEARS, OCC: AGRICULTURE,
11:10:46
+0530 R/O. VAIJGAON, JOIDA TALUK,
KARWAR DISTRICT-58135.
2. MANJUNATH S/O. GANGAPPA JAKKANNAVAR,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. PYATI ONI, A/P: MUGAD,
DHARWAD TALUK-580007.
...RESPONDENTS
(BY SRI. B. M PATIL, ADV. FOR RESPONDENT NO.1
NOTICE TO RESPONDENT NO.2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, 1988, PRAYING TO CALL THE RECORDS,
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MFA No. 104899 of 2019
C/W MFA No. 100917 of 2020
HEAR THE PARTIES, AND ALLOW THE APPEAL AS PRAYED FOR BY
SETTING ASIDE THE JUDGMENT AND AWARD DATED 19-08-2019
PASSED BY THE IV ADDITIONAL DISTRICT JUDGE AND M.A.C.T-V,
AT: BELAGAVI IN MVC NO.958/2018, WITH COST IN THE INTEREST
OF JUSTICE AND EQUITY.
IN MFA NO.100917/2020
BETWEEN
SRI. HARIDAS S/O. VILAS SAWANT,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O. VAIJGAON, TQ: JOIDA,
DT: KARAWAR.
...APPELLANT
(BY SRI. B. M. PATIL, ADVOCATE)
AND
1. SRI. MANJUNATH S/O. GANGAPPA JAKKANNAVAR,
AGE: 46 YEARS, OCC: BUSINESS,
R/O. PYATI ONI, A/P: MUGAD,
TQ: DHARAWD-580007.
2. THE IFFCO-TOKIO GENERAL
INSURANCE CO. LTD,
BY ITS BRANCH SHIKSHAK BHAVAN,
OPP: HOTEL SANMAN,
COLLEGE ROAD, BELAGAVI-590002.
...RESPONDENTS
(BY SRI. SUBHASH J. BADDI, ADV. FOR RESPONDENT NO.2,
NOTICE TO RESPONDENT NO.1 SERVED)
THIS MISCELLENEOUS FIRST APPEAL IS FILED U/S.173(1) OF
MOTOR VEHICLES ACT, PRAYING TO ENHANCED THE
COMPENSATION BY MODIFYING THE JUDGMENT AND AWARD IN
M.V.C. NO.958/2018 DATED 19-08-2019 PASSED BY THE COURT OF
IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AND M.A.C.T-V,
AT: BELAGAVI IN THE INTEREST OF JUSTICE AND EQUITY.
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MFA No. 104899 of 2019
C/W MFA No. 100917 of 2020
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.104899/2019 is filed by the Insurance Company
challenging the quantum of compensation awarded by the
Tribunal whereas, MFA No.100917/2020 is filed by the
injured/claimant seeking for enhancement of the compensation.
Both these appeals are filed being aggrieved by the judgment
and award dated 19.08.2019 passed in MVC No.958/2018 on
the file of IV Addl. District Judge and MACT-V at Belagavi.
2. Brief facts leading to filing of these appeals are, the
appellant/claimant on 30.05.2018 was proceeding on his motor
cycle bearing registration No.KA.30/U-9993 from Ramnagar to
Kapoli on Ramnagar-Alnavar Road. When he reached near
Mundwad village, tipper lorry bearing registration No.KL-
64/4850 came from opposite direction driven by its driver in a
rash and negligent manner and dashed to the motor cycle of
the appellant/claimant. Due to that impact, the
appellant/claimant fell down and sustained grievous injuries. He
was shifted to Vijaya Ortho and Trauma Center at Belagavi,
where he took treatment as inpatient. It is averred that due to
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accidental injuries, the appellant/claimant sustained permanent
physical disability and lost earning capacity. At the time of
accident, the appellant/claimant was aged about 22 years and
was doing agricultural activity and used to sell commercial crop
in the market and earning Rs.20,000/- per month.
3. The respondent No.2/Insurance Company had
objected the claim petition by denying cause of accident, nature
of injuries, treatment, medical expenses and disability suffered
by the appellant/claimant. Further, they deny the age, income
and occupation. It is also averred that the accident has
occurred due to rash and negligent riding of the motor cycle by
the appellant/claimant and not due to negligence on the part of
driver of offending lorry.
4. The Tribunal after considering the rival contentions
and evidence on record, has awarded total compensation of
Rs.13,52,278/- to the appellant/claimant along with interest at
the rate of 6% per annum from the date of petition till
realization. Being aggrieved by the award of compensation, the
insurance company as well as the appellant/claimant has filed
these appeals.
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5. During the trial before the Tribunal, the
appellant/claimant examined himself as PW-1 and produced 17
documents as EX-P1 to P17. The respondent/Insurance
Company has not adduced any evidence but, got marked EXs-
R1 with consent.
6. Learned counsel Sri. Subhash J. Baddi, appearing
for the appellant/Insurance Company submits that the Tribunal
has committed grave error in recording a finding that the
appellant/claimant has suffered 30% whole body disability and
50% functional disability. It is submitted that PW-1 in his cross-
examination has clearly admitted that he does not know PW2.
Hence, the evidence of PW2 cannot be looked into as well as
the Disability Certificate at EX-P13. Hence, he seeks to discard
the evidence of PW2. It is also submitted that the tribunal has
committed grave error in awarding Rs.1,00,000/- under the
head of loss of amenities to the appellant/claimant and, it
ought to have awarded Rs.25,000/-. Taking into account, the
nature of injuries suffered by him, he seeks to reduce the said
amount to Rs.25,000/-. It is submitted that the Tribunal has
awarded Rs.34,000/- as compensation for the laid-up period,
taking into account 4 months as laid-up period, however, the
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appellant/claimant was inpatient in the hospital only for a
period of 8 days. Hence, the laid up period should not be more
than one month, therefore he seeks to allow the appeal filed by
the Insurance Company by appropriately modifying the
impugned judgment and award.
7. Learned counsel Sri. B M. Patil, appearing for the
appellant/claimant submits that the Tribunal has committed
grave error in assessing the income of the injured-
appellant/claimant at Rs.8,500/- per month as the appellant
has specifically pleaded that he was carrying out the
agricultural activity and selling the commercial crops in the
market. Hence, his income has to be assessed at Rs.20,000/-
per month. He further submits that the Tribunal has committed
grave error in not awarding any compensation under the head
of loss of future prospects of the appellant/claimant. It is
submitted that the Tribunal has justified in assessing the
functional disability of the appellant/claimant to the extent of
50%, which does not call for any interference. He also submits
that award of compensation under the head of pain and
suffering is on lower side. He argues that the Tribunal has not
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awarded any compensation for loss of future prospects. He
seeks to enhance the same.
8. I have heard the arguments of learned counsel for
the appellant/Insurance Company and the appellant/claimant,
perused the Tribunal records. The following points would arise
for consideration in these appeals:
a) Whether the Tribunal has justified in assessing the
functional disability of the appellant/claimant at
50%?
b) Whether the appellant/claimant is entitled for
compensation under the head of loss of future
prospects?
c) Whether the appellant/claimant entitled for
enhancement of the compensation?
8. Answer to the above points would be in the
'affirmative' for the following reasons:
9. The parties to the proceeding do not dispute that on
30.05.2018, when the appellant/claimant was proceeding on
his motor cycle, at that time, tipper lorry bearing registration
No.KL-64/4850 came from opposite direction and dashed to the
motor cycle resulted into grievous injuries on the
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appellant/claimant. It is also not in dispute that the appellant
has taken treatment at Vijaya Ortho and Trauma Centre,
Belagavi. The appellant/claimant entered the witness box as
PW1 and filed the affidavit evidence to support his claim
petition. The pleading in the claim petition and the examination
chief of PW1 indicate that the Jurisdictional Police after
completion of investigation filed charge sheet against driver of
the offending lorry for the negligent act. The evidence on
record further indicates that the appellant/claimant was
working as agriculturist and claimed that he was earning
Rs.20,000/- per month however, there is no evidence available
on record to come to a definite conclusion with regard to his
income. Hence, this Court is of the considered view that, it
would be just and appropriate to assess the income of the
appellant injured notionally at Rs.11,750/- per month, placing
reliance on the notional income chart prepared by the
Karnataka State Legal Services Authority.
10. The appellant/claimant in support of his case to
prove his disability and injuries suffered by him in the road
accident examined Dr. S D. Patil as PW2. The said witness has
unequivocally stated that the appellant/claimant has sustained
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fracture of mid shaft femur right with wound over Knee/leg and
ankle; fracture proximal femur left intraarticular fracture right
radius with proximal phalanx fracture thumb. The said witness
observed that the appellant/claimant was complaints of pain
over both thigh, right wrist, right thumb with restriction of
movements, inability to run/stand/walk for long, squat/lift
weight and do laborious works. PW-2 on examination made the
following observations:
Measurement lower limb 33" right 33" left. Operation scar
over both thighs.
Movements of Joints
Flex Extn Abd Abd IR ER Abnorma
l
R L R L R L R L R L R L R L
i Hip 80-90 0-0 30-35 25-30 20-25 20-25
ii Knee 90-100
iii Wrist 40-80 45-80
iv Forearm R-40-140 L-0-180
Pinch & Grip Strength Reduced by 20% on right
side
Opposition compared to left
Gasp-Cylindrical
Spherical Inability to run
Sensation
Muscle power
Standing for long time not possible, walking long distance not
possible, squatting not possible, sitting cross legged difficult,
standing on affected limb painful, walking on uneven surface
painful, climbing difficult, lifting weight not possible, doing
laborious work not possible.
X-ray reports:
Right Femur: malunited comminuted fracture shaft of the
right femur is seen with interlocking nail in situ.
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Left Femur: Malunited comminuted fracture proximal 1/3rd
shaft of the left femur is seen with interlocking nail in situ.
Right Wrist Joint: Malunited comminuted fracture distal end of
the right radius is seen.
Right Hand: Malunited fracture proximal phalanx of the right
thumb finger is seen.
I observed functional disability is inability to run/stand/walk
for long/squatt/lifting/ doing laborious work, restriction of
both hip/knee, right wrist and forearm movements, difficulty
in climbing, reduction of right hand pinch and grip strength. I
am of the conclusion after considering the clinical and radio
logical findings and after going through ALIMCO/WHO/Govt.
Manuals the patient in my opinion got permanent physical
disability amounting to 30% in right lower limb, 25% left
lower limb and 20% in right upper limb."
11. On perusal of evidence of PW-2, who had been
cross examined extensively, nothing has been elicited by the
appellant/Insurance Company. The evidence clearly indicates
that the appellant/claimant has suffered permanent physical
disability of 30% to right lower limb, 25% to left lower limb and
20% to right upper limb. The said doctor has also issued
disability certificate at EX-P13. The conclusion of the Disability
Certificate reads the same as deposed by PW2.
12. I have carefully gone through the finding recorded
by the Tribunal from para 16 to 19 with regard to the
consideration of disability of the appellant/claimant. The
Tribunal after appreciation of the evidence of PW2 and the
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medical record has given the definite finding that the
appellant/claimant has suffered permanent functional disability
to the extent of 50%. I do not find any error in the aforesaid
finding of the Tribunal. Insofar as the contention of the learned
counsel for the appellant/Insurance Company that PW1 in his
cross examination has admitted that, he did not know Dr. S D.
Patil, is required to be rejected for the simple reason that Dr. S
D. Patil, Orthopedic Surgeon is not the treated doctor. Dr. S D.
Patil entered the witness box and the appellant/Insurance
Company has extensively cross examined him, however, they
could not elicite any admission from the said witness. The PW2
in his cross examination has clearly stated that, he has not
treated the appellant/claimant. However, he came to him for
the purpose of assessment of disability on examining him and
on perusal of the medical record, issued the Disability
Certificate at EX-P13. Hence, the stray sentence in the cross
examination of PW1 has no relevance and based on such stray
sentence, the evidence of PW2 and EX-P13 cannot be
disbelieved.
13. The further contention of the learned counsel for
the appellant/Insurance Company that the Tribunal has
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committed error in awarding Rs.1,00,000/- under the head of
loss of amenities is also required to be rejected for the simple
reason that the appellant has sustained following injuries:
A) Fracture midshaft femur right with wound
B) Over knee leg and ankle
C)Fracture proximal femur left
D) Intra-articular fracture right radius with proximal
phalanx thumb
14. Taking note of the injuries suffered by the
appellant/claimant, this Court does not find any error in award
of compensation by the Tribunal on the head of loss of
amenities. So also, this Court does not find any error in the
award of compensation under the head of loss of income during
the laid up period and there is no doubt about the
appellant/claimant was inpatient for a period of 8 days.
However, taking note of the injuries referred supra, the
appellant/claimant is required atleast four months time to
recover from the injuries. Hence, there is no merit in the
contrary contentions raised by the learned counsel for the
appellant/Insurance Company.
13. Learned counsel appearing for the
appellant/claimant submits that the Tribunal has committed
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error in not awarding any compensation under the head of loss
of future prospects of the injured appellant/claimant.
Admittedly, the appellant/claimant was aged about 22 years at
the time of accident and was doing agriculture and used to sell
commercial crops in the market. Taking note of the evidence of
PW1, PW2 and Disability Certificate, this Court is of the
considered view that, the appellant has suffered permanent
functional disability to the extent of 50% and he is unable to
carry out his routine agricultural activity, which he was carrying
prior to the accident. Hence, there is a loss of earning capacity
and also the loss of future prospects of the appellant/ claimant.
It would be useful to refer the decision of Division Bench in the
case of NEW INDIA ASSURANCE COMPANY LTD., Vs
ABDUL1 & others. The relevant paragraphs of the aforesaid
judgment are extracted herein below
14. The learned counsel for the Insurance Company
was vehement in his submission that the component of loss
of future prospects can be factored in while awarding
compensation under the head of loss of future earning
capacity where disability arises due to amputation alone and
he was insistent that the ratio of the decision of Constitution
Bench of the Hon'ble Supreme Court in National
Insurance Company Limited v. Pranay Sethi and
MFA No.103807/2016 C/W MFA No.103835/2016, dated 27.5.2022
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others2, in this behalf should be extended only to such
cases of personal injury where physical disability has
resulted due to amputation of the limbs. The above
contention requires to be noticed only to be rejected.
15. A catena of decisions emanating from the Hon'ble
Supreme Court in SANDEEP KHANUJA vs. ATUL DANDE3,
Jagadish v. Mohan and others4 and Erudhaya Priya v.
State Express Transport Corporation Limited5 2020
SCC Online SC 601, make no such distinction in regard to
applicability of 'loss of future prospects' to cases of physical
disability resulting in loss of earning capacity from injuries
with amputation of the limbs and without amputation of the
limbs as was sought to be contended by the learned counsel
for the Insurance Company. This kind of arguments
advanced at the bar by the learned counsel appearing for
the Insurance Company only brings to sharp relief the
urgent need for updation by the learned counsel of the fast
changing approach of the law inconsonance with the felt
necessities of the time without which the precious time of
the Courts will be wasted in needlessly dwelling on the
same.
16. That there is no warrant for such a proposition
either in law, or in any recognized principles or on authority
is evident from the decision of the Hon'ble Apex Court in
Erudhaya Priya's6 case at paragraph Nos. 12 to 14 which
reads as follows:
"12. In the factual contours of the present case, if we
examine the disability certificate, it shows the
admission/hospitalization on 8 occasions for various number
of days over 1½ years from August 2011 to January 2013.
The nature of injuries had been set out as under:
"Nature of injury:
(i) compound fracture shaft left humerus
(ii) fracture both bones left forearm
(2017) 16 SCC 680
(2017) 3 SCC 351
(2018) 4 SCC 571
2020 SCC Online SC 601
2020 SCC Online SC 601
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(iii) compound fracture both bones right forearm
(iv) fracture 3rd, 4th & 5th metacarpals right hand
(v) subtrochanteric fracture right femur
(vi) fracture shaft left femur
(vii) fracture both bones left leg"
13. We have also perused the photographs annexed to
the petition showing the current physical state of the
appellant, though it is stated by learned counsel for the
respondent State Corporation that the same was not on
record in the trial court. Be that as it may, this is the
position even after treatment and the nature of injuries itself
show their extent. Further, it has been opined in para 12
of Sandeep Khanuja case (supra) that while applying the
multiplier method, future prospects on advancement in life
and career are also to be taken into consideration.
14. We are, thus, unequivocally of the view that there
is merit in the contention of the appellant and the aforesaid
principles with regard to future prospects must also be
applied in the case of the appellant taking the permanent
disability as 31.1%. The quantification of the same on the
basis of the judgment in National Insurance Co. Ltd.
case (supra), more specifically para 59.3, considering the
age of the appellant, would be 50% of the actual salary in
the present case."
17. In the above case, before the Supreme Court,
appellant did not suffer any amputation of the limbs.
18. What is the true basis for incorporating 'loss of
future prospects' in computing compensation under the head
of loss of future earning capacity? Is it because courts have
to make a distinction between various classes of injuries
resulting in disabilities having a bearing on the earning
capacity and thereafter, mark the cases only of disability
resulting from amputation of limbs for incorporating an
additional component of 'loss of future prospects' into the
computational process of loss of future income? Our answer
is an emphatic No! In an opinion marked by considerable
prescience and percipience, Singhvi J. speaking for a Bench
of Supreme Court observed as follows:
"14. We find it extremely difficult to fathom any
rationale for the observation made in paragraph 24 of the
judgment in Sarla Verma's case that where the deceased
was self-employed or was on a fixed salary without provision
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for annual increment, etc., the Courts will usually take only
the actual income at the time of death and a departure from
this rule should be made only in rare and exceptional cases
involving special circumstances. In our view, it will be naïve
to say that the wages or total emoluments/income of a
person who is self-employed or who is employed on a fixed
salary without provision for annual increment, etc., would
remain the same throughout his life.
15. The rise in the cost of living affects everyone across
the board. It does not make any distinction between rich and
poor. As a matter of fact, the effect of rise in prices which
directly impacts the cost of living is minimal on the rich and
maximum on those who are self- employed or who get fixed
income/emoluments. They are the worst affected people.
Therefore, they put extra efforts to generate additional
income necessary for sustaining their families.
16. The salaries of those employed under the Central
and State Governments and their agencies/instrumentalities
have been revised from time to time to provide a cushion
against the rising prices and provisions have been made for
providing security to the families of the deceased
employees. The salaries of those employed in private sectors
have also increased manifold. Till about two decades ago,
nobody could have imagined that salary of Class IV
employee of the Government would be in five figures and
total emoluments of those in higher echelons of service will
cross the figure of rupees one lakh.
17. Although, the wages/income of those employed in
unorganized sectors has not registered a corresponding
increase and has not kept pace with the increase in the
salaries of the Government employees and those employed
in private sectors but it cannot be denied that there has
been incremental enhancement in the income of those who
are self-employed and even those engaged on daily basis,
monthly basis or even seasonal basis. We can take judicial
notice of the fact that with a view to meet the challenges
posed by high cost of living, the persons falling in the latter
category periodically increase the cost of their labour. In this
context, it may be useful to give an example of a tailor who
earns his livelihood by stitching cloths. If the cost of living
increases and the prices of essentials go up, it is but natural
for him to increase the cost of his labour. So will be the
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cases of ordinary skilled and unskilled labour, like, barber,
blacksmith, cobbler, mason etc.
18. Therefore, we do not think that while making the
observations in the last three lines of paragraph 24 of Sarla
Verma's judgment, the Court had intended to lay down an
absolute rule that there will be no addition in the income of a
person who is self-employed or who is paid fixed wages.
Rather, it would be reasonable to say that a person who is
self-employed or is engaged on fixed wages will also get 30
per cent increase in his total income over a period of time
and if he/she becomes victim of accident then the same
formula deserves to be applied for calculating the amount of
compensation."
(Santosh Devi v. National Insurance Company
Limited and others)7
19. It is thus evident that this component of 'loss of
future prospects' is a forensic tool forged by the Supreme
Court to off-set the adverse effect of imponderable vagaries
of inflation on the assessment of loss of future earning. To
link this component only to disability arising from
amputation of limbs defies logic and has no sanction of law.
It is undoubtedly true that it is no part of the statutory law
governing the field of award of compensation in motor
vehicle accident cases. But, Courts are enjoined under law to
award "just compensation" and no compensation can be
regarded as just unless law is capable of reinventing itself by
making proper adjustments as the "needs of the time
require". Judges some times make law if the statutes made
by the Parliament fall short of meeting the requirements of
the time.
14. Keeping in mind the enuciation of law laid down by
the Hon'ble Supreme Court in the case of ERUDHAYA PRIYA
Vs STATE EXPRESS TRANSPORT CORPORATION LTD.,
which is followed by the Division Bench of this Court in the case
(2012) 6 Supreme Court Cases 421
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of NEW INDIA ASSURANCE COMPANY LTD., Vs ABDUL &
others referred supra. This Court is of the considered view
that, the appellant/claimant in the road accident has suffered
50% of the functional disability and hence, he is entitled for the
compensation under the head of loss of future prospects at the
rate of 40% of his assessed income.
15. Thus, the appellant/claimant would be entitled to
compensation under the head of loss of future income:
Rs.11,750 + 40% x 12 x 18 x 50% = Rs.17,76,600/-
SL. HEADS AMOUNT
NO.
1 Loss of future income due to permanent Rs.17,76,600/-
disability
2 Hospital/medical expenses Rs. 2,39,278/-
3 Pain and sufferings Rs. 50,000/-
4 Food and nourishment Rs. 4,000/-
5 Attendant charges Rs. 4,000/-
6 Traveling expenses Rs. 3,000/-
7 Loss of income during laid up period(3 Rs. 32,250/-
months)
8 Loss of amenities including loss of marital Rs. 1,00,000/-
prospects
Total Rs.22,09,128/-
20. The Tribunal has awarded just and proper
compensation on the other heads, which is unaltered. The
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appellant/claimant is entitled for the interest at the rate of 6%
on the enhanced compensation amount.
21. For the aforementioned reasons, I proceed to pass
the following order:
ORDER
A) MFA No.104899/2019 filed by the appellant/
Insurance Company is dismissed.
B) MFA No.100917/2020 filed by the appellant/claimant
allowed in part.
C) The impugned judgment and award of the Tribunal is
modified to an extent that the claimants in MVC
No.958/2018 would be entitled to total compensation
of Rs. 22,09,128/- as against Rs.13,52,278/-
awarded by the Tribunal.
D) The enhanced compensation amount shall carry
interest at the rate of 6% per annum from the date of
petition till the date of payment.
E) The appellant/Insurance Company shall deposit the
enhanced compensation amount in the appeal filed by
the appellant/claimant with accrued interest before the
Tribunal within a period of six weeks from the date of
receipt of certified copy of this judgment.
F) The apportionment, deposit and disbursement of
enhanced compensation shall be made as per award of
the Tribunal.
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G) The amount in deposit made by the appellant/insurance
company in MFA No.104899/2019 is transmitted to the
Tribunal along with TCR.
H) Draw modified award accordingly.
Sd/-
JUDGE
