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2020 DIGILAW 928 (KAR)

Managing Director, Neksrtc v. Tippanna

2020-06-01

P.KRISHNA BHAT, R.DEVDAS

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JUDGMENT R. Devdas, J. (Oral) - These two Miscellaneous First Appeals arise out of a judgment and award in MVC No.125/2016. While the claimant is before this Court seeking enhancement of compensation, the Managing Director- North East Karnataka State Road Transport Corporation, on whom the liability is fastened, is before this Court challenging the quantum awarded by the Motor Accident Claims Tribunal. 2. For the sake of convenience, the parties will be referred to as the appellant-claimant and the respondent Corporation. 3. The brief facts of the case are that the claimant, on 31.01.2016 at about 1.30 p.m. was proceeding towards his village Gulbal in an autorickshaw bearing Reg.No.KA-33 A 4346 from Hunasagi near the Indian Gas Shop. At that time, a bus belonging to the respondent Corporation bearing Reg.No.KA-32 F-0275 coming from the opposite side, dashed against the autorickshaw and due to the impact, the occupants of the autorickshaw sustained grievous injury. The claimant was taken to Government General Hospital, Hunasagi and was administered first aid and was referred for further treatment. Thereafter, the claimant was admitted at G.S. Kulkarni Hospital, Miraj. It was found that the claimant has suffered fracture and he was treated as an inpatient for two months. On 01.02.2016 the right leg had to be amputated. Thereafter, the claim petition was filed seeking compensation of Rs.76,00,000/-. It was the contention of the claimant that he was working as a Mason and also as an agricultural coolie and was earning Rs.20,000/- per month and due to the accident he is confined to bed and is unable to work and he incurred medical expenses of more than Rs.10,00,000/-. 4. The Tribunal, after considering the evidence placed on record, came to a conclusion that the accident occurred due to the negligence of the driver of the bus belonging to the respondent Corporation. The Tribunal held that the claimant has suffered permanent disability of 85% to the whole body. A notional income of Rs.6,000/- was arrived at and a multiplier of 13 was applied having regard to the age of the claimant as 50 years. With this, the Tribunal awarded Rs.7,95,600/- towards loss of future income on account of permanent disability, Rs.30,000/- towards loss of amenities, Rs.30,000/- towards pain and suffering, Rs.12,000/- towards food and nourishment and Rs.12,000/- towards conveyance charges. Based on the medical bills a sum of Rs.1,33,625/- was awarded towards medical expenses incurred by the claimant. With this, the Tribunal awarded Rs.7,95,600/- towards loss of future income on account of permanent disability, Rs.30,000/- towards loss of amenities, Rs.30,000/- towards pain and suffering, Rs.12,000/- towards food and nourishment and Rs.12,000/- towards conveyance charges. Based on the medical bills a sum of Rs.1,33,625/- was awarded towards medical expenses incurred by the claimant. Totally, a sum of Rs.10,12,000/- was awarded along with interest at the rate of 6% per annum payable from the date of the petition till the date of realisation. 5. Learned counsel for the appellant-claimant seeks enhancement of the compensation on the ground that the notional income taken at Rs.6,000/- per month is very meager and even as per the chart prepared by this Court, for an accident that took place in January, 2016, the notional income should have been taken at Rs.8,750/- per month. It is submitted that the Tribunal has failed to award anything towards the future prospects and no attendant charges have been awarded. Further, it is contended that a paltry sum of Rs.30,000/- has been awarded towards pain and suffering in a case where an amputation had to be undergone by the claimant and a sum of Rs.30,000/- has been granted towards loss of amenities. In this regard, the learned counsel for the appellant-claimant places reliance on a decision of the Apex Court in the case of Syed Sadiq v. Divisional Manager, United India Insurance Company reported in 2014 AIR SCW 724 . 6. Per contra, learned counsel for the respondent-Corporation submits that the Tribunal has erred in taking the percentage of disability at 85%. It is contended that the Schedule I Part II in the Employees Compensation Act, 1923 has also been made applicable while assessing the permanent disability by this court and by the Honble Supreme Court, in cases arising out of motor accident claims. It is submitted that as per Schedule I Part II, for an amputation below the knee, the percentage of loss of earning capacity should be 50%, and therefore the same should have been applied by the Tribunal. 7. Learned counsel for the respondent- Corporation would further submit that only 1/3rd of the loss of future income should have been taken into consideration. It is also contended that the doctor who was examined before the Tribunal was not a treating doctor and therefore his evidence in this regard should not have been accepted by the Tribunal. 7. Learned counsel for the respondent- Corporation would further submit that only 1/3rd of the loss of future income should have been taken into consideration. It is also contended that the doctor who was examined before the Tribunal was not a treating doctor and therefore his evidence in this regard should not have been accepted by the Tribunal. 8. Heard the learned counsels for the appellant-claimant and the respondent-Corporation and perused the memorandum of appeal. 9. The decision cited by the learned counsel for appellant in the case of Syed Sadiq is a case, which is very similar to the one on hand. In that case, the claimant was a vegetable vendor and in an accident he sustained injuries to lower end of right femur and his right leg was amputed. The doctor, in his evidence had opined that the claimant had suffered disability of 24% to upper limb and 85% to the lower limb. The Tribunal had considered the disability to the whole body at 30%. The High court while considering the amputation of the right leg of the claimant determined the disability at 65% without assigning proper reason for coming to such conclusion. 10. Therefore, while assigning reasons for arriving at the disability, it was held that the Tribunal is required to assess the effect of the permanent disability on the actual earning capacity of the injured; and after assessing the loss of earning capacity in terms of percentage of the income, it is to be quantified in terms of money to arrive at the future loss of earning by applying the standard multiplier method used to determine loss of dependency. It was, however, held that in some cases on appreciation of evidence and assessment, the Tribunal may find that the 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, it was held that the Tribunal will adopt the same percentage for determination of said compensation. It was further held that while ascertaining the effect of permanent disability on the actual earning capacity, three steps are required to be taken note of. The Tribunal has to first ascertain what activities the claimant could carry on in spite of permanent disability and what he could not do as a result of permanent disability. It was further held that while ascertaining the effect of permanent disability on the actual earning capacity, three steps are required to be taken note of. The Tribunal has to first ascertain what activities the claimant could carry on in spite of permanent disability and what he could not do as a result of permanent disability. 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 the claimant is totally disabled from earning any kind of livelihood, or whether in spite of permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on or whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities by which he could earn or continue to earn his livelihood. 11. In this background, while applying the said principle to the facts of that case where the claimant was a vegetable vendor, their Lordships held that a vegetable vendor was not only required to sell the vegetables from a particular location but he is also required to procure the vegetables from wholesale market or the farmers and then place the same for selling at a particular place which requires 100% mobility. Even by a conservative approach, it was held that if we presume that the vegetable vending by the claimant involved selling vegetables from one place, the claimant would require assistance for mobility in bringing vegetables to the market which would be extremely difficult for him with an amputed leg. Nevertheless, while taking the overall circumstance of the claimant, it was held that the claimant is still capable of fend for his livelihood once he brought the vegetables to the market place and therefore, the Honble Supreme Court determined the disability at 85% for the purpose of determination of loss of income. 12. Having regard to the decision of the Honble Supreme Court, this court is of the considered opinion that the assessment of the Tribunal in the present case of 85% of permanent disability cannot be said to be unreasonable. The claimant was working as a mason and with the loss of a limb, he is disabled to carry on his work. 13. The claimant was working as a mason and with the loss of a limb, he is disabled to carry on his work. 13. On the question of future prospects which was raised by the learned counsel for appellant-claimant, it is seen in Syed Sadiqs case that reference is made to Santosh Devi v. National Insurance Company Limited reported in (2012) 6 SCC 421 that it is extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Vermas case that where he was self-employed or was on a fixed salary without provision for annual increment etc., the courts will usually take only the actual income at the time of death and a departure from this rule should be made only in rare and exceptional cases involving special circumstance. Considering many other judgments, their Lordships proceeded to hold that a claimant who was self employed and aged about 24 years would be entitled to 50% increment in the future prospects of income based on the principle laid down in Santosh Devis case. However, the constitutional bench of the Honble Supreme Court while considering all these aspects in the case of National Insurance Company Limited v. Pranay Sethi reported in AIR 2017 SC 5157 held that while determining the income of the deceased whether the deceased was self employed or on fixed salary, an addition of 40% of the established income should be the warrant in cases where the deceased was below the age of 40 years. However, where the deceased was aged between 40 to 50 years, an addition of 25% is required to be taken and if the deceased was aged between 50 to 60 years, then 10% has to be added. Having regard to the fact that the appellant-claimant has shown his age in the claim petition as 45 years but in the wound certificate at Ex.P5, the age of the claimant is shown as 50 years, the Tribunal has taken the age of the claimant as 50 years. Having regard to all these aspects, this court is of the considered opinion that there is no harm in adding 15% towards income for arriving at future prospects. 14. This court is not oblivious of the fact that the concept of awarding towards future prospects arose in death cases. Having regard to all these aspects, this court is of the considered opinion that there is no harm in adding 15% towards income for arriving at future prospects. 14. This court is not oblivious of the fact that the concept of awarding towards future prospects arose in death cases. However, their Lordships in Syed Sadiqs case supra have considered this aspect and have proceeded to award a certain percentage towards future prospects of income even in cases of permanent disability. Further, in Pranay Sethis case, their Lordships have considered all the above cases and have given a new formula, which is required to be followed in the present case also. Therefore, towards future prospects, the Tribunal was required to award 15% having regard to the age of the appellant-claimant as 50 years as on the date of the accident. 15. In Syed Sadiqs case, their Lordships have proceeded to award a sum of Rs.60,000/- towards pain suffering, Rs.50,000/- towards loss of amenities, Rs.5,000/- towards future expenses and Rs.25,000/- towards cost of litigation. Having regard to the same, towards pain and suffering, the award shall stand enhanced to Rs.50,000/-, towards loss of amenities a sum of Rs.50,000/- is awarded. A sum of Rs.10,000/- shall stand awarded towards future expenses and a sum of Rs.10,000/- is further awarded towards cost of litigation. 16. As a result, if the notional income is taken at Rs.8,750/- and 15% is added towards future prospects and again 15% is deducted (since 85% is the total disability taken, the notional income will still remain at Rs.8,750/-). The loss of future income is calculated as Rs.8,750 x 15% (8750+1312=10,062) 10,062 x 12 x 13 x 85% = 13,34,221/- Sl. No. Particulars Amount 01 Loss of future income s 13,34,221/- 02 Towards loss of amenities 50,000/- 03 Towards pain & suffering 50,000/- 04 Towards food & nourishment 12,000/- 05 Towards conveyance charges 12,000/- 06 Towards medical expenses 1,33,625/- 07 Towards future expenses 10,000/- 08 Towards cost of litigation 10,000/- Total: Rounded off: 16,11,846/- 16,11,900/- 17. Therefore, the award stands enhanced by a sum of Rs.5,99,900/-. The same shall be paid along with interest at 6% per annum, as awarded by the Tribunal, calculated from the date of petition till the date of realization within a period of six weeks from the date of receipt of certified copy of this order. 18. Therefore, the award stands enhanced by a sum of Rs.5,99,900/-. The same shall be paid along with interest at 6% per annum, as awarded by the Tribunal, calculated from the date of petition till the date of realization within a period of six weeks from the date of receipt of certified copy of this order. 18. Out of the enhanced amount, 50% shall remain in fixed deposit in the name of the appellant-claimant for a period of 03 years in any nationalized or scheduled bank and the appellant-claimant is entitled for release of the remaining 50% of the enhanced amount. No further cost. 19. The award amount and the statutory deposit made by the respondent-Corporation before this court shall stand transferred to the Tribunal forthwith. 20. In the result, MFA No.202086/2017 filed by the respondent-Corporation stands dismissed and MFA No.202018/2017 filed by the appellant-claimant stands partly allowed.