IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16TH DAY OF AUGUST, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR M.F.A. No.1421/2016 (MV-I) BETWEEN:
HARISHA .P S/O. PUTTASWAMYGOWDA, AGED ABOUT 24 YEARS, R/O. HONGERE VILLAGE, SHANTHIGRAMA HOBLI, HASSAN TALUK, PIN CODE : 573 201. ... APPELLANT (BY SRI PRAKASHA H.C., ADVOCATE FOR SMT. KAVITHA H.C., ADVOCATE) AND:
1. RAVI .M S/O. MUNINANJAPPA, MAJOR, NO.34, MACHOHALLI VILLAGE, BENGALURU NORTH, MAGADI MAIN ROAD, V.N. POST, BENGALURU – 560 091 OWNER OF TEMPO TRAVELER.
2. THE MANAGER IFFCO TOKIO GENERAL INSURANCE CO. LTD., STRATEGIC BUSINESS UNIT, SRI SHANTHI TOWERS, 4TH FLOOR NO.141, 3RD MAIN, EAST OF N.J.E.F. LAYOUT, KASTHURI NAGARA, BENGALURU – 560 043. ... RESPONDENTS (BY SRI E.I. SANMATHI, ADVOCATE FOR R-2; R-1 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.07.2015 PASSED IN MVC NO.658/14 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, ASHOK G.NIJAGANNAVAR J., DELIVERED THE FOLLOWING:-
J U D G M E N T This appeal is preferred by the appellant/claimant seeking enhancement of compensation and for modification of the judgment and award dated 29/07/2015 in MVC.No.658/2014, passed by the Prl. Senior Civil Judge and Addl. MACT at Hassan.
2. It is the case of the appellant that on 27/12/2013, at about 8.00 p.m., when the appellant/injured along with his sister was proceeding on a Pulsar Motorcycle bearing Registration No.KA-05/HG-5529, near Gulsindha Village on bypass road, Channarayapattana, a tempo traveler bearing registration No.KA-02/AB-2106 driven by its driver in a rash and negligent manner, came in a high speed and dashed against the motorcycle of the appellant/claimant. As a result of the said accident, the petitioner and his sister sustained grievous injuries and his sister succumbed to the injuries on the spot and the appellant was shifted to S.S.M. Hospital at Hassan, wherein he took treatment as inpatient for a month and the appellant is still taking treatment as an outpatient. The appellant was hale and healthy before the accident. He is the main bread earner of the family. He is unable to do agricultural work, as such there is loss of income. The accident was due to rash and negligent driving of the driver of the offending vehicle and therefore, the owner and insurer are liable to pay the compensation.
3. On filing of the claim petition by claimant, respondent No.1 has not appeared despite service of notice, as such he is placed ex parte. Respondent No.2/insurance company appeared and filed objections denying the averments made in the claim petition and also the liability to pay the compensation.
4. On the basis of the rival pleadings, learned Claims Tribunal framed the following issues:
(i) Whether the petitioner proves that he sustained injuries in a motor vehicle accident that took place on 17/12/2013 at about 8.00 p.m., on near Gulsindha Village, Bypass road, Channarayapattana, due to rash and negligent driving of Tempo Traveler bearing registration No.KA-02/AB-2106 driven by its driver in an actionable negligence?
(ii) Whether respondent No.2 proves that the driver of the Tempo Traveler bearing registration No.KA-02/AB-2106 and the rider of motorcycle bearing registration No.KA- 05/HG-5529 were not holding valid and effective driving licence at the time of accident?
(iii)Whether the petitioner is entitled to compensation? If so, for what amount and from whom?
(iv)What order or award?
5. The appellant/claimant has got examined himself as PW.2 and thirty one documents were marked as Exs.P-1 to P-31. The official of the respondent/insurance company got examined its official as RW.1. The authorization letter and a copy of the policy were marked as Exs.R-1 and R-2.
6. On appreciating the oral and documentary evidence placed on record, learned Tribunal came to a conclusion that the accident has occurred due to negligent driving by the driver of the tempo traveler and has awarded compensation of Rs.5,80,200/- under various heads along with interest at the rate of 6% per annum from the date of petition till the date of realization. The compensation awarded under various heads by the MACT are detailed below:
1 Medical expenses Rs.1,60,000/-
2 Pain, injuries and sufferings Rs. 25,000/-
3 Loss of future earnings Rs.3,40,200/-
TOTAL Rs.5,80,200/-
7. Being aggrieved by the judgment and award of the Tribunal, the claimant has preferred this appeal contending that the Tribunal ought to have awarded more compensation towards pain and suffering in view of the multiple grievous injuries sustained by the appellant/claimant. The evidence of PW.3/doctor who has issued the disability certificate is not considered. The compensation awarded towards loss of future earnings, loss of amenities and enjoyment in life, conveyance, nourishment and attendant charges, loss of earning during the laid up period, towards future medical expenses and other incidental charges is too meager and disproportionate. The Tribunal ought to have awarded higher rate of interest on the compensation awarded.
8. Heard learned counsel for the appellant and respondent/insurance company and perused the judgment and award passed by the Tribunal. The respondent/insurance company has not preferred any appeal against the judgment and award passed by the Tribunal. The liability regarding payment of compensation is not in dispute. The present appeal is only with regard to enhancement of compensation.
9. The first and the foremost contention of learned counsel for the appellant is that learned Tribunal has failed to consider the oral and documentary evidence namely medical records. As per Schedule I, Part II, Sl.No.2 of the Workmen’s Compensation Act, 1923, the appellant/injured has suffered disability of 80% as he has lost his right forearm. In addition to that, he has sustained comminuted fracture of right leg, according to the medical report, there is a disability of 33%. But the learned Tribunal, without considering the medical evidence, has awarded a meager compensation of Rs.3,40,200/- towards loss of future earnings and Rs.30,000/- towards loss of amenities and enjoyment of life, which is not at all justified. On account of loss of his right hand, the injured victim is unable to discharge his duties as sales manager and he is not even able to carry out his day-today functions. Thus, the compensation awarded towards pain and suffering and the mental agony is on the lower side. On account of loss of right hand, the injured/claimant has lost marriage prospects, but the same has not been considered by the Tribunal.
10. Per contra, learned counsel for the respondent/insurance company strenuously contended that even according to the relevant provisions of the Workmen’s Compensation Act, the loss of right hand has to be considered as the disability of 60% instead of 80%. The employer has not been examined to prove that he has issued the salary slip marked at Ex.P-14 and that he was drawing salary of Rs.19,200/- per month. In the circumstances, his income cannot be considered as Rs.19,200/- per month as there is no cogent evidence to prove the same.
11. Learned counsel further contended that even though the appellant has lost his right hand, he is able to do other jobs. Thus, there is no functional disability to an extent of 90% as claimed by him. Even the compensation awarded by the learned Tribunal on the other heads is just and proper and there is no valid ground to interfere with the said judgment.
12. Having heard the contention urged by the counsel on both sides, the only point that would arise for our consideration is as follows:
(i) Whether the claimant/appellant is entitled to additional compensation?
(ii) What order?
13. In the present case, the main controversy is with regard to quantum of compensation awarded by the learned Tribunal. As far as computation of quantum of compensation by the Tribunal is concerned, we have given our anxious consideration to the evidence placed on record. In the present case, the victim has suffered disability. If a victim of an accident suffered permanent disability, then efforts should always be put to make adequate compensation not only for the physical injury, but also for pain and suffering and the trauma caused due to the accident. Loss of earnings of the victims due to inability to lead a normal life and the amenities, which he would not enjoy due to the disability caused due to accident.
14. In a decision reported in K.Suresh vs. New India Assurance [(2012)12 SCC 274], the Hon’ble Supreme Court has adverted to the earlier judgments in the cases of Ramesh Chandra vs. Randhir Singh [(1990)3 SCC 723] and B.Kothandapani vs. Tamilnadu Sate Transport Corporation Limited [(2011)6 SCC 420] has held that the compensation granted for disability as well as for future loss of earning for the one head relates to impairment of a person’s capacity to earn while the other relates to the pain and suffering and loss of enjoyment of life by the person himself.
15. In our view, the principles laid down in the aforesaid decisions and also in a decision reported in Arvind Kumar Mishra vs. New India Assurance Company Limited and another [(2010)10 SCC 254] and Raj Kumar vs. Ajay Kumar [(2011)1 SCC 343] (Raj Kumar), are to be followed while determining compensation payable to a victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings and victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident. In the present case, the Tribunal has awarded compensation of Rs.25,000/- towards pain, injuries and suffering. The medical records clearly goes to show that the injured has sustained grievous injuries i.e., three comminuted fractures and also lost his right hand. Thus, we are of the opinion that the compensation under the head loss of pain and suffering needs to be enhanced. Hence, Rs.1,50,000/- is awarded towards pain and suffering.
16. It is submitted that the petitioner has spent huge amount towards medical expenses, which is supported by the medical records. The said expenses have not been disputed by the insurance company. Thus, the medical expenses awarded by the Tribunal shall be retained.
17. Learned Tribunal has awarded a sum of Rs.3,40,200/-towards loss of future earnings. In our considered opinion, the said amount is too meager and not at all justified as the petitioner is a young person working as a sales manager who was drawing a salary of Rs.19,200/- per month. Even though the employer has not been examined by the claimant, the salary slip Ex.P-
14 issued by M/s.Shree Nidhi Foods is produced to show that the injured was earning a sum of Rs.19,200/- per month towards salary and the same goes to show that the injured/claimant was working in the said firm. Thus, there is no doubt to disbelieve the avocation of the claimant. Even if oral evidence is not adduced by examining the employer to prove the salary slip, the same cannot be a ground to disbelieve the claim of appellant. Considering the salary which was drawn as per Ex.P-14 and submission of the learned counsel of the appellant as well as respondent/insurance company, we are of the opinion that the injured victim could have earned a monthly salary of not less than Rs.12,000/- per month. Considering the age of the injured victim, the multiplier applicable would be 18. No doubt, the medical records goes to show that there is disability to an extent of 95%, but it is necessary to follow the principles laid down in the decision in the case of Raj Kumar wherein the Hon’ble Apex Court has observed as under:
“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, the 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.”
In view of the above principles, it is necessary to scrutinize the evidence carefully to assess the disability of the injured. As already stated above, the injured victim has lost his right hand, but he is not totally deprived of performing other functions and he can take up other suitable work which he can perform as per his capacity. Considering this, we are of the considered opinion that the functional disability can be taken as 80% only to the whole body.
18. As already stated above, his monthly income is taken at Rs.12,000/-. By making necessary calculation, the loss of future earning is assessed at Rs.20,73,600/- (12,000 x 80 x 12 x 18).
19. It is submitted that the injured victim was a bachelor and because of disability, even he might have lost his marriage prospects. The medical officer has stated that on account of loss of right hand and the fracture of three comminuted fractures, there is disability. In the circumstances, the marriage prospects are very less. Therefore, we are of the opinion that the victim shall have to be compensated by awarding a sum of Rs.50,000/- towards loss of marriage prospects.
20. The Tribunal has awarded a sum of Rs.6,000/- towards conveyance, nourishment and attendant charges. It is placed on record that the injured victim having lost his right hand and having suffered three comminuted fractures. Thus, the appellant might have taken treatment by attending the hospital with the assistance of others for not less than two to three months. Considering this aspect of the matter, we are inclined to award Rs.50,000/- towards conveyance and attendant charges.
21. During the course of argument, learned counsel for the appellant strenuously contended that even though he was in hospital for thirty days, he was compelled to take rest at home for six months. As such, he has been deprived of his regular salary for more than six months. Considering this aspect of the matter, a sum of Rs.72,000/- is awarded towards loss of earnings during the period of treatment and rest. It is submitted that the implants fixed for the fractures caused to the injured victim have to be removed as per the medical advice. Hence, a sum of Rs.20,000/- is awarded towards future medical expenses.
22. It is an admitted fact that the injured victim has lost his right hand and he is unable to do his day- today work like any other ordinary person. The petitioner is depending upon some one to take care of him and he must have been put to mental agony because of the amputation and inability to perform his functions like a normal person, and enjoy the amenities for which we are inclined to grant a sum of Rs.1,00,000/- towards loss of amenities and enjoyment of life. Thus, in all a total compensation of Rs.26,75,600/- would be justified even though the claim was only Rs.25,00,000/- as we have awarded a just compensation.
23. We are conscious of the fact that the compensation claimed is 25,00,000/- only. The Motor Vehicle Act is a beneficial legislation. Hence, it is necessary to award just compensation instead of restricting the claim. Thus, we are inclined to award total compensation of Rs.26,75,600/- with interest at 6% per annum as against the compensation of Rs.5,80,200/- awarded by the Tribunal.
24. For the foregoing reasons, we proceed to pass the following:
O R D E R The appeal is allowed.
The claimant/appellant is entitled for enhanced compensation of Rs.20,95,400/- with interest at 6% per annum from the date of claim petition till the date of realization in addition to the compensation of Rs.5,80,200/- awarded by the Tribunal. Accordingly, the judgment and award dated 29/07/2015, passed in MVC.No.658/2014, by the Prl. Senior Civil Judge and Addl. MACT at Hassan, stands modified.
The insurance company shall deposit the enhanced compensation amount before the Tribunal within four weeks from the date of receipt of certified copy of this judgment.
Out of the enhanced compensation amount, 75% shall be deposited in any post office or nationalized bank for an initial period of ten years and the appellant shall be entitled to receive interest to be accrued on the said deposit periodically. the balance compensation of 25% with proportionate interest shall be released to the appellant after due identification.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE S*