Karnataka High Court
Sri T B Prabhakara S/O T R Balan vs Sri M M Suresha on 13 November, 2024
-1-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
MISCELLANEOUS FIRST APPEAL NO. 3431 OF 2013 (MV-I)
BETWEEN
SRI. T.B. PRABHAKARA
S/O. T.R. BALAN,
AGED ABOUT 32 YEARS
NEERUKOLLI IBNIVALAVADI VILLAGE,
MADIKERI TALUK, KODAGU DISTRICT.
... APPELLANT
(BY MISS. AKANKSHA NATESAN, ADVOCATE FOR
SRI. G.K.V MURTHY AND P.E. UMESH, ADVOCATES)
AND
1. SRI. M.M. SURESHA S/O. M.N. MANI,
AGED ABOUT 28 YEARS,
Digitally signed by
CHANDRASHEKAR
LAXMAN
NEERUKOLLI,
KATTIMANI
Location: HIGH
COURT OF
IBNIVALAVADI VILLAGE
KARNATAKA
MADIKERI TALUK, KODAGU DISTRICT.
2. M/S. NATIONAL INSURANCE CO. LTD.,
DIRECT AGENTS BRANCH
371/A, 3RD FLOOR,
PRESTIGE SHOPPING ARCADE,
RAMASWAMY CIRCLE MYSORE,
REPRESENTED BY ITS BRANCH MANAGER.
-2-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
3. SRI. MOHAMMED AFTHAL A.A.
S/O. M.K. AHMED
8/43, MUTHAPPA TEMPLE ROAD,
MADIKERI-571201. ...RESPONDENTS
(BY SRI. B.C. SEETHARAMA RAO, ADVOCATE FOR R2;
R1 SERVED AND UNREPRESENTED;
V/O. DATED 17.07.2014 NOTICE TO R3 DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 31.12.2012
PASSED IN MVC NO.12/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MACT, MADIKERI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.08.2024 AND COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT', THIS DAY, THIS COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CAV J U D G M E N T
In this appeal, the petitioner is seeking enhancement
of compensation.
2. The rank of the parties shall be referred to as
per their status before the Tribunal.
3. Brief facts of the case are, on 30.03.2009 while
the petitioner was traveling in an autorickshaw bearing
-3-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
Reg.No.KA-12/A-748 at about 4-45 p.m. near
Kandanakolli village in a slope road, the driver of the said
auto lost control, due to which, the auto got toppled. The
petitioner being the passenger fell down from the
autorickshaw, his right hand was crushed. After taking
treatment at Government Hospital, Madikeri, BGS Apollo
Hospital, Mysuru, he was treated at Command Hospital,
Bengaluru under 9 months' hospitalization where his right
hand thumb was amputated. His right hand was not
restored in spite of grafting of right forefinger in place of
thumb and thereby his entire right hand has become
useless.
3.1. The petitioner was serving in the Indian Army,
because of the amputation of his right thumb, he was
forced to take retirement on completion of 15 years of
service though he can serve upto 60 years and he lost his
promotional prospects. Seeking grant of compensation of
Rs.61,58,000/, he has approached the Tribunal against the
driver and the owner of the autorickshaw as well as the
-4-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
United India Insurance Co. Ltd. as the insurer of the
autorickshaw. Respondent No.1 and the United India
Insurance Co. Ltd. have filed objection statement. Later
the United India Insurance Co. Ltd. was deleted and
National Insurance Co. Ltd. was brought on record in its
place as second respondent. The National Insurance Co.
Ltd. did not file its objection statement. The Tribunal, after
taking the evidence and hearing both the parties, by the
impugned judgment allowed the claim petition in part and
granted compensation of Rs.4,78,472/- with interest at
6% p.a. and fastened liability against the respondents,
directed the National Insurance Company to deposit the
compensation. Pleading inadequacy and seeking
enhancement, the petitioner is before this Court.
4. Heard the arguments of Ms. Akanksha Natesan,
learned counsel for Sri G.K.V. Murthy, learned counsel
appearing on behalf of the petitioner and Sri B.C.
Seetharama Rao, learned counsel for the National
Insurance Co. Ltd.
-5-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
5. Ms.Akanksha argued that, the petitioner was a
Soldier in the Indian Army, the medical evidence is placed
through the treated Doctor from Command Hospital,
Bengaluru that the petitioner has suffered disability of
50%. On account of the amputation of thumb, grafting of
his another thumb was also carried out, both were failed,
thereby the petitioner has suffered permanent disability
and even under the Schedule-I of the Workmen's
Compensation Act, amputation of right thumb, the
statutory disability will be 30%.
5.1. It is further contended that, the Tribunal did not
consider loss of income during hospitalization for more than
6 months and during laid-up. Calculation of future loss of
income is not in accordance with the settled principles. The
petitioner could have retired from the service at the age of
54, wherein he was made to retire at the age of 37 and he
has lost huge service. From the date of accident in the
year 2009 till his retirement in the year 2018, he was made
to work in the lower grade/cadre from Lance Naik to Soldier
-6-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
under the lesser salary. Since there is no prospects for the
petitioner to continue the service on account of amputation,
he was made to retire compulsorily with meager pension of
Rs.7,000/-. She further argued that the petitioner apart
from losing his career, suffered financial loss, sustained
physical disability affecting his earning capacity and he is
required to be compensated adequately.
5.2. To buttress her argument, she has relied on the
judgments in Sarnam Singh -vs- Shriram General
Insurance Co. Ltd. & Ors1; Sidram -vs- The Divisional
Manager, United India Insurance Co. Ltd. and Anr.2
and T.J.Parameshwarappa -vs- The Branch Manager,
New India Asurance Co. Ltd.3
6. Per contra, learned counsel for the Insurance
Company has contended that, the Tribunal, considering
the nature of injuries sustained by the petitioner has
rightly assessed the disability with reference to the
1
Civil Appeal No.3900 of 2023
2
Civil Appeal No.8510 of 2022
3
Civil Appeal Nos.8598-8599 of 2022
-7-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
Workmen's Compensation Schedule at 30% and taken the
last drawn salary minus the pension and assessed the
future loss of income, same is under the established
principles of law. The argument canvassed on behalf of
the petitioner is flowery and the petitioner cannot be
allowed to make a windfall on account of the accident. The
compensation assessed is just and proper and it is not a
case for enhancement.
7. I gave my anxious consideration to the
arguments addressed by the learned counsel for both the
parties and perused the records.
8. Before the Tribunal, the petitioner has placed
the evidence to explain the actionable negligence on the
part of the petitioner. The petitioner was passenger of the
autorickshaw and he has no role in the accident in
question and the driver has to explain the circumstances
of the accident took place. As the prosecution papers
clearly point out that the accident took place within the
limits of Madikeri Rural Police Station, which is a hillock
-8-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
where the driver of the autorickshaw attempted to climb
the upgradient road, due to which, auto was toppled,
resulting in crush injury to the right hand of the petitioner.
9. The medical records show that the petitioner
was treated at Government Hospital, Madikeri, BGS Apollo
Hospital, Mysuru and then at Command Hospital,
Bengaluru. As the treatment was not successful, right
thumb of petitioner was amputated, and his middle finger
was grafted to the thumb to facilitate him to operate the
weapon in the middle, but it was failed. Thus, the
actionable negligence on the part of the driver of the
autorickshaw and the injuries sustained by the petitioner
has been explained.
10. The petitioner was under hospitalization at
Command Hospital from 01.04.2009 to 13.05.2009 for a
period of 43 days with 3 weeks' sick leave, secondly
between 03.06.2009 to 16.10.2009 for a period of 4
months 13 days with 6 weeks sick leave. It goes to show
that the petitioner was under hospitalization for a period of
-9-
NC: 2024:KHC:46127
MFA No. 3431 of 2013
5 months 26 days including his sick leave during which he
was laid to rest, he has lost his leave and he has to be
compensated for the said period.
11. The Tribunal has awarded the compensation
under the following heads:
1. Medical expenses Rs. 47,700/-
2. Pain and sufferings Rs. 20,000/-
3. Conveyance charges Rs. 5,000/-
4. Nutritious food Rs. 5,000/-
5. Attendant charges Rs. 1,000/-
6. Future unhappiness and loss of Rs. 10,000/-
amenities
7. Loss of future income Rs. 3,89,772/-
Total Rs.4,78,472/-
12. The accident is of the year 2009. Taking into
consideration the age of the petitioner as 28 years, he has
to be compensated with Rs.25,000/- towards pain and
sufferings, medical expenses of Rs.47,750/-, conveyance
charges of Rs.5,000/-, food and nourishment at
Rs.15,000/-, for attendant charges of 5 months 26 days at
the rate of Rs.5,000/- per month at Rs.29,400/-, loss of
amenities and discomfort has to be compensated with
Rs.25,000/-, laid-up of 5 months 26 days of
- 10 -
NC: 2024:KHC:46127
MFA No. 3431 of 2013
hospitalization and 9 weeks of sick leave comes to 8
months, for which the petitioner has to be compensated.
As a Lance Naik, the petitioner was expected to draw a
salary of Rs.25,049/- but he was paid only Rs.23,969/- as
a Soldier. Then loss of income has to be calculated at the
monthly income of Rs.25,049/- and for 8 months it comes
to Rs.2,00,392/-.
13. As regarding loss of future income is concerned,
it has been vehemently argued that the petitioner has to
be compensated with the salary equivalent to the Captain
if he was continued his job upto the age of 54 and he
could have earned the higher salary, because of the
amputation, he was lowered from Lance Naik to Solder. He
was subjected to Medical Board where he was put under
the low medical risk category and ultimately he was made
to take a compulsory retirement on completion of 15 years
of service at the age of 37 years. The petitioner has lost
17 years of service and therefore the income of the
petitioner has to be taken equivalent to the rank of the
- 11 -
NC: 2024:KHC:46127
MFA No. 3431 of 2013
Captain. This argument is strange as on the date of
accident, the petitioner was working as a Lance Naik at
Four Engineers and he was drawing salary of Rs.25,049/-.
He was permitted to work as a Soldier on account of
amputation of his right hand, he was paid salary of
Rs.23,969/- and he was allowed to retire on 31.01.2018,
post-retirement, he was drawing pension of Rs.7,000/-.
14. The evidence of Mr.Antony, the Accounts Officer
of the Madras Engineers Regiment is placed on record, he
has stated that the petitioner was working as a Soldier for
a period of 14 years at the Madras Engineer Regiment and
he was expected to superannuate at the age of 54 as an
Honorary Captain, but on account of his amputation he
was made to retire after completion of 15 years of service
on 31.01.2018 but his retirement is a premature
retirement.
15. According to him, the salary of a Lance Naik is
Rs.25,049/-, for Soldier is Rs.23,969/- and for Hawaldar is
Rs.23,292/-. According to him, 15 years of loss of salary
- 12 -
NC: 2024:KHC:46127
MFA No. 3431 of 2013
itself comes to Rs.55,31,220/-. This kind of evidence is
strange and that cannot be considered as if a person
working in the Madras Engineer Regiment as a Lance Naik,
there is no evidence that he was assured of the promotion
to the level of Honorary Captain. The qualification of the
petitioner is not established. Hence, on the date of
accident, the rank of the petitioner was Lance Naik and he
was paid Rs.25,049/-. Post accident he was made to work
as a Soldier under the salary of Rs.23,969/- because of
the amputation, he was continued in the job at the lower
rank and therefore, the petitioner suffered loss of salary
between the Lance Naik and Soldier will be Rs.25,049/-
minus Rs.23,969/- = Rs.1,080/-.
16. The petitioner was compelled to work for a
period of five years on the lower cadre and therefore, loss
of income will be Rs.1,080/- x 12 x 5 years = Rs.64,800/-.
Apart from this, post-retirement, the petitioner is drawing
pension of Rs.7,000/-. Even if his salary is taken as Lance
Naik at Rs.25,049/- minus Rs.7,000/- (pension), loss of
- 13 -
NC: 2024:KHC:46127
MFA No. 3431 of 2013
income will be Rs.18,049/-. The petitioner was retired at
the age of 37 years, the applicable multiplier will be 15.
Though medical evidence speaks of 50% of disability,
Schedule-I of Workmen's Compensation Act contemplates
amputation of thumb, functional disability at 30%. Then
loss of future income will have to be calculated on the date
of retirement for the purpose of calculation of the
multiplier. Multiplier cannot be calculated for the date of
accident as the loss of pay of Rs.64,800/- is assessed.
Then loss of future income will be Rs.18,049/-x 12 x 15 x
30% = Rs.9,74,646/-. If this is added to the loss of pay
for five years at Rs.64,800/-, future loss of income comes
to Rs.10,39,444/-. Thus, total compensation comes to
Rs.13,86,938/- as against Rs.4,78,472/- assessed by the
Tribunal, thereby enhancement of Rs.9,08,466/-. The
Tribunal has considered interest at 6% p.a. and the same
is kept in tact.
17. The argument with reference to the judgment of
the Hon'ble Apex Court in Sarnam Singh's case (supra) is
- 14 -
NC: 2024:KHC:46127
MFA No. 3431 of 2013
considered, in the said case, Gunman lost the lower limb
and thereby the percentage of disability is taken to 80% to
100%. In Sidram's case (supra), a cart puller has suffered
grievous injuries, where functional disability of 100% is
taken. In T.J.Parameshwarappa's case (supra), a lorry
cleaner has sustained the injuries where he has suffered
100% of disability. As the petitioner is drawing pension
post-retirement, the said principle is not applicable to the
facts of this case. Schedule-I of the Workmen's
Compensation Act points out the functional disability of
30% for amputation of thumb of the right hand. Hence,
the compensation assessed is just compensation in the
facts and circumstances of the case.
18. In view of the above discussion, the appeal
merits consideration, in the result, the following:
ORDER
i. The appeal is allowed in part;
ii. The impugned judgment and award is modified;
- 15 -
NC: 2024:KHC:46127
iii. The petitioner would be entitled to enhanced
compensation of Rs.9,08,466/- with interest at
6% per annum from the date of petition till the
date of deposit;
iv. Insurance Company is directed to deposit the
enhanced compensation amount with interest
within eight weeks from the date of receipt of
certified copy of this judgment.
Sd/-
(T.G. SHIVASHANKARE GOWDA)
JUDGE
MKM
Ct-cmu
