Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 895 (KAR)

K. Shivalinga v. Joaquim Paries

2017-06-05

RATHNAKALA

body2017
JUDGMENT : 1. The judgment and award dated 28.1.2009 passed in M.V.C.No.1026/2002 by the II Additional District Judge, Member, MACT-III, Dakshina Kannada, Mangalore ('the Tribunal' for brevity), is under challenge in both the appeals. While the claimant is seeking to enhance the compensation amount in M.F.A.No.2080/2009, the owner of the vehicle/appellant in M.F.A.No.3662/2009 is challenging the liability to indemnify the injured claimant and also questioning proportionality of compensation as exorbitant. 2. Claim petition under Section 166 of the Motor Vehicles Act was filed by the claimant before the Tribunal claiming compensation in respect of the injury sustained by him in the road traffic accident. His case was, on 22.4.2002 at 4.00 p.m., he was riding his Bajaj Caliber bearing registration No.KA-19/K-2862 and stopped at the signal point. At that time, the respondent/owner came in his motor bike bearing registration No.KA-19/H-3900 from behind in a rash and negligent manner and dashed his vehicle from behind. Due to the impact, the Bajaj Caliber was thrown out of the road and was damaged. The claimant suffered fracture of right elbow and other injuries to his person. 3. The owner contested the claim. His case was, the claimant himself was negligent in moving the Bajaj Caliber backward without seeing the behind vehicle, which resulted in the accident. The claimant himself was rash and negligent in driving his motor cycle, since he was drunk at that time. 4. During trial, three witnesses were examined for the claimant and 32 documents were marked. The owner examined himself as RW-1 and marked three documents. On overall assessment of the material placed on record, the Tribunal awarded compensation of Rs.1,29,164/- with interest @ 6% and costs. 5. Sri.K.Ranjan Kumar, learned Counsel appearing for the claimant/appellant of M.F.A.No.2080/2009 submits, the appellant underwent surgery for the fracture of his right elbow and a plate was inserted with wiring and he has suffered disability of 15% to the right elbow. Pain and suffering is not adequately compensated by the Tribunal, no compensation is awarded in respect of loss of income during laid-up period. He was working as an Operator-cum-Technician at MCF, Panambur and was earning monthly salary of Rs.8,885/- as evinced by his salary certificate. He was hospitalized from 22.4.2002 to 2.5.2002. Again from 27.11.2002 to 7.12.2002. Pain and suffering is not adequately compensated by the Tribunal, no compensation is awarded in respect of loss of income during laid-up period. He was working as an Operator-cum-Technician at MCF, Panambur and was earning monthly salary of Rs.8,885/- as evinced by his salary certificate. He was hospitalized from 22.4.2002 to 2.5.2002. Again from 27.11.2002 to 7.12.2002. During the in-between period of 321 days, he was unable to attend his duty as evinced by the certificate issued by his employer at Ex.P19. He is entitled for loss of income at Rs.92,210/- in respect of the loss of income during laid up period. The future medical expenses is not awarded though there is evidence from the Doctor that he may require to undergo another operation for removal of the plate. No amount is awarded towards attendant, food and nourishment charges. Hence, the impugned judgment and award may be modified by enhancing the compensation amount. 6. In reply, Sri.V.N.Jagadeesh, learned Counsel appearing for the appellant of M.F.A.No.3662/2009/owner of the vehicle submits that, the claimant himself was guilty of negligence because of his intoxication. Presence of alcohol in his blood was proved by him and the judgment of Criminal Court vide its judgment/Exs.D1 to D3. In fact, the claimant's vehicle had not suffered any damages as manifested in the IMV report/Ex.P7. In the criminal case, appellant/owner is acquitted of the charge under Sections 479 and 339 of IPC read with Sections 146 and 198 of Motor Vehicles Act. Even otherwise also, amount of Rs.1,29,164/- awarded is excessive and cannot be sustained. Out of Rs.1,29,164/- awarded, Rs.83,164/- is under the head of 'loss of earning capacity due to disability'. Admittedly, the claimant continued in the same post and there was no loss of earning arising out of fracture of ulna bone. Hence, the judgment and award of the Tribunal deserves to be set aside. 7. In the light of the above rival submissions, perused the lower court records. The sole point that arises for consideration in this appeal is, the appropriate compensation commensurating the injury suffered by the claimant during the accident. 8. Though some evidence is brought on record by the owner that the claimant had consumed alcohol at the time of the accident, same is elaborately dealt by the Tribunal and the additional issue raised in this regard is answered in the negative. 8. Though some evidence is brought on record by the owner that the claimant had consumed alcohol at the time of the accident, same is elaborately dealt by the Tribunal and the additional issue raised in this regard is answered in the negative. The Tribunal on a sound reasoning has brushed aside this fold of defence and interference in the impugned judgment and award in respect of the vicarious liability of the accident is not warranted. 9. As per the medical evidence placed, the claimant had suffered two minor injuries and fracture of right radius and ulna; during surgery, the injured head of the radius was removed and the ulna was wired. The Tribunal has awarded Rs.20,000/- towards pain, injury and suffering; Rs.26,000/- towards medical expenses on the basis of the medical bills and further proceeded to calculate the loss of earning capacity on the basis of his disability at 6% in reference to his whole body and also on his salary at Rs.8,885/- per month. Though the compensation awarded under the first two headings is proper and justified, granting award towards loss of future earning capacity cannot be appreciated. As such, there is admission from the appellant/claimant during his cross-examination that he continued in his job and there is no loss of earnings. 10. The Apex Court in its judgment reported in 2011 ACJ 1 in the matter of Raj Kumar -vs- Ajay Kumar and Another enunciating the principles of assessment in injury cases at para-8 held thus: "8. 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 percent as the permanent disability, will hold that there is 45 percent loss of future earning capacity. 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 percent as the permanent disability, will hold that there is 45 percent 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. 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, 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., 2010 ACJ 2867 (SC) and Yadava Kumar v. Divisional Manager, National Insurance Co. Ltd. - 2010 ACJ 2713 (SC)]". 11. Thus, it is clarified that suffering a permanent injury to any organ of the body need not be a proportionate loss of future income arising out of such permanent injury. It was neither the evidence of the claimant nor the evidence of the Doctor that due to the permanent disability of 15% for the injury suffered to the right elbow, the claimant lost his job or his promotion opportunity was deprived off because of the said injury. He works as an Operator-cum-Technician. He has not shown how the inconvenience suffered by him in lieu of the fracture has come in the way of his performing duty. In that view of the matter, the procedure adopted by the Tribunal to capitalize the compensation is erroneous. In the above referred judgment, the Apex Court categorized the heads under which compensation is awarded thus: "5. He has not shown how the inconvenience suffered by him in lieu of the fracture has come in the way of his performing duty. In that view of the matter, the procedure adopted by the Tribunal to capitalize the compensation is erroneous. In the above referred judgment, the Apex Court categorized the heads under which compensation is awarded thus: "5. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earnings during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. Assessment of pecuniary damages under item (i) and under item (ii) (a) do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv), (v) and (vi) -- involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii) (b). We are concerned with that assessment in this case". 12. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii) (b). We are concerned with that assessment in this case". 12. In that view of the matter, though the claimant is not entitled for compensation proportionate to the percentage of permanent disability suffered by him, he is entitled for loss of earning during laid-up period, loss of amenities arising out of permanent disability and loss of future medical expenses, which factors are not addressed by the Tribunal. Though there is no evidence that the claimant may require further surgery because of wiring done to his ulna bone, it is highly possible at a future the implants may cost him dear. Hence, he is entitled for further medical expenses at Rs.10,000/- without interest. 13. He is claiming loss of income for the entire period of his absence from 22.4.2002 to 7.12.2002 and from 27.11.2002 to 7.12.2002. It is difficult to palate that he was bedridden for the whole of above period because of the accidental injury suffered by him. There is no such evidence either from him or from his Doctor. 14. The Deputy Manager of the claimant's Company has stated during his cross-examination that leave on medical ground will be sanctioned when applied along with medical documents. The probability is since the original medical bills are produced in this case, he had not applied for sanction of medical leave and reimbursement of medical bills. He is entitled for loss of income in respect of period of hospitalization and not for entire period of absence i.e., from 22.4.2002 to 2.5.2002 and again from 27.11.2002 to 7.12.2002 i.e., totally 22 days. The proportionate loss of income would be Rs.6,516/-. He is entitled for proportionate attendant charges at Rs.100/- per day and Rs.10,000/- towards transportation and miscellaneous expenses. Thus, he is entitled for total compensation of Rs.74,716/- as against Rs.1,29,164/- awarded by the Tribunal. 15. His entitlement for compensation is extracted below: 1. Pain and suffering Rs.20,000/- 2. Medical expenses Rs.26,000/- 3. Loss of income during laid-up Period Rs. 6,516/- 4. Attendant charges Rs. 2,200/- 5. Transportation and Miscellaneous expenses Rs.10,000/- 6. Loss of future medical expenses Rs.10,000/- TOTAL Rs.74,716/- 16. 15. His entitlement for compensation is extracted below: 1. Pain and suffering Rs.20,000/- 2. Medical expenses Rs.26,000/- 3. Loss of income during laid-up Period Rs. 6,516/- 4. Attendant charges Rs. 2,200/- 5. Transportation and Miscellaneous expenses Rs.10,000/- 6. Loss of future medical expenses Rs.10,000/- TOTAL Rs.74,716/- 16. Thus, there will be reduction of Rs.54,448/- in the quantum of compensation awarded by the Tribunal. In view of the above discussion, M.F.A.No.2080/2009 filed by the claimant is rejected. M.F.A.No.3662/2009 filed by the owner is partly allowed. The judgment and award dated 28.1.2009 passed in M.V.C.No.1026/2002 by the II Additional District Judge, Member, MACT-III, Dakshina Kannada, Mangalore, is modified. The claimant is entitled for total compensation of Rs.74,716/- with interest @ 6% from the date of petition till realization. However, compensation towards future medical expenses at Rs.10,000/- shall not carry interest. The apportionment ordered by the Tribunal gets proportionately reduced to the extent of reduction made by this Court. The appellant/owner is directed to deposit the amount with interest after deducting the amount deposited, if any, in the Registry, within three weeks from the date of receipt of copy of this judgment.