IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 PRESENT THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MS.JUSTICE JYOTI MULIMANI M.F.A. NO.8081 OF 2018 (MV-I) C/W M.F.A. NO.8522 OF 2018 (MV-I) IN M.F.A. NO.8081 OF 2018 (MV) BETWEEN:
UNITED INDIA INSURANCE CO LTD TUMKUR BRANCH OFFICE THROUGH ITS REGIONAL OFFICE #18, 5TH & 6TH FLOORS KRISHIBHAVAN, HUDSON CIRCLE BANGALORE-560001 REP BY ITS MANAGER (BY SRI: JANARDHAN REDDY, ADVOCATE) AND 1 . N V SHIVAPRASAD S/O VISHVESHWARAIAH N R AGED ABOUT 28 YEARS R/A NARASANDRA VILLAGE @ POST KUDUR HOBLI ...APPELLANT MAGADI TALUK-572165 RAMANAGARA DISTRICT 2 . N S UMARDARAJ S/O SHEIK MOHAMMED NAGALAPURA @ POST TURVEKERE TALUK TUMKUR DISTRICT-572137 (OWNER OF THE CAR BEARING NO.KA-03-MG-7759) …RESPONDENTS (BY SRI: T C SATHISH KUMAR, ADVOCATE FOR R1; V/O DATED 19.9.2019, NOTICE TO R2 D/W) THIS MFA IS FILED U/S.173(1) OF THE MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 19.05.2018 PASSED IN MVC NO.33/2014 (OLD NO. 63/14) ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, MAGADI, AWARDING COMPENSATION OF RS.35,65,467/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN M.F.A. NO.8522 OF 2018 (MV) BETWEEN:
N V SHIVAPRASAD S/O VISHVESHWARAIAH N.R. HINDU NOW AGED 27 YEARS R/O NARASANDRA VILLAGE AND POST, KUDUR HOBLI, MAGADI TALUK, RAMANGARA DISTRICT KARNATAKA STATE-562120.
...APPELLANT (BY SRI: T.C. SATHISHKUMAR, ADVOCATE) AND 1 . N S UMARDARAJ S/O SHEIK MOHAMMED MUSLIM, MAJOR R/AT NAGALAPURA AT POST, TURVEKERE TALUK-572221 TUMKUR DISTRICT, KARNATAKA STATE.
2 . THE BRANCH MANAGER UNITED INDIA INSURANCE CO. LTD I FLOOR, JYOTHI PROVISION STORE, B.S.ROAD, NEAR POST OFFICE, TURUVEKERE-572221 TUMKUR DISTRICT, KARNATAKA STATE.
…RESPONDENTS (BY SRI: JANARDHAN REDDY, ADVOCATE FOR R2;
V/O DATED 10.12.2019, NOTICE TO R1 D/W) THIS MFA IS FILED U/S.173(1) OF THE MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 19.05.2018 PASSED IN MVC NO.33/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, MAGADI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’s COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
J U D G M E N T Though these appeals are listed for orders on I.A.Nos.1 and 2 of 2019, with consent of the learned counsel on both the sides, they are heard finally.
MFA.No.8081/2018 is filed by the Insurance Company while MFA.No.8522/2018 is filed by the injured claimant. Both are assailing the judgment and award dated 19.05.2018 passed in MVC.No.33/2014 (old No.63/2014) of the Motor Accident Claims Tribunal and Senior Civil Judge at Magadi (hereinafter referred to as the “Tribunal” for the sake of brevity).
2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal.
3. The claimant filed the claim petition under section 166 of the Motor Vehicles Act, 1988 seeking compensation of Rs.75,30,000/- for the injuries sustained by him in the road traffic accident that occurred on 20.11.2013. It is the case of the claimant that he was pursuing II Year M.Com as a student of S.E.A. College, K.R. Puram, Bengaluru. On the fateful day i.e., on 20.11.2013 at about 4.50 p.m., he was riding his motor cycle bearing No.KA.42.Q.4534 from Nelamangala towards his village, at that time, an Indica car bearing registration No.KA.03.MG.7759 came from the opposite direction and dashed to the motorcycle. It is the case of the claimant that the Indica car was being driven by its driver in a rash and negligent manner so as to endanger human life and collided with motorcycle on which the claimant was proceeding. As a result, the claimant sustained multiple fracture injuries and his motorcycle also was damaged. It is the further case of the claimant that he sustained Type 3 compound fracture injuries, dislocation of knee, displaced communited fracture and other injuries. He was admitted to M.S.Ramaiah Harsha Hospital, Nelamangala, wherein he was admitted as an inpatient from 20.11.2013 to 24.11.2013 and he underwent surgery and his left leg above the knee was amputated. Thereafter, he was shifted to M.S.Ramaiah Memorial Hospital, Bengaluru, where he took treatment as an inpatient from 24.11.2013 to 03.12.2013. Subsequently, he was again admitted to the same hospital on 14.12.2013 and took treatment upto 06.01.2014. He thereafter had regular follow-up treatment and that even at the time of filing of the petition, he was under treatment. He has contended that he has spent lakhs of rupees towards his treatment and fixing of artificial limb as he has become permanently disabled on account of the serious injuries sustained in the accident. He could not continue his studies nor attend to his routine work, that he is unable to sit or stand independently and he is dependent on his parents and elder brother as he is totally disabled. He was only 23 years of age at the time of the accident and has lost all hopes in his future as also his marriage prospects have been frustrated. That on account of amputation of his left leg and other injuries, he has to be content with artificial limb and as a result, his future has been in disarray. That Kudur Police registered a case in Cr.No.357/2013 against the driver of the Indica car. Contending that he is entitled to damages on various heads to the extent of Rs.75,30,000/-, he filed the claim petition before the Tribunal.
4. In response to the notices issued by the Tribunal, the first respondent – owner of the Indica car appeared through his counsel and filed his written statement denying the material averments made in the claim petition and sought for dismissal of the same, while admitting that he is the owner of Indica car. The second respondent insurer contended that the claim petition was not maintainable while denying the material averments of the petition. He further contended that if at all the Tribunal is to conclude that there was negligence on the part of the driver of the Indica car, the same would be subject to the terms and conditions of the Insurance policy. Contending that the compensation sought was arbitrary, exorbitant and without any basis, the Insurance Company sought for dismissal of the claim petition.
5. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration.
1. Whether the petitioner proves that on 20.11.2013 at about 4.50 p.m. he was riding his motor cycle bearing Reg.No. KA.42.Q.4534 from Nelamangala towards his village and at that time a Car bearing Reg.No.KA.03.MG.7759 driven by its driver negligently came from opposite direction and dashed to the motor cycle of the petitioner?
2. Whether the petitioner proves that he was studying 2nd year M.Com at SEA college, K.R.Puram, Bangalore on the date of accident and aged about 23 years and because of the accident he cannot marry in future?
3. Whether the petitioner proves that because of the said accident, the petitioner has suffered multiple fracture injuries and spent Rs.10 lakhs towards treatment, conveyance nourishment and attending charges?
4 Whether the petitioner is entitled for total compensation of Rs.75,30,000/- from the respondents?
5 To what order or award?
6. In order to substantiate his case, the claimant examined himself as PW.1 and one Manjunath as PW.2 and Dr.Harshad Mohanlal Shah as PW.3. He produced 35 documents which were marked as Exhibits P1 to P35, while there was no evidence let in on behalf of the respondents.
7. On the basis of the evidence on record, the Tribunal answered issue Nos.1 and 2 in the affirmative, issue Nos.3 and 4 partly in the affirmative and awarded compensation of Rs.35,65,467/- with interest at the rate of 8% per annum from the date of claim petition till realization.
8. The compensation awarded by the Tribunal on various heads is as under:-
9. Not being satisfied with the quantum of compensation awarded by the Tribunal, the claimant has preferred MFA.No.8522/2018 while the Insurance Company has preferred MFA.No.8081/2018 seeking reduction in the compensation.
10. Learned counsel for the Insurance Company contended that the award of Rs.3,00,000/- towards attendant charges for the rest of the life and Rs.6,48,000/- towards disability or loss of earning capacity are exorbitant, arbitrary and excessive amounts awarded by the Tribunal. Same would require a reduction in this appeal by re-assessment of compensation.
11. Per contra, learned counsel for the claimant contended that the award of compensation under the head of disability or loss of earning capacity, towards fixation of artificial limb and change of the same in future, towards incidental charges are all on the lower side. That no compensation has been awarded towards loss of amenities and loss of marriage prospects. He further defended the award of compensation of Rs.3,00,000/- on injuries, pain and suffering, Rs.11,77,467/- towards medical expenses and award on the other heads. Learned counsel for the claimant sought for enhancement of compensation.
12. Having heard learned counsel for the respective parties, the following points would arise for our consideration:
(1) Whether the award of compensation of Rs.35,65,467/- with interest at the rate of 8% per annum would call for enhancement or reduction as contended by the respective appellants?
(2) What Order?
Point No.1:
13. The fact that the claimant was proceeding on his motorcycle bearing No.KA.42.Q.4534 from Nelamangala towards his village on 20.11.2013 at about 4.50 p.m., when at that time, the driver of the Indica car bearing No.KA.03.MG.7759 dashed against the motorcycle by driving the said car in a rash and negligent manner, resulting in grievous injuries to the claimant and consequent amputation of the left leg lower limb has been established by the claimant. It has also been established that the claimant took treatment at M.S.Ramaiah Harsha Hospital, Nelamangala and thereafter, at M.S.Ramaiah Memorial Hospital, Bengaluru, as an inpatient for about thirty-nine days and thereafter took follow-up treatment has also been established. That the claimant was 23 years of age at the time of the accident and he was a student in II Year M.Com in S.E.A. College, K.R.Puram, Bengaluru has also been established. Taking note of the aforesaid facts and also the oral and documentary evidence on record, the Tribunal assessed the whole body disability at 50%.
14. Learned counsel for the appellant/claimant has contended that the said assessment is erroneous. That it ought to have been 100% as the claimant is totally disabled. He is not able to pursue any avocation on account of the amputation of the left lower limb and other fracture injuries. Therefore, the Tribunal ought to have assessed permanent disability at 100% and not 50%. The second argument in that regard is, notional income of the claimant has been assessed at Rs.12,000/- per month which is on the lower side. That the claimant was pursuing II Year M.Com studying at SEA College in Bengaluru. He had a bright future which has now been curtailed and frustrated on account of amputation of his left lower limb. Therefore, the notional income must be assessed over and above Rs.12,000/- per month.
15. These specific arguments of the learned counsel for the claimant have been refuted by the learned counsel for the Insurance Company by contending that the amputation of the left lower limb would not result in total disablement as the claimant can still pursue a desk job or any other avocation which would not have much pressure on the lower limb. He contended that the assessment of 50% whole body disability by the Tribunal is just and proper and which would not call for any modification in this appeal. He also submitted that the claimant was only a student and therefore, assessment of notional income at Rs.12,000/- is on the higher side, it would have to be scaled down.
16. We have considered these arguments in light of the dictum of the Hon’ble Supreme Court in the 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.”
17. By applying the aforesaid dictum, in light of the fact that the claimant was pursuing his M.Com studies which would have ultimately enabled him to take up either a teaching job or any desk job, we have assessed the physical disability on account of amputation of the left lower limb as well as fracture injuries to the arm, in the light of the functional disability and as such, we assess it at 80% and not 50% as assessed by the Tribunal. Further in the instant case, the claimant has also acquired an artificial limb, which we think would enable him to take up desk job or any other job which would not involve much movement. Hence, instead of assessing the whole body disability at 100%, we are assessing it at only 80%. Thus, compensation under the head of “loss of earning capacity” would be Rs.12,000 x 12 x 80 x 18 = Rs.20,73,600/-.
18. On the head of “injury, pain and suffering”, the Tribunal has awarded Rs.3,00,000/- since there was surgery and amputation. However, we find that having regard to the young age of the claimant and multiple injuries resulting in amputation of the left lower limb, Rs,2,00,000/- would meet the ends of justice.
19. As far as medical expenses is concerned, the Tribunal has awarded Rs.11,77,467/-. We think that on re-assessment, the compensation awarded aforesaid is just and proper.
20. Towards “attendant charges, conveyance charges, food and nourishment and other incidental charges”, a sum of Rs.80,000/- is awarded. For “removal of the implants” a sum of Rs.40,000/- has been awarded by the Tribunal which we confirm. Towards “acquiring of artificial limb and for change of the same in future and for other expenses” the Tribunal has awarded Rs.10,20,000/- which we round off to Rs.10,00,000/-.
21. Towards “loss of amenities”, the Tribunal has not awarded any compensation for which we would award Rs.3,00,000/-. Towards “attendant charges for the rest of the life”, a sum of Rs.3,00,000/- is awarded which we think would be unnecessary in view of the fact that the claimant has acquired an artificial limb and we are awarding a sum of Rs.3,00,000/- towards “loss of amenities”.
22. Towards “damage to the motorcycle”, a sum of Rs.10,000/- is awarded.
23. Since the claimant was only 23 years of age and lost his left lower limb above the knee and has sustained other fracture injuries, a sum of Rs.50,000/- is awarded towards “loss of marriage prospects”.
24. Thus the re-assessed compensation on the following heads is as under:-
Sl.
No.
Heads of compensation Amount awarded
Thus, total compensation awarded is Rs.48,61,067/-.
25. It is noted that the Tribunal has awarded interest at the rate of 8% per annum. Learned counsel for the Insurance Company submitted that the same may be scaled down to 6% per annum which was however opposed to by the learned counsel for the claimant. However, we find that award of interest at the rate of 6% per annum is just and proper. Hence, the re-assessed compensation shall carry interest at the rate of 6% per annum instead of 8% per annum.
In the result, the appeal filed by the appellant – claimant is allowed-in-part.
The appeal filed by the Insurance Company is allowed-in-part on the question of rate of interest.
Insurance Company shall deposit the balance compensation amount within a period of four weeks from the date of receipt of a certified copy of this judgment.
The amount in deposit to be transmitted to the concerned Tribunal.
Registry to transmit the original record to the concerned Tribunal forthwith.
Parties to bear their respective costs.
Sd/- JUDGE Sd/- JUDGE Bss.