IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH 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.3595/2013 (MV-I) BETWEEN:
SALMAN B.K.
AGED ABOUT 25 YEARS, S/O. B.K. MAIDINABBA, R/O. 304, HILL DALE, LAXMINDRA NAGAR, KUNJIBETTU POST, UDUPI TALUK. ... APPELLANT (BY SRI PAVANA CHANDRA SHETTY H., ADVOCATE) AND:
1. GITHA BHAT, MAJOR, SURESHA BHAT COMPOUND, NEAR BHAGAVATHI TEMPLE, DONGARKERI, MANGALORE D.K.
2. UNITED INDIA INSURANCE CO. LTD., MANGALORE BRANCH, REP: BY ITS DIVISIONAL OFFICE, JEWEL PLAZA, MARUTHI VEETHIKA, UDUPI, REP: BY ITS MANAGER. ... RESPONDENTS (BY SRI RAVISH BENNI, ADVOCATE FOR R-2;
V/O. DATED 07/09/2015 – NOTICE TO R-1 -DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.12.2012 PASSED IN M.V.C.NO.324/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MEMBER, ADDITIONAL MACT, KUNDAPURA, 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 filed by the claimant challenging the judgment and award apportioning the liability on both injured/claimant and the Insurance Company to an extent of 50% each and for seeking enhancement of compensation.
2. The facts briefly stated are that on 16/01/2010 at about 6 p.m., the appellant - claimant was proceeding on his motor cycle bearing Reg.No.KA-20-U-6709 from Mangalore to Udupi on N.H.17. When he reached a place called Muloor, near Sunni Center, Udupi Taluk, a tanker lorry bearing Reg.No.KA-19-A-6765 came from Udupi side in a rash and negligent manner and dashed the appellant’s motor cycle. As a result, the appellant - claimant sustained multiple and grievous injuries. Immediately he was shifted to KMC Hospital, Manipal. The right leg of the appellant was crushed and he was operated with external fixators. The claimant was under treatment for more than three months. On account of the injuries sustained in the accident, the appellant – claimant has become totally disabled and he has been deprived of his income. With these assertions, the claim petition was filed.
3. On service of notice, the owner of the tanker lorry did not opt to appear before the Court and he was 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 compensation.
4. On the basis of the pleadings, the trial Court has framed the following issues:-
“1. Whether the Petitioner proves that on 16- 01-2010 a Tanker Lorry bearing Reg.No.KA- 19-A-6765 belongs to the 1st respondent driven by his driver came from Udupi side towards Mangalore side in a rash and negligent manner and due to over speed he lost control over the Tanker Lorry and came to the extreme wrong side of the road and dashed against the Motor Cycle bearing Reg.No.KA-20-U-6709 due to impact the petitioner sustained grievous injuries?
2. Whether the 2nd Respondent proves that the Drivers of the both Vehicles have no valid and effective driving licence at the time of the accident?
3. Whether the Petitioner is entitled for compensation? If so, what is the quantum? From whom?
4. What Order or Award?”
5. The appellant - claimant got examined himself as P.W.1 and got marked the documents Exs.P.1 to P.236. The Doctor who treated the claimant was examined as P.W.2. Respondent No.2 has not adduced any evidence but one document produced by the Insurance Company was marked as Ex.R.1.
6. On appreciating the oral and documentary evidence placed on record, the Tribunal came to the conclusion that the accident was due to the contributory negligence of both rider of the motor cycle as well as the driver of the lorry bearing Reg.No.KA.19-A-6765. The Tribunal has awarded compensation of Rs.12,20,500/- under several heads with interest at 6% p.a. from the date of petition till realization and deducted 50% towards contributory negligence of the claimant to the accident . The details of compensation awarded are as under:-
Total : Rs.12,20,500/-
Less 50% contributory negligence : Rs. 6,10,250/-
Awarded Rs.6,10,250/-
Being aggrieved by the judgment and award, the appellant/claimant has preferred the appeal.
7. Learned counsel for appellant/claimant strenuously contended that the Tribunal has failed to consider both oral and documentary evidence in proper perspective and has committed an error in coming to the conclusion that the accident was due to contributory negligence of both rider as well as the driver of the lorry. He further contended that the recitals made in the spot mahazar and oral evidence placed on record goes to show that driver of the lorry has come towards right side and dashed against the motor cycle. Thus, the finding given by the Tribunal holding that the claimant is liable for contributory negligence is not proper. At any rate, the evidence placed on record clearly goes to show that it is only on account of the rash and negligent driving of the driver of the lorry the accident has occurred and the claimant has sustained injuries. Thus, the finding given by the Tribunal regarding fixing the liability only to an extent of 50% on the driver of the lorry needs to be set aside and entire negligence should be saddled on the driver of the lorry.
8. Regarding quantum of compensation, learned counsel for appellant – claimant would contend that the compensation awarded on several heads namely, “pain and suffering, loss of income, loss of earnings, loss of amenities in life, loss of marriage prospects, loss of income during the laid up period, loss of other incidental charges, disfigurement, is too meager and disproportionate.
9. Per contra, learned counsel for the respondent- insurance company submitted that the spot sketch, which was part of the spot mahazar has not been marked while recording the evidence of the petitioner, but the same was produced before the Tribunal along with IMV report which is marked as Ex.R-1. The Tribunal considering the spot mahazar, spot sketch and other relevant evidence has rightly come to the conclusion that the accident has taken place in the middle of the road. The oral evidence placed on record clearly goes to show that P.W.1-claimant (injured) having seen the vehicle at a distance of 100 meters had the opportunity to avoid the accident. The claimant having failed to drive the motorcycle carefully has equally contributed for the accident.
10. Having heard the contentions of the learned counsel on both sides, the points that would arise for our consideration are as follows:
1. Whether the finding recorded by the Tribunal regarding apportionment of liability on the claimant-rider of the motorcycle to an extent of 50% is just and proper?
2. Whether the claimant is entitled for additional compensation?
3. What order?
11. We have given our anxious consideration to the oral and documentary evidence placed on record and the findings given by the Tribunal.
12. In order to prove the contributory negligence by the claimant-rider of the motorcycle, the respondent- insurance company has produced IMV report along with the spot sketch which is marked as Ex.R-1. The contents of Ex.R-1 IMV report and the spot sketch disclose that there was no head-on collision between these two vehicles, but it is the claimant-rider of the motorcycle, who has gone in the middle of the road and has hit the lorry. The spot sketch produced along with IMV report has not been disputed or denied by the claimant-appellant. The contents of the spot mahazar reveals that the width of the road at the accident spot is about 24 feet and another 4 feet mud road was there on either side of the tar road. Thus, the claimant-rider of the motorcycle would have moved on the proper side in order to avoid the accident. Despite having sufficient space on the left side of the road, the claimant-rider of the motorcycle has gone in the middle of the road and thereby he has contributed for the accident.
13. Considering the evidence placed on record, the Tribunal has rightly come to the conclusion that there was a contributory negligence by the claimant to an extent of 50%. On re-appreciation of the evidence, we are of the view that the finding given by the Tribunal that there was contributory negligence by the claimant-rider of the motorcycle and the apportionment of the liability on him to an extent of 50% is proper and justified. Hence, point No.1 is answered accordingly (in the affirmative).
14. During the course of arguments, learned counsel for appellant – claimant strenuously contended that even though the Medical Officer has given physical disability only to an extent of 40%, the claimant has lost his earning capacity because of the functional disability to an extent of 100%. In order to assess the loss of future earnings due to functional disability, it is worth to refer to a decision reported in case of Raj Kumar vs. Ajay Kumar [(2011) 1 SCC 343], wherein it has been held by the Hon’ble Supreme Court 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.”
15. In view of the principles laid down by the Hon’ble Supreme Court regarding ascertainment of permanent disability on actual earning capacity involves three steps. In the present case, the evidence placed on record indicates that the claimant has sustained disability. Even though the claimant has sustained disability to an extent of 40%, he is prevented or restricted from discharging the functions like a mechanic and he could not carry on the same avocation and he is totally deprived of an opportunity of carrying out functions as mechanic, thereby he has lost income. But, at the same time, we have to consider whether he is able to do any other activities with the kind of disability that he has undergone. Considering all these aspects, we re-assess the disability suffered by the claimant at 80% of the functional disability.
16. In the present case, the claimant has produced the salary certificate issued by his employer, which is marked as Ex.P-27. The contents of the said document disclose that the claimant was earning Rs.8,000/- per month, but the petitioner-claimant has not examined the employer. Even though the employer has not been examined, the Court has to ascertain as to what would have been the earnings of the claimant at the relevant point of time. In view of submissions made by the learned counsel for the appellant and learned counsel for the respondent-insurance company, the income of the appellant is considered as Rs.6,000/- per month. Thus, his annual income would be Rs.72,000/- (Rs.6000 X 12). Considering the injuries sustained by the appellant- claimant, we are inclined to hold the disability at 80%. As the claimant-injured was 22 years of age at the time of accident, the multiplier would be 18. Since the functional disability is taken as 80%, the loss of monthly income would be Rs.4,800/- per month. Thus, as per necessary calculation i.e., Rs.4800 X 12 X 18 = Rs.10,36,800/-. The said sum would be the compensation towards future loss of earning capacity.
17. The petitioner has endured lot of pain and suffering on account of three surgeries, because of fractures and injuries. Even according to the submission of learned counsel for appellant, on account of the injuries suffered and also surgeries undergone by the claimant, there is disfiguration and he cannot perform his duties properly as he has undergone surgeries on account of the fractures sustained in the accident. Considering these aspects, we are inclined to award a sum of Rs.2,00,000/- towards “pain and suffering”. He has submitted that injured claimant has taken treatment in KMC Hospital for about three months and considering his monthly salary at Rs.6,000/-, a sum of Rs.72,000/- on the head of “loss of income during the laid up period” would be proper to meet the ends of justice. In respect of “loss of amenities of life” it is necessary to bear in mind that Hon’ble Supreme Court has observed in Raj Kumar vs. Ajay Kumar [(2011) 1 SCC 343], that if the victim of the accident suffers any disability then effort should be made to award compensation not only for injuries, but also for the loss which has suffered as a result of such injury and the victims ability to lead normal life and enjoy the activities which he would have enjoyed like a common man. Accordingly, a sum of Rs.2,00,000/- is awarded towards “loss of amenities in life”.
18. In another decision in K.Suresh vs. New India Assurance Co. Ltd., [(2012) 12 SCC 274], the Court has come to the conclusion that compensation can be granted for disability as well as for loss of future earnings for the first head relates to impairment of capacity while the other relates to the pain and suffering and loss of enjoyment of life by the persons himself.
19. As could be seen from the documents placed on record, especially the medical bills which reveal that the claimant – appellant has incurred medical expenses to an extent of Rs.3,75,000/- which is not disputed by the other side. Thus, the said sum needs to be retained as awarded by the Tribunal. Considering the injuries sustained and six surgeries which the claimant has already undergone, we are of the opinion that the claimant requires further treatment, hence, a sum of Rs.1,00,000/- is awarded towards “future medical expenses”.
20. Considering the expenses incurred towards attendant’s charges, food and extra nourishment, conveyance charges etc., we are inclined to award a sum of Rs.1,50,000/- under the head of “incidental charges”.
21. As could be seen from the photographs produced in this case, it is quite evident that there is a disfiguration of right leg and the claimant is not in a position to perform activities like a normal person. Thus, we are inclined to award compensation of Rs.1,00,000/- towards “disfiguration of leg”.
22. Learned counsel for appellant strenuously contended that compensation awarded towards loss of marriage prospects is too meager and considering the submissions, we are inclined to award Rs.50,000/- towards “loss of marriage prospects”.
23. Thus, the claimant is entitled to total compensation of Rs.22,83,800/- with interest at 6% per
24. For the foregoing reasons, appellant – claimant is entitled to enhancement of compensation of Rs.22,83,800/-. The liability of the Insurance Company would be to an extent of 50% of the enhanced compensation (Rs.11,41,900/-) along with interest at 6% per annum from the date of petition till the date of realization. Accordingly, the judgment and award passed by the Tribunal stands modified.
Out of the of total compensation, (i.e., Rs.11,41,900/-), 75% of the amount shall be kept in the name of appellant-claimant in any Post Office deposit or Nationalized Bank Deposit for a period of ten years. Balance amount shall be released in favour of the appellant after due identification.
25. The Insurance Company shall deposit the enhanced compensation within a period of six weeks from the date of receipt of certified copy of this judgment.
26. Appeal is allowed in part in the aforesaid terms.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE *mvs