Karnataka High Court
Shivanand vs Hanmanth And Anr on 12 January, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
-1-
NC: 2024:KHC-K:528-DB
MFA No.201860 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO.201860 OF 2019 (MV-I)
BETWEEN:
SHIVANAND
S/O BABU KATKE
AGED ABOUT 30 YEARS
OCC: PAINTING SUPERVISOR NOW NIL
R/O NEW ASHOK NAGAR
VASHI NAKA, CHAMBUR MUMBAI - 74
NOW AT R/O AT VILLAGE KITTA NAKA
BASAVAKALYAN, DIST.BIDAR.
...APPELLANT
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
Digitally signed
by SWETA
KULKARNI AND:
Location: HIGH
COURT OF
KARNATAKA 1. HANMANTH
S/O PEERAJI GAJRE,
AGED ABOUT 56 YEARS
OCC: BUSINESS AND OWNER OF
SCORPIO VEHICLE BEARING
REG.NO.MH-46/P-9530
R/O KRISHNA HEIGHTS
FLAT NO.401, PL31/A SECTOR 36
KAMOTHE, TQ: PANVEL
DIST. RAIGHAD (M.S.) - 4010206.
-2-
NC: 2024:KHC-K:528-DB
MFA No.201860 of 2019
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LTD.,
OPP. MINI VIDHAN SOUDHA
STATION ROAD, KALABURAGI - 585 101.
...RESPONDENTS
(BY SRI S.S. ASPALLI, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH V/O. DATED 15.02.2023)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO MODIFY THE JUDGMENT AND
AWARD DATED: 04.10.2018 PASSED BY THE II ADDL. DISTRICT
AND SESSIONS COURT AND M.A.C.T., BIDAR, SITTING AT
BASAVAKALYAN, IN M.V.C. NO.737/2015, BY ENHANCING THE
COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS MFA COMING ON FOR ADMISSION, THIS DAY
B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has suffered amputation of his left upper
limb above elbow because of the injuries suffered in a road
accident on 27.11.2023, and his claim petition in MVC
No.737/2015 on the file of the II Additional District and
Sessions Judge and MACT, Bidar, sitting at Basavakalyan
[for short, 'the Tribunal'] is partly allowed by the impugned
judgment and award dated 04.10.2018. The Tribunal has
granted to the appellant a total compensation of
Rs.7,90,000/- with interest at the rate of 9% per annum
with the further direction that 50% of the amount shall be
NC: 2024:KHC-K:528-DB
disbursed immediately and another 50% shall be in fixed
deposit for a period of five years. The Tribunal has granted
this compensation of Rs.7,90,000/- under the following
heads:
Loss of earning capacity Rs.3,67,200/-
Medical Bills Rs.1,74,660/-
Loss of income during laid up Rs.18,000/-
period
Pain and suffering Rs.20,000/-
Conveyance and extra Rs.20,000/-
nourishment
Loss of amenities Rs.20,000/-
Expenses towards artificial Rs.1,00,000/-
limb
Future medical expenses Rs.20,000/-
Loss of marriage prospects Rs.50,000/-
Total Rs.7,89,860/-
Rounded off Rs.7,90,000/-
2. Sri Sanjeev Kumar C. Patil, the learned counsel
for the appellant, and Sri S.S. Aspalli, the learned counsel
for the second respondent - Insurer, are heard, and they are
categorical that the fact of the accident, that the appellant
has suffered injuries resulting in amputation, and that the
Insurer's liability are not disputed, and they also submit
that the only question for consideration in this appeal is
whether there must be any enhancement. Sri Sanjeev
NC: 2024:KHC-K:528-DB
Kumar C. Patil submits that there must be enhancement in
compensation under three heads viz., [a] towards permanent
disability, [b] towards loss of income during laid up period
and [c] towards pain and suffering, and the canvass in this
regard is opposed by Sri S.S. Aspalli.
3. Sri Sanjeev Kumar C. Patil submits that the
evidence on record namely the Employment Certificates
[Exs.P-10 and P-11] and the appellant's photographs [Exs.P-
42 to P-48] corroborate the appellant's case that he, as of
the date of the accident, was working as a spray painter, a
skilled job and therefore, the Tribunal could not have taken
the income of the appellant at Rs.6,000/- per month and the
Tribunal should have taken the income at Rs.30,000/- per
month. The learned counsel next submits that the Tribunal
has taken the permanent disability at 30% when even
according to the circular issued by the Central Government
that when there is amputation above elbow, disability
certificates are to be issued for disability at 85%.
NC: 2024:KHC-K:528-DB
4. Sri S.S. Aspalli, on the other hand, submits that
Employment Certificates as per Exs.P-10 and P-11 are
secured only for the purpose of present claim petition, and
this could be seen from the fact that the author is not
examined. The learned counsel submits that the Certificates
do not mention the income of the appellant and there is no
document to show that the appellant had undergone any
training and as such, the income is rightly taken by the
Tribunal in terms of the Schedule for settlement in Lok
Adalat that prevailed as on that date.
5. However, Sri S.S. Aspalli does not dispute that
when there is amputation above elbow, according to Part-II
of Schedule-I of the Employee's Compensation Act, 1923, the
percentage of permanent disability is taken at 60%. It is
settled that where compensation towards permanent
disability must be awarded, the resultant functional
disability would be crucial. Whether the appellant was
working as a coolie or a spray painter the functional
disability would be more than 30% and it should be taken at
60% for the purpose of just and reasonable compensation.
NC: 2024:KHC-K:528-DB
6. The notional income that is adopted in the cases
of accidents in the year 2013 as in the present case,
according to the schedule for settlement in Lok Adalat is
Rs.7,000/- per month, but the question is whether this
Court must adopt such income with necessary addition
towards future prospects as it is no longer res integra that in
case of permanent disability addition towards future
prospects, as is enunciated in the decision of the Hon'ble
Supreme Court in National Insurance Co. Ltd. vs. Pranay
Sethi1, is also extended.
7. This Court has examined the evidence in the light
of the afore and such evidence is not just the certificates but
also the photographs of the appellant and the ocular
evidence. This Court is not persuaded to opine that the
appellant was working just as a coolie without any further
skills. It is highly probable that the appellant had acquired
skills as a painter. The appellant may not be justified in
claiming Rs.30,000/-per month as the income, but for just
1 (2017) 16 SCC 680
NC: 2024:KHC-K:528-DB
and reasonable compensation the appellant's income must
be taken in a sum of Rs.10,000/- as notional monthly
income with necessary addition towards future prospects at
40%. Consequentially, there must be increase in the
amount awarded towards loss of future income and loss of
income during laid up period. The compensation towards
loss of future income will be thus:
Loss of future income because of permanent disability
Notional Monthly Income Rs.10,000.00
Future Prospects at 40% Rs.4,000.00
Total Income with Future Prospects Rs.14,000.00
Annual Income with Future Prospects Rs.1,68,000.00
Total Income with Future Prospects
and Multiplier Rs.28,56,000.00
Percentage of Disability 60%
Loss of future Income because of
permanent Disability Rs.17,13,600.00
8. The loss of income during the laid up period
would be Rs.30,000/- as against Rs.18,000/-. The Tribunal
has awarded a sum of Rs.20,000/- towards pain and
NC: 2024:KHC-K:528-DB
suffering and given the nature of injuries, the just and
reasonable compensation under this head would be
Rs.50,000/-. Therefore, total compensation would be thus:
Description By the Tribunal By this Court
Loss of earning Rs.3,67,200/- Rs.17,13,600/-
capacity
Medical Bills Rs.1,74,660/- Rs.1,74,660/-
Loss of income during Rs.18,000/- Rs.30,000/-
laid up period
Pain and suffering Rs.20,000/- Rs.50,000/-
Conveyance and extra Rs.20,000/- Rs.20,000/-
nourishment
Loss of amenities Rs.20,000/- Rs.20,000/-
Expenses towards Rs.1,00,000/- Rs.1,00,000/-
artificial limb
Future medical Rs.20,000/- Rs.20,000/-
expenses
Loss of marriage Rs.50,000/- Rs.50,000/-
prospects
Total Rs.7,89,860/- Rs.21,78,260/-
Rounded off Rs.7,90,000/- Rs.21,78,200/-
Enhancement Rs.13,88,200/-
In the light of the afore, the following:
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment and award dated
04.10.2018 passed in MVC No.737/2015 on
the file of the II Additional District and
NC: 2024:KHC-K:528-DB
Sessions Judge and Addl. MACT, Bidar
sitting at Basavakalyan is modified granting
the appellant enhanced compensation of
Rs.13,88,200/- along with interest at the
rate of 6% per annum.
(iii) The second respondent- Insurer shall
deposit the enhanced compensation of
Rs.13,88,200/- along with interest within a
period of eight [8] weeks from the date of
receipt of copy of this judgment. However,
the appellant will not be entitled for interest
for a period of 239 days in terms of this
Court's order dated 26.10.2023.
Sd/-
JUDGE
Sd/-
JUDGE
SWK
Ct;Vk
