Karnataka High Court

Mr Anil Kumar Sharma vs Mr Advaith C Warrier on 23 October, 2024

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                                                              NC: 2024:KHC:42672
                                                            MFA No. 2095 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 23RD DAY OF OCTOBER, 2024

                                               BEFORE
                           THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
                      MISCELLANEOUS FIRST APPEAL NO.2095 OF 2022(MV-I)
                      BETWEEN:

                      MR. ANIL KUMAR SHARMA,
                      S/O DULICHAND SHARMA,
                      AGED ABOUT 62 YEARS,
                      R/AT NO.BACK SIDE 4 NO.
                      RAIL QUARTER, 324, ATIYAR,
                      RAHAMAN ROAD, TITAGARH (M)
                      NORTH 24 PARGANAS,
                      TITAGARAH, WEST BENGAL-700 119.
                                                                    ...APPELLANT
                      (BY SRI. SHRIPAD V. SHASTRI, ADVOCATE (VC))

                      AND:

                      1.    MR. ADVAITH C. WARRIER,
                            S/O T V CHANDRAMOHAN,
                            NO.502/18, AISHWARYA C CROSS,
Digitally signed by         BRINDAVAN LAYOUT, LBS NAGAR,
AASEEFA PARVEEN             BANGALORE-17.
Location: HIGH
COURT OF                    BY ITS MANAGER
KARNATAKA
                      2.    THE ICICI LOMBARD GENERAL
                            INSURANCE CO. LTD.,
                            2ND FLOOR, SVR COMPLEX,
                            NO.89, HOSUR MAIN ROAD,
                            MADIVALA, KORAMANGALA,
                            BENGALURU-560 068.
                                                                 ...RESPONDENTS
                      (BY SRI. B.C. SHIVANNE GOWDA, ADVOCATE FOR R2;
                      V/O. DATED 07.03.2022, NOTICE TO R1 DISPENSED WITH)
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                                            NC: 2024:KHC:42672
                                          MFA No. 2095 of 2022




     THIS MFA FILED U/S.173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED 08.10.2021         PASSED IN
MVC NO.5981/2018 ON THE FILE OF THE I ADDITIONAL SMALL
CAUSES JUDGE, MACT, BENGALURU, (SCCH-11),       PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:        HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA


                        ORAL JUDGMENT

Heard Sri.Shripad V. Shatri, learned counsel for appellant

who appears through video conference. Also heard

Sri.B.C.Shivanne Gowda, learned counsel for respondent No.2

who appears physically before this Court.

2. The claimant is before this Court challenging the

order that is rendered by the Motor Accidents Claims Tribunal,

Bengaluru, in MVC No.5981/2018 dated 08.10.2021. The

appellant in the capacity of injured who sustained injuries in a

road traffic accident filed a petition claiming compensation of

Rs.15,00,000/- in total. The Tribunal through the impugned

order awarded a sum of Rs.1,34,325/- as compensation and

being dissatisfied with the sum granted, the appellant is before

this Court.

NC: 2024:KHC:42672

3. Sri.Shripad V. Shastri, arguing the matter, submits

that the appellant was working as a Chef and was earning

Rs.20,000/- per month by the date of accident. Though income

tax returns were produced and occupation and income of the

appellant were established, the Tribunal did not consider the

evidence produced in that regard. Learned counsel also states

that through the evidence of PW2 it is clearly brought on record

that the disability in respect of the lower limb is 55% and in

respect of whole body is 18%. With such disability, the

appellant is not expected to work as he was doing prior to the

date of accident. But the Tribunal failed to award any sum as

compensation under the head loss of future earnings on

account of disability. Learned counsel states that the

compensation granted under all other heads is also grossly low.

Learned counsel further submits that the accident occurred in

the year 2018 and for the relevant period the Karnataka State

Legal Services Authority is taking the notional income as

Rs.12,500/- per month and atleast the said figure should have

been considered by the Tribunal. Learned counsel ultimately

seeks for enhancement of compensation.

NC: 2024:KHC:42672

4. Disputing the submission thus made by the learned

counsel for the appellant, Sri.B.C.Shivanne Gowda, learned

counsel for respondent No.2 on the other hand contend that,

the Tribunal rightly gave a finding that the income tax returns

cannot be taken into consideration to hold that the appellant

was working as Chef and was earning Rs.20,000/- per month

by the date of accident. Learned counsel also states that the

appellant failed to produce any proof to establish that there was

loss of earnings on account of disability. Learned counsel also

submits that the disability as assessed by PW2 is not on proper

lines. Learned counsel further contends that the compensation

granted by the Tribunal is justifiable and thus the appeal is not

maintainable.

5. Undisputedly, the appellant sustained Type-III B

fracture of both bones of right leg and the said injury was

treated with IMIL nailing. The contents of Ex.P8 discharge

summary establishes the said fact.

6. By all the evidence produced, the appellant also

succeeded in establishing that he took treatment as inpatient

for a period of six days. PW2 gave evidence to the effect that

the disability in respect of whole body is 18%. However, having

NC: 2024:KHC:42672

considered the nature of injuries sustained, this Court is of the

view that such assessment is on higher side. This Court is of

the view that the disability in respect of whole body can be

taken to be 10%.

7. A person with disability cannot be equated to work

in the same capacity and caliber as that of a normal person.

Therefore, there will be reduction in earnings to the extent of

disability. This Court is of the view that there is no requirement

of producing substantive proof to show that there is reduction

in the earning power. That apart, the appellant is not a

Government employee or a permanent employee. Therefore,

this Court is of the view that the earnings of the appellant

would have been reduced to the extent of disability.

8. Having considered the disability to be 10%, this

Court is of the view that to that extent the appellant is entitled

to compensation towards loss of future earnings. Though the

relevant medical record reveals that appellant was aged about

55 years by the date of accident, Sri.Shripad V. Shastri, who

appears for the appellant submits that the appellant was aged

about 58 years by the date of accident. Thus, taking into

consideration the submission thus made, the appropriate

NC: 2024:KHC:42672

multiplier to be applied is '9' as per the decision of the Hon'ble

Apex Court in the case of Sarla Verma and Others v. Delhi

Transport Corporation and Another reported in 2009 SAR

(Civ) 592. Also this Court considers desirable to take notional

income of the appellant as Rs.12,500/- per month as prayed

for. Thus, the compensation which the appellant is entitled to

under the head loss of future earnings on account of permanent

physical disability in respect of whole body is as under:

               Description                Amount in Rs.

           Notional income per month          12,500-00
           Annual income (12,500x12)        1,50,000-00
           Apply appropriate multiplier
                                           13,50,000-00
           '9' (1,50,000 x 9)
           Loss of future earnings,
           permanent          physical
                                            1,35,000-00
           disability in respect of
           whole body being 10%

9. Having considered the nature of injuries sustained,

the treatment taken, this Court is of the view that the appellant

would not have attended his normal pursuits at-least for a

period of three months. Thus, loss of earnings during laid up

period comes to Rs.37,500/- (Rs.12,500/- x 3). However, the

Tribunal awarded a sum of Rs.30,000/- only towards loss of

income during treatment period. Also this Court is of the view

NC: 2024:KHC:42672

that there is requirement to enhance the compensation

marginally under the head pain and suffering and towards food,

extra nourishment and attendant charges. Thus, the justifiable

sum which the appellant is entitled to as compensation is as

under:

Sl. Heads of compensation Amount in Rs. No .

1 Towards pain and suffering 50,000-00 2 Towards medical expenses 06,925-00 3 Towards food, extra nourishment and attendant 10,000-00 charges 4 Conveyance charges 10,000-00 5 Loss of income during laid 37,500-00 up period 6 Loss of future earnings 1,35,000-00 7 Loss of amenities in life 20,000-00 8 Future medical expenses 20,000-00 Total 2,89,425-00

10. The Tribunal through the impugned order awarded a

sum of Rs.1,34,325/- as compensation. However, in the light of

the foregoing discussion, this Court holds that the appellant is

entitled to a sum of Rs.2,89,425/- as compensation. Thus, the

appeal is disposed of with the following: