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2024. KHC-D:5567 MFA No.100381 of 2021 R IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE21T DAY OF MARCH, 2024 BEFORE THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL MISCELLANEOUS FIRST APPEAL No.100381 OF2021(MV-I) BETWEEN: MADHUKUMAR @ MADHU H. R. S/O. RAJAPPA, AGE:
28. YEARS, OCC: AGRICULTURE & COOLIE, NOW NIL, R/O. HOSUR VILLAGE, TQ: SHIKARIPURA, DIST: SHIVAMOGGA, NOW AT C/O. RUDRAPPA, ITAGI, AT AND POST: CHALAGERI, TQ: RANEBENNUR, DIST: HAVERI. …APPELLANT (BY SRI. HARISH S. MAIGUR, ADVOCATE) AND:
1. P. H. MALLIKARJUN S/O. PUJARI HANUMANTHAPPA, AGE:
52. YEARS, OCC: BUSINESS, R/O. WARD NO.4, 4TH CROSS, INDIRA NAGAR, GOMMURU, BELLARY-583104.
2. THE MANAGER, ICICI LOMBARD GENERAL INSURANCE CO.LTD, ABOVE BELLAD HERO HONDA SHOW ROOM, 2ND FLOOR, BANNIGIDA STOP, GOKUL ROAD, HUBLI-580030. …RESPONDENTS (BY SRI. SURESH S. GUNDI, ADV FOR R2; NOTICE TO R1 DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO ENHANCE THE COMPENSATION BY MODIFYING THE JUDGMENT
AND AWARD PASSED IN M.V.C NO.1376/2019, ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND ADITIONAL MACT, RANEBENNUR, DATED0302/2021 BY ALLOWING THIS APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 2 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 JUDGMENT
Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.
2. This appeal is filed by the injured/claimant seeking enhancement of compensation being aggrieved by the judgment and award dated 3.2.2021 passed in MVC.No.1376/2019 by the II Addl. Senior Civil Judge and Addl. MACT, Ranebennur (for short, ‘Tribunal’) 3. Brief facts leading to filing of this appeal are that on 25.09.2019, the appellant was proceeding on a motorcycle bearing registration No.KA-15/W-8784, at that time, one Nissan Car bearing registration No.KA-04/ML-1640 came from opposite direction in a high speed, rash and negligent manner and dashed to the motorcycle, resulted in sustaining grevious injuries to the appellant. It is averred that the appellant was hospitalized initially from 25.09.2019 to 30.10.2019 and his right leg above the knee was amputed, therefore, again he was admitted to Dr.Nanjappa Hospital, Shivamogga from 30.10.2019 to 1.11.2019. It is further averred that during - 3 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 treatment, appellant incurred substantial amount towards medical expenses. It is also averred that due to the injuries sustained in the accident, the appellant suffered disability and is unable to carryout any work, which he used to carryout prior to the accident. Hence, the appellant filed a claim petition seeking compensation.
4. The respondents entered appearance before the Tribunal and opposed the claim petition. The Tribunal after considering the evidence available on record, awarded total compensation of Rs.22,15,600/- along with interest at the rate of 9% per annum from the date of petition till realization. Being aggrieved by the same, the appellant is in appeal seeking enhancement of compensation.
5. Sri.Harish S Maigur, learned counsel appearing for the appellant/claimant submits that the Tribunal has committed a grave error in assessing the disability of the appellant at 70% to the whole body contrary to the evidence available on record ignoring the fact that the appellant’s right leg was amputated above knee. Hence, he seeks to consider the functional disability of the appellant at 100%. He further submits that the - 4 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 appellant is entitled to compensation towards loss of future prospects as he is unable to carryout any agricultural activities, which he used to carryout prior to the accident. Thus, he seeks to allow the appeal.
6. Per contra, Sri.Suresh S.Gundi, learned counsel appearing for respondent/Insurance Company supports the impugned judgment and award of the Tribunal and submits that the Tribunal taking note of the evidence of PW3-doctor, who has rightly assessed disability of the appellant at 70% to the whole body, which does not call for interference. It is submitted that the Tribunal awarded compensation towards future medical expenses, from which he can purchase artificial limb and do the lighter work, hence, his disability cannot be assessed on the higher side. The award of compensation by the Tribunal on the other heads are just and proper, requires no enhancement. Thus, he seeks to dismiss the appeal.
7. I have heard the arguments of the learned counsel appearing for the appellant/claimant and the learned counsel appearing for respondent/Insurance Company. Perused the material available on record.-. 5 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 8. The parties to the proceedings do not dispute that the appellant met with an accident on 25.09.2019 and sustained grievous injuries, which resulted in amputation of his right leg above the knee. It is not in dispute that the driver of the offending car was negligent and caused the accident in question. It is also not in dispute that the said vehicle was insured with respondent/insurer and they are liable to pay compensation. The appellant/claimant in order to prove his claim examined himself as PW2 and one Dr.Manjunath has been examined as PW3. PW3-doctor has deposed before the Tribunal that the appellant has sustained grievous injuries and his right leg was amputed above the knee and he has suffered whole body disability at 85%. However, this Court cannot ignore the fact that the appellant was an agriculturist prior to the accident. In view of the amputation of his right leg above the knee, he cannot carryout his agricultural activities, which he used to carry out prior to the accident.
9. Before adverting to disability of the appellant, it would be useful to refer to the decision of Hon’ble Apex Court in - 6 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 the case of Rajkumar Vs Ajay Kumar & Another1, wherein relevant paragraphs read thus: “11. What requires to be assessed by the Tribunal is the effect of the permanently 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 terns 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.
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 percent, if he is neither 1 (2011) 1 SCC343- 7 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 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.” (Emphasis supplied) 10. In another decision, the Hon’ble Apex Court in the case of Laxman Vs. Oriental Insurance Company Limited2, at paragraph-15 of the judgment has held as under: “15. The ration of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for physical injury and treatment, but also for the pain, suffering and trauma caused due to the 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.” (emphasis supplied) 2 (2011) 10 SCC756- 8 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 11. It is apt and necessary to refer the judgment of Hon’ble Apex Court in the case of Jagdish Vs. Mohan & Others3, wherein at paragraph-14 is observed as under:
14. In making the computation in the present case, the Court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engage in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing- atleast in the facts of this case- can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not law’s doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity. (Emphasis supplied) 12. In a recent decision, the Hon’ble Supreme Court in the case of SARNAM SINGH Vs. SHRIRAM GENERAL INSURANCE CO. LTD. AND ORTHERS4, has held as under:: “9. As to how compensation, in case where permanent disability of an injured affects his functional disability, is to be assessed has been considered by this Court, repeatedly. Reference can be made to the judgment of this Court in Mohan Soni vs. Ram Avtar Tomar And Others. In the aforesaid case the injured 3 (2018) 4 SCC5714 2023 LiveLaw (SC) 498 - 9 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 was working as a cart puller. As a result of the accident, his left leg was amputated. His permanent disability was assessed at 60%. The Tribunal assessed the compensation taking the loss of earning at 50% on the theory that he can still do some other work while sitting. The High Court did not disturb the finding regarding loss of income on account of disability. This Court found that the Tribunal was in error in taking the loss of earning at 50% as the injured was 55 years of age and it may be difficult for him to find a job at that stage. In fact, any physical disability resulting from an accident has to be judged with reference to the nature of the work being performed by the person who suffered disability. The same injury suffered by two different persons may affect them in different ways. Loss of leg by a farmer or a rickshaw puller may be end of the road as far as his earning capacity is concerned. Whereas, in case of the persons engaged in some kind of desk work in office, loss of leg may have lesser effect. This Court enhanced the loss of earning capacity from 50% to 90%.” (Emphasis supplied) 13. Keeping in mind the enunciation of law laid down by the Hon’ble Supreme Court referred supra, this Court is of the considered view that the appellant/injured was an agriculturist prior to the accident and due to the amputation of his leg above the knee, he cannot do any agricultural activities as he was doing prior to the accident. Further, it is to be noted that the appellant is aged about 26 years and due to amputation of his leg, he has lost his future happiness, hope and expectation of life and also he will not be able to enjoy the marrital life. Furthermore, he has also lost his ability to earn as much as he - 10 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 used to earn or could have earned. The normal expectation of life of the appellant is also impaired. The mental and physical loss of the injured cannot be reckoned in terms of money, but there is no other way to compensate the victim except by payment of just compensation. No amount of compensation can restore the physical frame of the appellant and also it is impossible to equate the money with the human sufferings or personal deprivations. Hence, taking note of all these aspects into consideration, this Court is of the considered view that it would be just and appropriate to assess the functional disability of the appellant at 90%, which would meet the ends of justice.
14. It is well settled law that even in cases of permanent physical disablement arising from the motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disability. While awarding compensation, it is important to bear in mind the decreasing money value and also life expectancy of the injured. This Court for the reasons referred supra, holds that the - 11 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 appellant is also entitled to the compensation under the head of loss of future prospects at 40%, taking note of the fact that the appellant was aged about 26 years at the time of the accident and keeping in mind that he has suffered functional disability to an extent of 90% in the accident. Insofar as assessment of income of the appellant/injured at Rs.13,250/- per month and applicable multiplier of 17 are unaltered. Thus, loss of future income due to disability is recomputed as under: Rs.13,250/- (income) + 40% (future prospects) x 12(months) x 17 (multiplier) x 90% (disability) = Rs.34,05,780/- 15. The Tribunal has awarded a sum of Rs.50,000/- under the head of pain and suffering and loss of amenities. This Court taking note of the fact that the appellant’s right leg is amputed and medical evidence available on record clearly indicates that the appellant has suffered pain and suffering and loss of happiness during treatment period, additional sum of Rs.50,000/- is awarded under the aforesaid head. The evidence available on record clearly indicates that the appellant is unmarried and he has deposed before the Tribunal that he has lost his marriage prospects. Hence, a sum of Rs.50,000/- is awarded under the head of loss of marriage prospects. The - 12 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 award of compensation by the Tribunal under the other heads is unaltered. Thus, in all, the claimant shall be entitled to modified compensation under the following heads: HEADS AMOUNT (in Rs.) Medical expenses, transportation, attendant 94,000/- charges, nourishing food etc. Loss of income during laid-up period 79,500/- Loss of future income due to permanent 34,05,780/- disability Future medical expenses 1,00,000/- Pain and suffering & loss of amenities 1,00,000/- Loss of marriage prospects 50,000/- Total 38,29,280/- Thus, the claimant shall be entitled to total compensation of Rs.38,29,280/- as against Rs.22,15,600/- awarded by the learned Tribunal.
16. In the result, this Court proceeds to pass the following: ORDER
a) Appeal stands allowed in part. b) The impugned judgment and award of the Tribunal is modified to an extent that the claimant would be entitled to total - 13 - NC:
2024. KHC-D:5567 MFA No.100381 of 2021 compensation of Rs.38,29,280/- as against Rs.22,15,600/- awarded by the Tribunal. c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment. d) The Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment. e) Apportionment, deposit and disbursement shall be made as per award of the Tribunal. f) Draw modified award accordingly. Sd/- JUDGE JTR Ct-an List No.:
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