Karnataka High Court
The United India Insurance Company ... vs Leela And Anr on 29 February, 2024
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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NC: 2024:KHC-K:1849-DB
MFA No. 201987 of 2023
C/W MFA.CROB No. 200006 of 2024
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE K V ARAVIND
MISCL. FIRST APPEAL NO. 201987 OF 2023 (MV-I)
C/W
MFA CROSS OBJ NO. 200006 OF 2024
M.F.A NO. 201987 OF 2023
BETWEEN:
LEELA W/O TARASINGH RATHOD,
AGE: 33 YEARS, OCC: LABOUR, NOW NIL,
R/O YAGAPUR CHANDU NAYAK TANDA,
TQ: CHITTAPUR, DIST: KALABURAGI.
...APPELLANT
(BY SRI. SANJEEV PATIL, ADVOCATE)
Digitally signed
by VARSHA N
RASALKAR AND:
Location: HIGH
COURT OF
KARNATAKA
1. GOVIND S/O BAPU,
AGE: MAJOR , OCC: OWNER OF TUM TUM
AUTO BEARING NO KA-33 /A- 2436,
R/O YARGOL, TQ: & DIST: YADGIR-585201.
2. THE UNITED INDIA INSURANCE CO. LTD.,
THROUGH ITS DIVISIONAL MANAGER,
IIND FLOOR, CENTURY COMPLEX,
OPP: SANGAM TAKIES KALABURAGI-585102.
...RESPONDENTS
(BY SRI. J. AUGUSTIN, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH )
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MFA No. 201987 of 2023
C/W MFA.CROB No. 200006 of 2024
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO, EXERCISE ITS APPELLATE JURISDICTION, CALL
FOR THE ENTIRE LOWER COURT RECORDS AND MODIFY THE
JUDGEMENT AND AWARD DATED 19.10.2022 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE & MACT AT CHITTAPUR IN MVC
NO.710/2021 BY ENHANCING THE COMPENSATION AMOUNT
AS PRAYED FOR, IN THE INTEREST OF JUSTICE AND EQUITY.
MFA CROSS OBJ NO. 200006 OF 2024
BETWEEN:
THE UNITED INDIA INSUANCE COMPANY LIMITED,
DIVISIONAL OFFICE, OPP: SANGAM TALKIES,
SUPER MARKET, KALABURAGI-585101.
NOW REPRESENTED BY ITS
AUTHORISED SIGNATORY
...CROSS OBJECTOR
(BY SRI. J. AUGUSTIN, ADVOCATE)
AND:
1. LEELA W/O TARASINGH RATHOD,
AGE: 33 YEARS, OCC: LABOUR, NOW NIL,
R/O YAGAPUR CHANDU NAYAK TANDA,
TQ: CHITTAPUR, DIST: KALABURAGI-585218.
2. GOVIND S/O BAPU,
AGE: MAJOR, OCC: OWNER OF TUM TUM
AUTO BEARING NO KA-33 /A- 2436,
R/O YARGOL, TQ & DIST: YADGIR-585201.
...RESPONDENTS
(BY SRI. SANJEEV PATIL, ADVOCATE FOR R1;
NOTICE TO R2 DISPENSED WITH)
THIS MFA CROSS OBJECTION IS FILING UNDER ORDER
41 RULE 22 OF CPC, PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED 19.10.2022 PASSED IN M.V.C. NO.710/2021 BY
THE SENIOR CIVIL JUDGE & MACT CHITTAPUR, REDUCING THE
QUANTUM OF COMPENSATION AND ETC,.
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MFA No. 201987 of 2023
C/W MFA.CROB No. 200006 of 2024
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR
ADMISSION, THIS DAY, K V ARAVIND J., DELIVERED THE
FOLLOWING:
JUDGMENT
Though this appeal and cross objection coming for
admission, with the consent of both the learned counsel,
taken up together for final disposal.
This appeal and the cross objection by the claimant
and the insurer against the judgment and award dated
19.10.2022 passed in MVC No.710/2021 on the file of
Senior Civil Judge & MACT, Chittapur (for short, 'the
Tribunal').
The appeal by the claimant is for enhancement of
compensation. Cross objection by the insurer disputing the
percentage of disability considered by the Tribunal.
2. The claimant filed claim petition under Section
166 of the Motor Vehicles Act, 1988 (for short 'the Act')
seeking compensation for injuries suffered in the road
traffic accident that has taken place on 19.04.2021
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C/W MFA.CROB No. 200006 of 2024
involving a tum-tum auto bearing Reg.No.KA-33/A-2436
(for short, 'the offending vehicle'). It is stated that the
claimant while traveling in the offending vehicle, the driver
of the said vehicle lost control over it and she fell down
and rear wheel of auto ran over her right leg. It is stated
that the claimant was skilled labour and earning
Rs.25,000/- per month.
3. On issuance of notice, respondents appeared
through counsels and filed objections. Respondent No.1
contended that vehicle is insured with respondent No.2
and any compensation awarded, liability should be
fastened on the insurer-respondent No.2. Respondent
No.2/Insurance Company denying the averments made in
the petition, disputed the liability and alleged violation of
policy conditions. Further disputed the age, income and
avocation of the claimant.
4. The claimant examined herself as PW.1 and
marked Exs.P1 to P13; the doctor was examined as PW.2.
Respondents have not examined any witness and no
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documents are marked. The Tribunal considering the
evidence of doctor as per disability certificate/Ex.P11
assessed the disability at 100%, considered the age as
'38' years, applied multiplier '15', assessed income at
Rs.15,000/- per month. The Tribunal awarded total
compensation of Rs.31,89,300/- under various heads as
under:
Sl. Compensation
Different heads
No. Amount
1 Loss of Future income Rs.27,00,000-00
2 Pain and Agony Rs.50,000-00
3 Medical Expenses Rs.2,19,236-00
Loss of amenities and
4 Rs.50,000-00
nutritious food
Attendant charges and
5 Rs.30,000-00
conveyance
Loss of income during laid up
6 Rs.90,000-00
period
7 Future Medical expenses Rs.50,000-00
Total Rs.31,89,236-00
Rounded off to Rs.31,89,300-00
5. Heard Sri. Sanjeev Patil, learned counsel for the
appellant-claimant and Sri. J. Augustin, learned counsel
for the insurer.
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6. Learned counsel for the claimant submits that
claimant was a skilled labour earning Rs.25,000/- per
month, due to the accident her leg is amputed. The
income assessed at Rs.15,000/- per month is on the lower
side. It is further contended that due to amputation, the
claimant cannot continue to do her skill work. The
Tribunal failed to award any compensation towards future
prospects. Further submits that in view of the amputation,
the claimant has to undergone fixation of artificial limb, no
compensation is awarded towards future medical expenses
i.e. artificial limb. Further submits that the compensation
awarded under other heads is also on the lower side.
Thus, prays to enhance the compensation.
7. Pet contra, learned counsel appearing for the
insurer submits that no evidence is placed on record that
the claimant was skilled labour. The amputation of leg
would not completely deprive the claimant from doing any
other alternative work and to earn from the said work. In
the absence of any evidence to prove that the disability
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suffered by the claimant would deprive her from carry on
any activity, the Tribunal committed an error in assessing
disability at 100%. Insofar as the claim of the claimant
that artificial limb is to be fixed, it is submitted that no
evidence is placed on record regarding fixation of artificial
limb. Thus, prays to re-assess the compensation.
8. Heard learned counsel for the parties and
perused the appeal papers.
9. The accidental injuries due to the accident that
occurred on 19.04.2021 by the offending vehicle is not in
dispute in this appeal. Ex.P6/wound certificate would
show that the claimant has suffered following injuries.
1. De-gloving avulsion of right leg
2. De-gloving chest injury over distal right thigh to
proximal leg
3. Fracture of right tibia, right femur
10. Ex.P11/Disability certificate issued by PW.2
assessed whole body disability at 90%. It is not in dispute
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that the claimant has undergone amputation to leg. No
evidence is placed on record to prove that the amputation
has deprived the claimant from carry on any other
activities and to earn. Though no evidence is placed on
record that the claimant was skilled worker and even if it
assumed so for the purpose of computing compensation,
merely because the claimant cannot continue the same
work due to the disability, it cannot be accepted that the
said disability would disentitle her to carry on any other
activity and earn. The Schedule-I to Employee's
Compensation Act (for short, 'the E.C.Act') has determined
percentage of loss of earning capacity due to the nature of
injuries sustained. As per Schedule-I to E.C.Act, the
amputation to leg below hip is assessed at 70%, the 100%
disability assessed by the Tribunal is without basis and on
the higher side. Hence, we assessed disability at 70% as
per Schedule-I of the E.C.Act. The age and applicable
multiplier is not in dispute. In the absence of any evidence
to prove the income of the claimant, the income is to be
assessed on the basis of the avocation and surrounding
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circumstances. No evidence is placed on record to prove
any income and avocation. In such circumstances income
of the claimant has to be assessed notionally. Karnataka
State Legal Services Authority has suggested income of
Rs.14,250/- for the accident of the year 2021. Hence, we
consider the income of the claimant at Rs.14,250/- against
Rs.15,000/- assessed by the Tribunal.
11. As per Ex.P11 and evidence on record, it is
clear that the claimant has undergone amputation. In
view of the amputation and other injuries suffered in the
accident it would not be possible for the claimant to carry
on any work as earlier, which would result in reduction in
her earning capacity. In such circumstances, the claimant
would be entitled for future prospects as per National
Insurance Co. Ltd., Vs. Pranay Sethi, (2017) 16 SCC
680. The claimant is aged 38 years and not having any
permanent job would be entitled for 40% of the assessed
income towards future prospects. Thus, the total
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compensation under the head of loss of future income is
re-assessed as under:
Loss of future income because of permanent disability
Notional monthly income Rs.14,250/-
Future prospects at 40% Rs.5,700/-
Total income with future prospects Rs.19,950/-
Annual income with future prospects Rs.2,39,400/-
Total income with future prospects and Rs.35,91,000/-
multiplier
Percentage of disability 70%
Loss of future income because of Rs.25,13,700/-
permanent disability
12. The claimant has suffered de-glowing injury and
fracture of right tibia and femur. Further she has
undergone amputation to her leg. She was inpatient from
19.04.2021 to 03.05.2021. Considering the nature of
injuries suffered and treatment undergone the
compensation awarded towards pain and suffering is on
the lower side. Therefore, we deem it appropriate to award
Rs.75,000/- against Rs.50,000/- as awarded by the
Tribunal.
13. It is not in dispute that the claimant has
suffered amputation to her leg and she is entitled to fix
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artificial limb. The Tribunal ought to have considered the
requirement of artificial limb that too when the claimant is
aged 38 years. The Tribunal committed an error in not
awarding compensation towards fixing of artificial limb.
Considering the compensation awarded by the Courts
towards cost of artificial limb, we deem it appropriate to
award a sum of Rs.3,00,000/- towards fixing of artificial
limb. Thus, the total compensation is re-assessed as
under:
Sl. Compensation Amount awarded
Different heads
No. Amount by this Court
1 Loss of Future income Rs.27,00,000-00 Rs.25,13,700/-
2 Pain and Agony Rs.50,000-00 Rs.75,000/-
3 Medical Expenses Rs.2,19,236-00 Rs.2,19,236/-
Loss of amenities and
4 Rs.50,000-00 Rs.50,000/-
nutritious food
Attendant charges and
5 Rs.30,000-00 Rs.30,000/-
conveyance
Loss of income during laid up
6 Rs.90,000-00 Rs.90,000/-
period
7 Future Medical expenses Rs.50,000-00 Rs.50,000/-
8 Towards artificial limb ---- Rs.3,00,000/-
Total Rs.31,89,236/- Rs.33,27,936/-
Rounded off to Rs.31,89,300/- Rs.33,28,000/-
Enhancement Rs.1,38,700/-
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14. Thus, the claimant would be entitled to total
compensation of Rs.33,28,000/- as against Rs.31,89,300/-
awarded by the Tribunal.
15. Hence, the following:
ORDER
(i) Both appeal and cross objection are
allowed in part.
(ii) The impugned judgment and award of the
Tribunal is modified to an extent that the
claimant is entitled to total compensation of
Rs.33,28,000/- as against Rs.31,89,300/-
awarded by the Tribunal.
(iii) The compensation amount will bear interest
at the rate of 6% per annum from the date
of claim petition till date of realization.
(iv) The cross objector-insurer shall deposit the
compensation amount with accrued interest
before the Tribunal within a period of eight
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weeks from the date of receipt of a certified
copy of this order.
(v) The amount in deposit, if any, be
transmitted to the concerned Tribunal
forthwith.
(vi) The deposit and disbursement shall be
made as per the award of the Tribunal.
(vii) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
sdu
CT: CS
