IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.3405 OF 2013 (MV) BETWEEN:
SRI.HANUMANTHA RAJU @ RAJU, S/O RAMAKRISHNAIAH, AGED ABOUT 26 YEARS, RESIDING AT G.G.CHENNENAHALLI, THYAMAGONDULU HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT.
(BY SRI. P.SHIVAKUMAR, ADVOCATE) AND:
1. THE REGIONAL MANAGER, THE ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., NO.132, MANGALAYA PUNARPHAV ... APPELLANT BUILDING, 2ND FLOOR, BRIGADE ROAD, BANGALORE – 560 025.
2. SRI.N.A.PALINIAPPAN, S/O ATTHIANNA GOUNDER, NO.107, 4TH CROSS, KALISIPALYAM, BANGALORE – 560 002.
... RESPONDENTS (BY SRI P.B.RAJU, ADVOCATE FOR R1; NOTICE TO R2 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 23.04.2011 PASSED IN MVC NO.5246/2009 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant not being satisfied with the quantum of compensation awarded under the judgment and award dated 23.04.2011 in M.V.C.No.5246/2009 on the file of the MACT, Bengaluru is before this Court praying for enhancement of compensation.
2. Claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained by him in a road traffic accident. It is stated that on 17.04.2009 when the claimant was standing on the left side of the road, lorry bearing No.KA-01-AG-3299 came in rash and negligent manner and dashed against the claimant. Due to which, he fell down and sustained grievous injuries. Immediately, he was shifted to Shirdi Sai Hospital where he was admitted as an inpatient. It is stated that the claimant was working as driver and was earning Rs.8,000/- p.m. He was aged 23 years on the date of the accident.
3. On issuance of notice, respondent No.2 remained absent. Whereas respondent No.1 appeared and filed its written statement admitting the issuance of policy in respect of lorry bearing No.KA-01-AG-3299. Respondent No.1 denied the accident was due to rash and negligent manner of the offending lorry and contended that the accident had occurred solely due to negligence of the claimant who was standing in the middle of the road. The insurer also denied the avocation and earning of the claimant.
4. Claimant examined himself as PW1 and also examined PW2-Doctor, apart from marking documents Exs.P1 to P16. Respondents have not lead any evidence.
5. The Tribunal on appreciating the material on record, awarded total compensation of Rs.7,53,000/- on the following heads:
Pain and Sufferings Rs.1,20,000/- Loss of future earnings Rs.2,43,000/- Future medical expenses Rs.1,00,000/- Disfigurement Rs. 75,000/-
Medical expenses Rs.1,96,210/-
Loss of income during treatment period Attendant, conveyance and other charges Rs. 12,000/- Rs. 7,000/-
While granting the above compensation, the Tribunal assessed the income of the claimant at Rs.4,500/- p.m. and assessed whole body disability at 25%. The claimant not being satisfied with the quantum of compensation awarded is before this Court, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for the respondent-Insurer. Perused the material on record.
7. Learned counsel for the appellant submits that the compensation awarded by the Tribunal is on the lower side and failed to award just compensation. It is his submission that the claimant was working as driver and was earning Rs.8,000/- p.m. Claimant has placed on record Ex.P14, copy of the driving license to prove that the claimant was working as a driver and was possessing licence to drive transport vehicle. He submits that the income assessed by the Tribunal at Rs.4,500/- p.m. is on the lower side. The learned counsel further submits that the Tribunal assessed the whole body disability at 25% which is against the evidence of PW2-Doctor. It is his further submission that the Tribunal failed to assess the functional disability of the claimant. Claimant has suffered amputation of right arm above elbow, as such, the claimant would not in a position to carry out his avocation as driver and he suffers from 100% functional disability. It is also his submission that the Doctor has opined that the claimant suffers disability for right upper limb above elbow at 80% and whole body at 25%. Thus, the learned counsel prays for assessing the functional disability at 100% and to enhance compensation.
8. Per contra, learned counsel for respondent No.2 submits that the quantum of compensation awarded by the Tribunal is just compensation which requires no interference. It is his further submission that even though claimant has placed on record Ex.P14-Driving Licence, he has not placed any record indicating his exact income. In the absence of any material to indicate his income, the Tribunal has assessed the notional income at Rs.4,500/-
p.m which needs no interference. He further submits that the Tribunal has rightly assessed the whole body disability at 25% and taking note of the evidence of PW2-Docor who has deposed that the claimant suffers disability to his right upper limb at 80%. Hence, prays for dismissal of the appeal.
9. On hearing the learned counsels for the parties and on perusal of the material on record, the following points would arise for consideration in the facts and circumstances of the case.
1) Whether the Tribunal is justified in assessing the income of the claimant at Rs.4,500/- per month?
2) Whether in the facts and circumstances of the case, claimant suffers from 100% functional disability as contended by the learned counsel for the appellant?
Answer to the above points are in negative and affirmative respectively for the following reasons.
10. The accident occurred on 17.04.2009 involving lorry bearing No.KA-01-AG-3299 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation by reassessing the income as well as functional disability. Accident is of the year 2009. Claimant states that he was working as driver and was earning Rs.8,000/- per month. Claimant placed on record Ex.P14, copy of driving license. On perusal of Ex.P14, it reveals that the claimant was possessing licence to drive light motor vehicle with effect from 17.09.2008 to 16.09.2011. As on the date of accident, the claimant was possessing driving license to drive light motor vehicles. Thus, the claimant has proved that his avocation was driving but the claimant has not placed on record any material to establish his income that he was earning Rs.8,000/- p.m. In the absence of any material to establish the income, the income will have to be assessed notionally. The Tribunal assessed the notional income of the claimant at Rs.4,500/- p.m. which is on the lower side. This Court and the Lok Adalath while determining the compensation in Motor Vehicles Accident cases would normally take notional income for the accidents of the year 2009 at Rs.5,000/- p.m. In the present case also in the absence of any document to indicate the exact income of the claimant, it would be appropriate to take Rs.5,000/- per month as notional income of the claimant for determination of the compensation.
11. The claimant has placed on record Ex.P7- Wound Certificate which indicates that the claimant had sustained severe crush injury of right elbow with severely comminuted fracture of lower end of humerous and upper end of radius and ulna and forearm hanging by a tag of skin, fracture of right clavicle and haemoperetoneum with tear in the intestines. Ex.P8 and Ex.P9 are the discharge summaries which discloses the treatment taken by the claimant for injuries sustained by him in the road traffic accident. Claimant has undergone surgery and his right arm is amputated above elbow. Ex.P12- photograph establishes the amputation of the claimant right arm above elbow. PW2-Doctor in his evidence has submitted as under:
“3. I further submit that on Clinical and radiological examination the patient had sustained the following injuries:-
- Severly mangled right upper limb at the level of elbow with nonviable and non salvagible right upper limb till lower third of arm - Blunt injury abdomen The above injuries are grievous in nature.
4. I further submit that the patient had undergone surgery:-
a) Above elbow amputation of right upper limb on 17.04.2009.
b) Laparotomy and Iliostomy on 20.04.2009. The patient was discharged on date 04.05.2009 with advice to come for regular follow up.”
12. PW2-Doctor has stated that the claimant suffers disability of right upper limb to an extent of 80% and whole body disability at 25%. PW2 is a treated doctor and is Orthopaedic Surgeon at Shridi Sai Hospital where the claimant took treatment. In his cross-examination, he states that he suggested the claimant for artificial limb. In the instant case, as the claimant has suffered amputation of right arm above elbow, this Court has to assess functional disability with reference to the claimant avocation as driver. Whole body disability stands on a different footing from functional disability. Functional disability has to be assessed with reference to the avocation of a person. In the instant case, the claimant has established that he was a driver and he was possessing license to drive light motor vehicles and amputation of right arm above elbow would not permit him to carry on his avocation as driver. The avocation of driver requires both hands on wheels. Therefore, I am of the view that the claimant has suffered 100% functional disability as driver. Thus, the claimant would be entitled for compensation on the head of functional disability. Taking into consideration 100% functional disability, the claimant would be entitled for the following modified compensation:
Pain and Sufferings Rs. 1,20,000/-
Loss of future earnings (5000x12x18) Rs.10,80,000/-
Future medical expenses Rs. 1,00,000/- Disfigurement Rs. 75,000/-
Medical expenses Rs.1,96,000/-
Loss of income during treatment period Attendant, conveyance and other charges Rs. 15,000/- Rs. 15,000/-
Total Rs.16,01,000/-
Thus, the claimant would be entitled for total compensation of Rs.16,01,000/- with interest at the rate of 6% p.a. as against Rs.7,53,000/- awarded by the Tribunal. Claimant shall keep 50% of the enhanced compensation in a fixed deposit for a period of five years and 50% of the enhanced compensation shall be released to the claimant.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE UN