IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.1448/2014 (MV) BETWEEN:
SRI NAGENDRA K.S. S/O SUBRAMANYA K N AGED ABOUT 43 YEARS C/O SATHYANARAYANA D S NO.3, DR. RAJ ROAD PUNYABHEEMI LAYOUT KALKERE, HORAMAVU POST BANGALORE- 560 043.
AND ALSO:
NO.1/828, HOUSING BOARD COLONY, VIJAYANAGAR K R NAGAR, MYSORE DIST.
... APPELLANT (BY SRI.MAHADEVA SWAMY P, ADV.) AND:
1. THE MANAGER UNITED INDIA INSURANCE CO.LTD., KRUSHI BHAVAN 5TH AND 6TH FLOOR NRUPATHUNGA ROAD HUDSON CIRCLE BANGALORE -560 009.
2. K J HONNE GOWDA S/O JAVERE GOWDA KUMBARA KOPPLU PANDAVAPURA TALUK MANDYA DIST-571434.
3. CHIEF HEALTH MEDICAL OFFICER GENERAL HOSPITAL K R NAGAR- 571 602.
4. DIRECTOR, KARNATAKA GOVERNMENT INSURANCE DEPARTMENT MOTOR BRANCH BANGALORE -560 001.
... RESPONDENTS (BY SRI.S KRISHNA KISHORE, ADV. FOR R1 R2 TO R4 –NOTICE D/W V/O DT:08.07.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:31.12.2013 PASSED IN MVC NO.3167/2012 ON THE FILE OF THE CHIEF JUDGE, & MEMBER, PRINCIPAL MACT, COURT OF SMALL CAUSES, BANGALORE, 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 Appellant/claimant is before this Court, not being satisfied with the quantum of compensation awarded under the judgment and award dated 31.12.2013 in MVC No.3167/2012 on the file of the Chief Judge, Court of Small Causes and Motor Accidents Claims Tribunal, Bengaluru (hereinafter referred to as 'the Tribunal' for short).
2. Appellant/claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1989 claiming compensation for the injuries sustained in a road traffic accident that occurred on 02-11-2011. It is stated that when the claimant was traveling in an Ambulance bearing registration No. KA-45/G-04, a tipper lorry bearing registration No.KA-53/775 came in a high speed and in rash and negligent manner and dashed against the Ambulance. Due to the impact, the claimant sustained grievous injuries. Initially, the claimant was treated at Vikram Hospital at Mysore wherein he took treatment as inpatient from 02.11.2011 to 11.11.2011. His right leg was amputated above the knee and he spent huge amount towards medical expenses. The claimant states that he was earning Rs.6,000/- p.m. working as a security guard. Due to amputation of right leg, he is not in a position to carry on his work as security guard. Hence, filed the claim petition seeking compensation.
3. On issuance of summons, respondent No.1/insurance Company filed written statement contending that the driver of the tipper lorry had no valid and effective driving license as on the date of accident, however, the policy was valid. It is also contended that the claim made by the petitioner is exorbitant.
4. In support of his case, the claimant got himself examined as P.W.1, and examined one witness as P.W.2 and also the doctor as P.W.3., apart from marking the documents as Ex.P1 to Ex.P21. Respondent No.1/insurance Company examined the driver of the second respondent as R.W.1 and Assistant Manager of the insurance Company as R.W.2., apart from marking the documents as Ex.R1 to Ex.R3.
5. The Tribunal, based on the materials and on scrutiny of the documents awarded total Compensation of Rs.6,29,648/- to the claimant with interest at 6% p.a. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimant is before this Court seeking enhancement of compensation.
6. Heard the learned counsel for the appellant/claimant and learned counsel for respondent No.1/insurance Company. Perused the material on record including the lower court records.
7. Learned counsel for the appellant would submit that the claimant was working as a security guard and earning Rs.6,000/- p.m. But, due to amputation of right leg above the knee, he is not able to continue with the work of security guard. Hence, the disability has to be considered at 100% for the purpose of awarding compensation. He submits that the Tribunal committed an error in taking only 28% disability though the doctor has opined that the claimant has suffered 85% disability. Further the claimant has suffered lacerated wound on the right cheek and right peri orbital region;
swelling and tenderness on right lower limb. The claimant was inpatient for a period of 9 days and he was aged about 42 years at the time of accident. He further submits that the compensation awarded by the Tribunal under various heads is on the lower side and seeks for enhancement of compensation.
8. Per contra, learned counsel for respondent No.1/ insurance Company submits that the injury suffered by the claimant is scheduled injury and 50% disability is to be taken for the purpose of determining the compensation. Further, he submits that the Compensation awarded by the Tribunal is just and proper which needs no interference by this Court.
9. Having heard the learned counsel for the parties and on perusal of the records, the questions which fall for consideration are:
(i) Whether the Tribunal was justified in taking 28% disability as against the doctor’s evidence at 85%?
(ii) Whether the claimant/appellant would be entitled for enhancement of compensation on other heads?
Answer to the above questions would be in favour of the appellant/claimant for the following reasons:
10. The accident is of the year 2011 involving the Ambulance bearing registration No.KA-45/G-04 and a tipper lorry bearing registration No.KA-53/775 and the accidental injuries suffered by the claimant/appellant are not in dispute. The claimant/appellant is before this Court seeking enhancement of compensation. The grievance of the appellant/claimant is that he has suffered amputation of right leg above the knee. He was working as security guard and earning a sum of Rs.6,000/- p.m., prior to the accident. The doctor/P.W.3 in his evidence has deposed that the claimant has suffered disability to an extent of 85% to the whole body. In his cross-examination, to a suggestion by the Insurance Company that the claimant has not suffered 100% functional disability, the same has been denied by the doctor-
P.W.3. In his cross-examination, he has stated that the claimant/appellant would require another sum of Rs.3,00,000/- for artificial limb. The Hon'ble Supreme Court in a case reported in (2018) 11 SCC 630 in the case of NEW INDIA ASSURANCE COMPANY LIMITED v/s GAJENDRA YADAV AND OTHERS, taking into consideration the Rajkumar v/s Ajaykumar reported in (2011)1 SCC 343 at paragraphs 4, 5 and 6 has held as follows:
“4. In Raj Kumar v. Ajay Kumar, the Court has laid down the principle regarding assessment of future loss of earning due to permanent disability. The same issue was discussed in more detail in the case of a Chartered Accountant in the recent judgment in Sandeep Khanuja v. Atul Dande. In the latter case, this Court has awarded compensation applying the multiplier for the permanent disability to the tune of 70% for the Chartered Accountant. In Raj Kumar's case, this Court has discussed about the functional disability and has held that compensation would vary from case to case depending on how much the person has been affected as far as his earning capacity is concerned.
5. In the case before us, it is in evidence that there is 85% permanent disability as far as left leg is concerned. It is also in evidence that he had been working as a security officer in a reputed Company and from the evidence of Deputy Chief Manager before the Tribunal, it has come out that "prior to accident Gajender was doing duty in our office established at Bahadur Shah Zafar Marg and he was in active job and after his accident when he joined the duty he had been shifted to our office established at Dariya Ganj where he has to do lesser work i.e. sedentary duty in which no physical work is required. The future of employee Gajender has been sealed and he will not be able to get any promotion in future."
6. Having heard the learned counsel on both sides and having regard to the fact that the claimant has, in fact, suffered a serious injury leading to amputation of the left leg below the knee and which has certainly caused a functional disability since he had been in employment as a Security Officer and since according to the Management, his future promotions have been sealed, we are of the view that in the facts of this case, the computation of compensation for the disability is also to be worked out by applying a multiplier. The monthly salary which the claimant was drawing in 2004 was around Rs.14,000/-. If the future prospects in terms of Sarla Verma v. DTC are added, it will be Rs.21,000/- per month. Having regard to the disability suffered by the claimant, we are of the view that without any further deduction, if the total disability factor is taken as 40%, the claimant would be entitled to an amount of Rs. 8,400/- per month towards the loss of future earnings. The age being 37 years, the multiplier 15 has to be applied. Thus, the compensation towards future earnings comes to Rs.15,12,000/- (Rupees fifteen lakhs and twelve thousand).”
11. By following the above decision if the facts and circumstances of the present case is examined, the claimant/ appellant also was working as a security guard and his right leg was amputated above the knee. Therefore, he would not be in a position to carry on the security guard work as he was doing prior to the accident and the amputation would come in his way of functioning as such. Therefore, taking into consideration the evidence of doctor who has opined that the claimant/appellant has suffered 85% disability to the whole body, it would meet the ends of justice if the disability is considered at 70%, for the purpose of determining the compensation under the head loss of earning capacity and the claimant would be entitled to compensation under the said head in a sum of Rs.7,05,600/- (6000x12 x14x70/100).
12. Considering the injuries suffered by the claimant/appellant and that he was inpatient for more than 10 days, the compensation awarded by the Tribunal on various heads is on the lower side. Hence, the claimant is entitled to a sum of Rs.50,000/- as against Rs.18,000/- on the head of pain and suffering. So also, towards future medical expenses, the Tribunal has awarded only a sum of Rs.25,000/- whereas the doctor in his evidence has stated that the claimant would require Rs.3,00,000/- for artificial limb. Taking into consideration the estimation of the doctor, another sum of Rs.2,75,000/- is awarded for artificial limb. The appellant would be entitled for Compensation of Rs.50,000/- as against Rs.1,000/- towards attendant charges since the claimant was inpatient for more than 10 days, so also Rs.15,000/- on the head of travel expenses as against Rs.2,000/- awarded by the Tribunal. The Tribunal has not awarded any Compensation on the head loss of amenities which claimant would be entitled for a sum of Rs.50,000/-. Further the Tribunal has not awarded any Compensation under the head loss of income during the laid up period. Taking into consideration Rs.6,000/- as monthly income of the claimant, he would be entitled for Rs.18,000/- towards three months salary for loss of income during the laid up period. The medical expenses of Rs.3,05,642/- awarded by the Tribunal would remain unaltered. Thus the claimant would be entitled for modified Compensation which is as
Page No.12 is retyped and replaced vide Court order dated 29.08.2019.
13. Accordingly, the appeal is allowed in part. The impugned judgment and award dated 31.12.2013 in MVC No.3167/2012 on the file of the Chief Judge, Court of Small Causes and Motor Accidents Claims Tribunal, Bengaluru is modified and the claimant is entitled to total compensation of Rs.14,44,242/- as against Rs.6,29,648/- awarded by the Tribunal, with interest at the rate of 6% p.a.
Out of the total compensation amount, 50% is directed to be kept in the Fixed Deposit in any nationalized Bank for a period of five years, with liberty to the appellant to withdraw the accrued interest periodically.
Sd/- JUDGE mpk/-* CT:bms Page No.13 is retyped and replaced vide Court order dated 29.08.2019.