Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 63 (KAR)

Virupaxi Basavanneppa Malannavar v. Sunil R Patil

2019-01-07

P.B.BAJANTHRI

body2019
JUDGMENT : P.B. BAJANTHRI, J. 1. These two appeals are by the claimant and the Insurance Company. The appellant-claimant has filed the appeal for enhancement of compensation, whereas the Insurance Company has filed the appeal that the claimant is not entitled for the compensation under the loss of future earning item. 2. Brief facts of the case are that on 24.04.2009, the claimant was proceeding on his Honda Activa bearing No.KA-22/Y-7423 on old P.B. Road towards Central Bus-stand at Belguam for going to Hon'ble High Court, Circuit Bench, Dharwad for his professional work. At about 8:30 a.m. when he came near Shetty Galli Cross, the driver of the TATA India Car bearing No.MH-04/BN- 3684 came from behind, i.e., RTO Office side, in a rash and negligent matter with great speed and dashed to the rear side of the petitioner's vehicle, while overtaking his vehicle. Due to the impact, claimant fell down and sustained injuries. Immediately, the claimant was shifted to Vijaya Hospital, Belguam. The claimant took treatment for three days as an indoor inpatient in the above hospital and underwent surgery for reducing the comminuted fracture of left wrist and right heel. Thereafter, he got discharged himself from the hospital and the Doctors have advised him to come for follow up treatment on regular basis. He had spent Rs.35,000/- for his medical treatment. Even then, the claimant is not completely cured and he has sustained permanent and physical disablement. Claimant requires Rs.10,000/- to Rs.15,000/- for his future medical treatment. 3. Learned counsel for the appellant-claimant contended that he was injured with 28% to the upper limb and 12% to the right lower limb disability. Whereas the Tribunal has taken over all 12% disability despite of PW2 doctor's evidence. It was further contended that he had furnished income tax returns vide Ex.P22, if over all income is taken, his monthly income would be Rs.33,000/-, whereas the Tribunal has taken a sum of Rs.6,500/- per month and moreover the claimant was practicing advocate, who had practice for 27 years. Further, the Tribunal has not assessed the compensation appropriately in all heads like pain and suffering, loss of future earnings and loss of amenities and future unhappiness. 4. Further, the Tribunal has not assessed the compensation appropriately in all heads like pain and suffering, loss of future earnings and loss of amenities and future unhappiness. 4. Learned counsel for the appellant Insurance Company submitted that it is an injury case, question of extending compensation under loss of future earnings does not arise since he had not produced any documents or necessary materials and oral evidence of Doctor so as to seek compensation. Hence, the claimant is not entitled for loss of future earnings. In the claimant's cross-examination, he has admitted that he has not produced any materials and he would be producing it and he had not produced even at later stage. Therefore, the Tribunal has erred in extending the compensation under the head of loss of future earnings to the extent of Rs.1,12,000/- 5. In support of the above contention, the learned counsel has relied on two decisions in the case of Subashchand Jain vs. Ganapathi and another reported in, (2002) 4 KarLJ 433 (DB), wherein at paragraph No.8, it is held as under: "8. It is no doubt true that the total compensation awarded under the heads injuries, pain and sufferings and disability adds up to Rs.92,000/- but we are not inclined to agree with the submissions of the learned Counsel for the respondent that having regard to the nature of the injuries, the sum of Rs.47,000/- is on the higher side. The appellant had suffered extensive injuries to his leg, on the face and it is a fact that he had to undergo hospitalisation for the period of 6 months which indicates that the injuries suffered is not only grievous but also for long. The amount of Rs.20,000/- for pain and sufferings in the circumstances cannot be said to be oh the higher side. The amount of Rs.20,000/- for pain and sufferings in the circumstances cannot be said to be oh the higher side. A sum of Rs.25,000/- towards disability though not indicates as to the loss of future earnings, the Tribunal has awarded this amount in the context of the discussions as to the extent of disability while we are not in agreement to the submissions of the learned Counsel for the appellant that the judgment and award of the Tribunal calls for modification for awarding any amount towards loss of future earning in favour of the appellant on the premise that such extent of disability could have affected his business, we are also not inclined to reduce or take out the amount of Rs.25,000/- under the head disability. The loss in a business if it has to be compensated should have been as a result of the injury and the consequent handicap which directly affects the management of the business. It is also necessary that in the first instance the income from the business should have been proved cogently and then there should be further material to indicate as to what would be the income from that business which has been reduced because of the injury. In the absence of any convincing and cogent material on this aspect either with regard to the exact amount of income or the exact loss of such income we are not inclined to award any amount by applying the principles which are called into aid in determining the loss of future earning in respect of a person who earns income by physical labour and whose bodily injury directly affects the work and earning capacity of such person. The loss attributable due to the physical disability resulting in loss of earning is different from the loss which can be attributed to earning capacity from a business. Any physical disability need not necessarily result in loss of earning from the business and so there is no occasion to apply the same principles. Therefore, we reject the submission of the learned Counsel for the appellant that the appellant was entitled for any amount of compensation under the head "loss of future earning". Further, in the case of United India Insurance Co. Ltd. Vs. D.C. Rajanna and another reported in, (2000) ILR(Kar) 3443, wherein at paragraph No.6, it is held as under: 6. Therefore, we reject the submission of the learned Counsel for the appellant that the appellant was entitled for any amount of compensation under the head "loss of future earning". Further, in the case of United India Insurance Co. Ltd. Vs. D.C. Rajanna and another reported in, (2000) ILR(Kar) 3443, wherein at paragraph No.6, it is held as under: 6. The Claims Tribunal awarded a sum of Rs.25,000/- towards pain and suffering, Rs.10.000/- towards loss of amenity, Rs.25,000/- towards loss of earnings for a period of 3 months during the period of treatment, and Rs.800/- towards conveyance charges, and the same are not in dispute. It is only insofar as it relates to the award of compensation of Rs.1,15,200/- towards loss of future earnings, it is contended that the question of awarding compensation under this head does not arise since there was no any loss of earning as the injured was working as the Deputy Manager of H.M.T. and that there was also no evidence to show that his wages have been reduced or any increments have been stopped or withheld. It is unfortunate that in almost all cases, the Claims Tribunal without applying its mind and appreciating the evidence, blindly award compensation on the heading "Loss of future earnings". It has to be borne in mind, while awarding compensation for future loss of earnings, there must be evidence to show that as a result of injury, the income was reduced or there was loss of earnings or he was removed from service on account of disability or he is incapable of doing any work. In the absence of these factors, the question of awarding any compensation on the heading "Loss of future earnings" does not arise. It is no doubt true that in case of injury, if there is any disability, that the claimant is entitled for compensation on the heading of "disability" and not on the heading of "Loss of future earnings". Particularly, in this case the injured continued in service as Deputy Manager in H.M.T. and there being no future loss of earnings, the Claims Tribunal erred in awarding compensation on the heading "Loss of future earnings". At the most, the Tribunal could have awarded compensation for disability or for loss of amenities of life. Particularly, in this case the injured continued in service as Deputy Manager in H.M.T. and there being no future loss of earnings, the Claims Tribunal erred in awarding compensation on the heading "Loss of future earnings". At the most, the Tribunal could have awarded compensation for disability or for loss of amenities of life. Having regard to the facts and circumstances of the case, the compensation of Rs.1,15,200/- awarded under the heading "Loss of future earnings" is wholly erroneous and not sustainable in law. However, the injured having suffered with fracture of both the bones of the right leg, the petitioner is entitled for a sum of Rs.50,000/- under the heading "disability" and no compensation is awardable under the heading "Loss of future earnings". 6. The claimant's counsel while countering the aforesaid contention of the learned counsel for the Insurance Company submitted that even though the claimant has not produced any documents to claim loss of future earnings. The Hon'ble Apex Court in the following cases considered the loss of future earnings, which are as follows: (i) [R.D.Hattangadi vs. Pest Control (India) Pvt. Ltd., and another, (1995) 1 SCC 551 ] (ii) [Tejinder Singh Gujral vs. Inderjit Singh and another, (2007) ACJ 37] (iii) [Sandeep Khanuja vs. Atul Dande and another, (2017) 3 SCC 351] It was further contended that the claimant was in the lawyer's profession and due to the injuries on upper limb and right lower limb with certain disability as is determined by the Doctor, he cannot lead normal life as he was doing prior to the date of accident, there would be some dis-infirmity in his life. Therefore, he is entitled to loss of future earnings. 7. Heard the learned counsel appearing for the parties. 8. Perusal of the contentions of both the learned counsel appearing for the parties, the question for consideration is as to whether the claimant is entitled to loss of future earnings or not and further the claimant is entitled to enhanced compensation under the heads of pain and suffering, loss of future earnings and loss of amenities and future unhappiness. 9. So far as loss of future earnings issue is concerned, no doubt, the claimant has admitted in his cross-examination that he has not produced any documents relating to loss of future earnings and he would produce the same. 9. So far as loss of future earnings issue is concerned, no doubt, the claimant has admitted in his cross-examination that he has not produced any documents relating to loss of future earnings and he would produce the same. Having regard to the latest decision in the case of Sandeep Khanuja vs. Atul Dande and another reported in, (2017) 3 SCC 351, wherein a Chartered Accountant met with an accident, who had suffered injuries, the Hon'ble Supreme Court considered the loss of income and other heads. Considering the nature of injuries and percentage of disability of 28% to the upper limb and 12% to the right lower limb determined by the Tribunal, even then the claimant's life after the accident would not be the same as prior to the accident. There would be some infirmity both physical and mental in life. Therefore, the claimant is entitled to loss of future earnings compensation. 10. Learned counsel for the appellant Insurance Company, who relied upon the materials that 81 cases were entrusted to the claimant as he was panel advocate for the respondent Insurance Company that would suffice the future income of the claimant. Therefore, he is not entitled to loss of future earnings as he himself has admitted the fact that he has not produced any documents. In the absence of any documents, even the loss of future earnings could be considered having regard to the fact that the claimant had 27 years of practice in the legal profession. Hence, the contention of the appellant Insurance Company is that the claimant is not entitled for the compensation under the head of loss of future earnings is not tenable. The decision cited by him are hereby distinguished with the latest judgment in the case of Sandeep Khanuja vs. Atul Dande and another reported in, (2017) 3 SCC 351. 11. Insofar as enhancement of loss of future earnings is concerned, the claimant has not made out a case with any materials. Therefore, no interference is called for insofar as compensation under the head of loss of future earnings determined by the Tribunal. 12. So far as the compensation under the head pain and suffering, the Tribunal has awarded a sum of Rs.38,000/-, having regard to the injuries suffered by the claimant to the extent of 28% to the upper limb and 12% to the right lower limb disability. 12. So far as the compensation under the head pain and suffering, the Tribunal has awarded a sum of Rs.38,000/-, having regard to the injuries suffered by the claimant to the extent of 28% to the upper limb and 12% to the right lower limb disability. Similarly, the compensation awarded towards loss of amenities and future unhappiness in a sum of Rs.25,000/- would be meager having regard to the nature of injuries, profession and his earnings. Thus, on the head of pain and suffering, loss of amenities and future unhappiness, the claimant is entitled enhanced compensation. Accordingly, a global compensation has been awarded to an extent of Rs.1,00,000/- in addition to the compensation of Rs.2,36,000/- awarded by the Tribunal. The claimant is not entitled to any interest on the enhanced compensation of Rs.1,00,000/- and he is entitled to interest at the rate of 8% p.a. on the compensation awarded by the Tribunal from the date of petition till filing of the appeal. 13. Accordingly, the appeal filed by the Insurance Company in MFA No.23673 of 2011 is hereby rejected and the appeal filed by the claimant in MFA No.23271 of 2011 stands allowed in part. The amount in deposit be transmitted to the Tribunal for the purpose of disbursement in accordance with law.