Karnataka High Court
Smt. Malathi vs Managing Partner on 18 February, 2025
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MFA No. 6228 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.6228 OF 2021(MV-I)
BETWEEN:
SMT. MALATHI,
W/O RAGHURAM KULAL,
AGED ABOUT 32 YEARS,
R/O AREKALJEDDU,
RATTADI VILLAGE,
KUNDAPURA TALUK-576 201.
...APPELLANT
(BY SRI. NAGARAJA HEGDE, ADVOCATE)
AND:
1. MANAGING PARTNER,
DURGAMBA MOTORS,
NH-66, HANGLURU VILLAGE,
Digitally signed by
AASEEFA KUNDAPURA TALUK-576 201.
PARVEEN
Location: HIGH 2. NEW INDIA ASSURANCE CO. LTD.,
COURT OF
KARNATAKA BRANCH OFFICE:
1ST FLOOR, PUSHPA BUILDING,
MAIN ROAD, KUNDAPURA TALUK-576201
REP. BY ITS
BRANCH MANAGER
...RESPONDENTS
(BY SRI. RAJASHEKAR N., ADVOCATE FOR R1;
SMT. LATA PRASAD, ADVOCATE FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 24.01.2020 PASSED IN
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MFA No. 6228 of 2021
MVC NO. 371/2017 ON THE FILE OF THE ADDITIONAL
DISTRICT JUDGE AND ADDITIONAL MACT, UDUPI, (SITTING AT
KUNDAPURA), KUNDAPURA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
ORAL JUDGMENT
This appeal is the outcome of the order that is
rendered by the Motor Accident Claims Tribunal, Udupi in
MVC No.371/2017 dated 24.01.2020. This is a claimant's
appeal.
2. On the ground that she sustained grievous
injuries in a road traffic accident and thereby became
completely and permanently disabled, the appellant filed a
petition claiming compensation of Rs.10,85,000/- in total.
The Tribunal through the impugned order awarded a sum
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of Rs.1,87,000/- as compensation. Dissatisfied with the
sum thus awarded, the present appeal is filed.
3. Heard Sri.Nagaraja Hegde, learned counsel for
the appellant and Sri.Manjunath.K who represented
Sri.Rajashekar.N, learned counsel on record for
respondent No.1. Also heard Smt.Lata Prasad, learned
counsel for respondent No.2.
4. The matrix of the case as projected by the
appellant before the Tribunal is that on 16.08.2016 while
she was proceeding in a bus bearing registration
No.KA.51.B.3130, the driver of the said bus drove the
same in a rash and negligent manner and ultimately lost
control over the bus due to which the bus toppled and
many inmates of the bus including her sustained injuries.
5. The version of the appellant is also that she
took treatment as inpatient, underwent surgery also. She
was advised to take complete bed rest for a period of 3
months. She was working as staff nurse at SDM Hospital,
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Dharwad. After leave period, she joined the duty and
during the course of attending the duty as staff nurse,
while she was lifting a heavy patient, the implant of
clavicle gave away and therefore, she underwent operation
again. Thus she was unable to attend her duties and
therefore, resigned the job.
6. Arguing the matter, learned counsel for the
appellant submitted that the movements of right shoulder
became restricted due to the injury sustained and
whenever the appellant was using her right hand, she
suffers pain over the clavicle. The disability as assessed by
Pw.2 which is permanent in nature is 27%. The appellant
resigned the job as she was unable to perform the duties
due to the injury sustained. The appellant is required to lift
patients while performing her duties as a nurse but she
was unable to do so and therefore, having no other go she
tendered her resignation. Therefore, she lost job due to
the injury sustained to her right shoulder. However
without appreciating the said fact, the Tribunal awarded
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meager sum as compensation and indeed the Tribunal did
not award any amount as compensation towards loss of
future earnings. Learned counsel further submitted that
the compensation granted under all other heads is also
grossly low. Learned counsel thereby sought for
enhancement of compensation.
7. The submission that is made by the learned
counsel for respondent No.1 is that the insurance policy
stood in force as on the date of accident and therefore, it
is for respondent No.2 to pay the sum that is awarded as
compensation.
8. Learned counsel for respondent No.2 stated
that though the appellant sustained injury to her right
hand, after the surgery, she recovered from illness and
therefore, she was discharged from the hospital. Learned
counsel further submitted that the appellant joined her
duty after complete recovery and she also produced
fitness certificate. Thus there is no loss of future earnings.
Further the appellant who submitted fitness certificate
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while joining the duty cannot claim that she resigned from
job due to the injury sustained. Therefore, the present
appeal is not maintainable.
9. It is not in dispute that the appellant met with
an accident on 16.08.2016 and got admitted into Adarsha
hospital on the same day. Ex.P3 - Wound Certificate
discloses that the appellant sustained fracture of right
clavicle. The contents of Ex.P9 - Disability Certificate
reveals that the appellant was discharged on 19.08.2016
with an advice to take rest for 3 months. There is also a
mention that in April while lifting a heavy patient the
implant gave away and therefore, she had to get operated
again. There is further mention that she was examined
and the examination revealed that there is permanent
disability of 27% in respect of right upper limb. The fact
that the appellant underwent a surgery immediately after
the accident with ORIF and tubular plate fixation is clear
by the contents of Ex.P10 - Discharge summary. As per
the contents of Ex.P11, the appellant was admitted at SDM
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College of Medical Sciences and Hospital, Sattur on
25.04.2017 with complaint over right shoulder. It was
diagnosed that there was non-union of mid shaft clavicle
fracture with implant failure. Therefore, a surgery was
conducted under general anesthesia. Thus the appellant
succeeded in establishing that she underwent 2 surgeries
and both are connected to the injury sustained to the right
clavicle during the course of accident. Learned counsel for
respondent No.2 placed much reliance upon the contents
of Ex.R2 - Medical Certificate which was issued by SDM
College of Medical Sciences and Hospital, Sattur. However,
the contents of Ex.R2 - Medical Certificate reveals a
mention that appellant is unfit to resume her duty. The
contents of Ex.R3 - Medical Certificate does not state in
clear terms whether the appellant is fit to resume her duty
or unfit to do so.
10. Ex.P22 is the resignation letter. Through
Ex.P22, the appellant informed her employer that she
wants to discontinue her job because of her health
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problem as she met with an accident and underwent
surgery. By the contents of Ex.P14 - relieving order it is
clear that the resignation tendered by the appellant was
accepted and she was relieved from her duty with effect
from 21.10.2017. Having produced all the said evidence,
the appellant succeeded in establishing that due to the
injury sustained, she felt difficulty to perform her duties
and therefore, she tendered resignation. However, the
contents of Ex.P9 - Disability Certificate goes to show that
the disability assessed in respect of upper limb of the
appellant is only 27%. Therefore, this Court is not inclined
to accept the version of the appellant that the disability is
required to be taken as 100%. The disability being 27% to
the right upper limb, it comes to 9% in respect of whole
body i.e., 1/3rd of 27%.
11. Learned counsel for the appellant also made a
submission that the salary that was taken by the Tribunal
for assessment of compensation i.e., Rs.19,010/- is unfair.
Learned counsel submitted that the appellant was earning
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Rs.21,010/- p.m. by the date of accident and therefore,
the said figure should have been considered by the
Tribunal. Ex.P19 - 5 Salary slips pertain to the appellant.
For the month of May 2017 as per the contents of Ex.P19,
the appellant was paid Rs.21,010/-. On deducting
Rs.200/- which was paid towards professional tax, the
salary of the appellant per month should be taken as
Rs.20,810/- for the purpose of assessment of
compensation. Therefore, the Tribunal ought to have
considered the salary of the appellant as Rs.20,810/- for
the purpose of assessment of compensation. As per the
contents of Ex.P23 - Service book extract, the appellant
was born on 01.06.1984. The date of accident is
16.08.2016. Therefore, it is clear that the appellant was
aged about 32 years by the date of accident. Thus 50% of
the actual earnings are required to be added towards
future prospects as per the decision of the Hon'ble Apex
Court in the case of National Insurance Company Limited
Vs. Pranay Sethi and Others reported in (2017) 16 SCC
680, as the appellant was on permanent job. Also the
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multiplier which is required to be applied as per the
decision of the Hon'ble Apex Court in the case of Smt.
Sarla Verma and Others Vs. Delhi Transport Corporation
and Another reported in AIR 2009 SC 3104 is '16'. With
these parameters, the loss of future earnings on
calculation is as under:
Monthly income Rs.20,810/-
Annual income Rs.2,49,720/-
On adding 50% towards future Rs.3,74,580/-
prospects
On applying appropriate Rs.59,93,280/-
multiplier 16
Permanent physical disability in Rs.5,39,395/-
respect of whole body being
9%, loss of future earnings is
12. Therefore, the appellant is entitled to a sum of
Rs.5,39,395/- under the head loss of future earnings.
13. The compensation that is granted by the
Tribunal under all other heads is reasonable. Therefore,
this Court considers desirable to allow the appeal in part
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by granting a sum of Rs.5,39,395/- as compensation
under the head loss of future earnings which the Tribunal
failed to award.
14. Therefore, the appeal is disposed of with the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The compensation that is granted by the
Motor Accident Claims Tribunal, Udupi
through orders in MVC No.371/2017 dated
24.01.2020 is enhanced by Rs.5,39,395/-.
This amount will be in addition to the sum
that is awarded by the Tribunal as
compensation.
(iii) The enhanced sum shall carry interest at
the rate of 6% p.a. from the date of
petition till the date of deposit.
(iv) Respondent No.2 is directed to deposit the
enhanced sum within a period of 8(eight)
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weeks from the date of receipt of copy of
this order.
(v) On such deposit, the appellant is permitted
to withdraw the entire amount.
Sd/-
(DR.CHILLAKUR SUMALATHA)
JUDGE
NS
CT:TSM
