IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19th DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MS. JUSTICE JYOTI MULIMANI MISCELLANEOUS FIRST APPEAL No.6925 of 2018 (MV) BETWEEN :
GANGADHARA S/O.SHEKHARAPPA AGED ABOUT 24 YEARS AGRICULTURIST AND SHEPARD R/O THALIKATTE VILLAGE HOLALKERE TALUK - 577 526 CHITRADURGA DISTRICT. ... APPELLANT (BY SRI.R.SHASHIDHARA, ADVOCATE) AND:
1. KRISHNAMURTHY.B.R. S/O.RAMANUJAIAH AGE 44 YEARS R/O.NELAMANGALA TOWN BANGALORE RURAL DISTRICT - 562 123.
2. THE DIVISIONAL MANAGER RELIANCE GENERAL INSURANCE CO., LTD., NO.28, EAST WING ROAD, SOUTHERN PORTION 5TH FLOOR, CENTENARY BUILDING, M.G.ROAD BANGALORE - 01.
...RESPONDENTS (BY SRI.H.N.KESHAVA PRASHANTH, ADVOCATE FOR R-2, V/O DATED 19.11.2019, NOTICE TO R-1 DISPENSED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND J.M.F.C. AT HOLALKERE IN MVC 1276/2016 DATED 13.03.2018 AND TO ENHANCE THE COMPENSATION FROM RS.5,20,889/- TO RS.30,00,000/- BY ALLOWING THIS APPEAL.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ORDERS THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT Though this appeal is listed for orders, with the consent of learned counsel on both sides, it is heard finally.
2. The appellant is the injured – claimant who has filed this appeal, being dissatisfied with the quantum of compensation awarded by the Court of the Senior Civil Judge and J.M.F.C. at Holalkere (hereinafter referred to as ‘Tribunal’ for the sake of convenience) in MVC No.1276/2016 by the judgment and award dated 13.03.2018.
3. It is the case of the claimant – appellant that on 20.03.2012 at about 6.00 p.m., when he was standing as a pedestrian on National Highway-13 (NH-13), in front of Government Higher Primary School, Hebbalagere village at Channagiri Taluk, at that time all of a sudden, one Tipper lorry bearing registration No.KA-52/9903 driven by its driver in a rash and negligent manner without observing traffic rules and endangering human life caused the accident resulting in grievous injuries to the claimant all over his body. The police registered a case against the driver of the offending vehicle in Crime No.136/2016. The claimant – Gangadhara was shifted to Government Hospital, Channagiri, for first aid treatment and thereafter, to various other hospitals and clinics as per the advise of Doctor including Metro United Health Care, Shimoga, Nanjappa Hospital, Shimoga and also at Kasturba Hospital, Manipal, where he was an inpatient from 27.03.2016 to 15.04.2016. It is also contended that he was an agriculturist and doing other work prior to the accident and on account of the injuries sustained in the accident, which had resulted in amputation to his left leg above the knee. Hence, he has been completely disabled. Therefore, he sought for compensation of Rs.30,00,000/- together with interest at the rate of 18% per annum by filing a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’).
4. In response to the notices issued by the Tribunal, respondent No.2 appeared through his counsel and filed statement of objections, contending that, satisfaction of the award would be subject to the terms and conditions of the policy, while denying the material averments in the claim petition. It was contended that the claimant himself was negligent. Hence, the insurance company sought for dismissal of the claim petition. Respondent No.1 though served remained absent and was placed ex parte before the Tribunal.
5. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
i. Whether the petitioner proves that the sustained injuries in RTA that occurred on 26.03.2016 at 6.00 p.m. on NH-13, in front of Government Higher Primary School, Hebbalagere village, Channagiri – Holalkere at Channagiri Taluk when he was standing due to rash and negligent driving of the Tippar lorry bearing reg. No.KA-52/9903 by its driver?
ii. Whether the petitioner is entitled for the compensation? If so, what amount and from whom?
iii. What order or award?
6. In order to substantiate his case, claimant examined himself as PW.1 and Dr.Amrath Raj B.K. as PW-2 and produced 20 documents which were marked as Exs.P.1 to P.20, while second respondent did not let-in any evidence, except getting marked the document Ex.R1 – Insurance Policy. On the basis of the said evidence, Tribunal answered issue No.1 in the affirmative and issue No.2 partly in the affirmative and allowed the claim petition in part by awarding compensation of Rs.5,20,889/- with interest at the rate of 6% per annum from the date of petition till deposit. Not being satisfied with the said award, the claimant has preferred this appeal.
7. We have heard the learned counsel for the appellant and learned counsel for the second respondent – Insurer. Notice to first respondent has been dispensed with, as the Insurance Company has admitted its liability to satisfy the award.
8. Appellant’s counsel contended that the Tribunal was not right in awarding a meager compensation on almost all heads. He submitted that the Tribunal computed permanent disability at only 26%, ignoring the fact that the appellant had sustained injury in the accident which had resulted in amputation to his left leg above the knee. He submitted that the award of compensation on the heads of ‘pain and suffering’, ‘loss of amenities’ and incidental charges are very meager and that the appellant was only 22 years of age at the time of the accident and no compensation has been awarded towards ‘loss of marriage prospects’. On account of the amputation of the left leg above the knee, permanent disability must be assessed at 100%, having regard to the fact that the claimant is eking out his livelihood by doing Agricultural work, which is impossible for him to do. He therefore, contended that the compensation on all other heads may be enhanced.
9. Per contra, learned counsel for the Insurance Company submitted that the award of compensation is just and proper and there is no merit in this appeal.
10. Having heard the learned counsel for the respective parties and on perusal of the material on record, the following points would arise for our consideration:
i. Whether the appellant – claimant is entitled for additional compensation?
ii. What order?
11. The fact that the appellant sustained grievous injuries which resulted in amputation to his left leg above the knee due to the road traffic accident which occurred on 20.03.2012 at about 6.00 p.m. when he was standing near Government Higher Primary School, Hebbalagere village, Channagiri Taluk, when at that time, he was hit by a tipper lorry bearing registration No.KA-52/9903, has been established. It has also been established that Crime No.136/2016 was registered against the driver of the said lorry on account of the rash and negligent driving of the said vehicle, consequent upon which, the appellant lost his left leg above the knee, apart from various other injuries sustained by him. The same is evidenced by Ex.P5, which is the true copy of the wound certificate. The fact that there has been amputation of the left leg above the knee has been established by Exs.P7 to P18 which are the medical records. The evidence of PW-1 has been supported by the evidence of PW-2 – Dr.Amrath Raj B.K. with regard to the amputation of the left leg above the knee, which has also been established by the appellant that he was eking out his livelihood by doing agricultural work. The accident occurred on 20.03.2012. In the absence of there being any concrete evidence with regard to the income earned by the claimant, the Tribunal has assessed the notional monthly income at Rs.6,000/-. The claimant was 22 years of age at the time of the accident. Taking into account the medical evidence on record, the Tribunal assessed the whole body disability at only 26% by ignoring the fact that there was a total functional disability caused on account of amputation. Though the Tribunal has referred to the judgment of the Hon’ble Supreme Court in the case of RAJKUMAR v. AJAYKUMAR reported in 2011 (1) SC 243, there has been no proper appreciation and application of the said judgment in the instant case.
12. A reading of the judgment of the Hon’ble Supreme Court in RAJKUMAR’s case, it would clearly indicate that the permanent disability has to be assessed bearing in mind the nature of the injuries caused and avocation of the claimant. In this regard, it would be useful to extract paragraph Nos.8 to 19 of the said judgment. The same read as under:-
“8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person’s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person’s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Disabilities Act”, for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.) 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability.
Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to “hold an enquiry into the claim” for determining the “just compensation”. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the “just compensation”. While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen’s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
17. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non- medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give “ready to use” disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”
13. On a better appreciation of the instant case and bearing in mind the aforesaid dictum of the Hon’ble Supreme Court in RAJKUMAR’s case, in our view, the permanent disability in the instant case to be assessed at 100%, as the claimant is an agriculturist and on account of the amputation of his left leg above the knee, it is impossible for him to eke out his livelihood by doing agricultural work. Hence, the percentage of permanent disability is assessed at 100%. Since the accident occurred on 20.03.2012, the notional income is assessed at Rs.7,000/- per month instead of Rs.6,000/- per month. Consequently, the compensation on the head ‘loss of future earning capacity’ would be Rs.7,000x12x18 = Rs.15,12,000/-.
14. In addition, a sum of Rs.1,00,000/- is awarded towards ‘pain and suffering’, a sum of Rs.2,00,000/- is awarded towards ‘loss of amenities’, a sum of Rs.50,000/- is awarded towards ‘incidental charges’ including ‘food and nourishment’, ‘conveyance and attendant’s charges’ and a sum of Rs.50,000/- is awarded towards ‘loss of marriage prospects, as the claimant was 22 years of age when the accident occurred. Further a sum of Rs.1,13,929/- awarded towards ‘medical expenses’ and a sum of Rs.10,000/- awarded towards ‘future medical expenses’ by the Tribunal are retained. In all, the claimants are entitled for compensation of Rs.20,35,929/-. The reassessed compensation is as follows:
Heads Compensation awarded by this Court (in Rs.) Towards loss of future
Towards future medical expenses 10,000.00 Total 20,35,929.00 15. The said enhanced compensation shall also carry interest at the rate of 6% per annum from the date of claim petition till realization.
16. Out of the total compensation, 80% of the said amount shall be deposited in any Post Office and / or Nationalized Bank deposit for an initial period of 15 years and the claimant shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released in his favour.
17. In the result, the appeal filed by the claimant is allowed-in-part in the aforesaid terms.
18. The Insurance Company to deposit the balance compensation amount within a period of four weeks from the date of receipt of copy of this judgment.
19. Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE VMB ….contd BVNJ & JMJ: MFA No.6925/2018 22.11.2019 ORDER ON ‘BEING SPOKEN TO’ This appeal was disposed of on 19.11.2019. On 21.11.2019, the matter was moved for ‘being spoken to’.
Learned counsel for the appellant submitted that the date of the accident is ‘26.03.2016’ and not ’20.03.2012’ as stated in paragraph No.2 of the impugned judgment. If the accident is of the year 2016, then the notional income must be assessed at Rs.9,500/- atleast instead of Rs.7,000/- assessed by this Court, by considering that the accident occurred in the year 2012. He further submits that accordingly, compensation may be recomputed.
Learned counsel appearing for the Insurance Company very fairly submits that there is a typographical error in the impugned judgment and that indeed the accident occurred on 26.03.2016.
In the circumstances, we reassess the notional income of the injured - claimant at Rs.9,500/- per month instead of Rs.6,000/- assessed by the Tribunal, the same is annualized and ‘18’, being the appropriate multiplier and compensation on the head ‘loss of future earning capacity’ would be Rs.9500X12X18 = Rs.20,52,000/- instead of Rs.15,12,000/-
computed earlier.
Consequently, the total compensation would now be Rs.25,75,929/-. The rest of the judgment remains the same.
Sd/- JUDGE Sd/- JUDGE VMB