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Karnataka High Court · body

2023 DIGILAW 689 (KAR)

Ranjiv Singh v. Sheik Mohammed Omar

2023-05-23

C.M.JOSHI

body2023
JUDGMENT 1. MFA No.10275/2012 is preferred by the petitioner and MFA No.8526/2012 is preferred by the Insurance Company against the judgment and award dtd. 3/7/2012 passed in MVC No.6603/2010 by the learned III Additional Senior Civil Judge and Member, MACT, Bangalore. 2. By the said judgment, the Tribunal has partly allowed the claim petition and awarded a sum of Rs.9, 52, 036.00 as compensation together with 8% interest p.a. and directed the Insurance Company to deposit the same. 3. The brief facts of the case are as below: That on 3/3/2010, at about 3.00 a.m., when the petitioner was proceeding in Crane bearing registration No.MH-43-817 as a helper, the driver of the said crane drove the same in a rash and negligent manner near Mallasandra gate, on Mysore road, Bangalore and dashed against the lorry bearing registration No.KA-42-2032. Due to which, the petitioner has sustained grievous injuries and undergone amputation below knee. Consequently, the petitioner had suffered pain and agony and sustained financial loss and the respondents are liable to pay the compensation and prayed to allow the petition. 4. In response to the notice issued by the Tribunal, respondent Nos.1 and 2 have appeared through their respective counsel, but respondent No.1 has not filed written statement, whereas respondent No.2 has filed written statement denying the petition averments and averred that the offending vehicle was not insured with it. Further it is averred that, its liability if any, is subject to proof and validity of all the documents of the offending vehicle and terms and conditions of the policy. Hence, prayed to dismiss the petition. 5. On the basis of the above pleadings, the Tribunal has framed necessary issues for its consideration and after considering the oral evidence of PWs 1 to 3 and RW1 and documentary evidence of Exs.P1 to P15 and Ex.R1 on behalf of both the parties, allowed the petition in part and awarded a sum of Rs.9, 52, 036.00 as compensation under different heads as below: 6. Aggrieved by the said judgment and award, both the petitioner and the Insurance Company are before this Court in appeals seeking appropriate reliefs. 7. Aggrieved by the said judgment and award, both the petitioner and the Insurance Company are before this Court in appeals seeking appropriate reliefs. 7. The petitioner who is in appeal before this Court in MFA No.10275/2012 contends that the Tribunal failed to consider the Ex.P8 wherein, it shows that the appellant had taken treatment from 3/3/2010 to 13/4/2010 and has awarded only a sum of Rs.10, 000.00 towards attendant charges, loss of income nourishment etc., which is very low and contrary to the records. It is contended that the petitioner was aged about 23 years and he has lost his right leg and therefore, considering his avocation that he was a helper in the crane, the functional disability assessed by the Tribunal at 40% is incorrect. The petitioner is aged 23 years and therefore, the compensation awarded towards prosthesis is also improper and incorrect. It is contended that the compensation towards marital prospects is also not considered by the Tribunal. 8. The Insurance company which is in appeal in MFA No.8526/2012 contends that the Tribunal erred in believing the evidence of the petitioner that he was an employee working under the respondent No.1-owner of the crane and deputed to duty in the crane as a helper. Such a contention is not proved since the owner had not entered the witness box. It is contended that there is no evidence on record that petitioner was a helper in the crane and as such, the fastening of the liability on the insurance company is not sustainable under law. It is contended that the petitioner was a gratuitous passenger on the crane and the petition against the insurance company should have been dismissed. 9. Respondent Nos.1 and 2 have appeared in pursuance to the notice issued by this Court in MFA No.10275/2012 and respondent Nos. 1 and 2 appeared through their respective counsel in MFA No.8526/2018 and Tribunal records have been secured. 10. I have heard Sri Deepak J., learned counsel appearing for the petitioner and Sri C.R. Ravishankar, learned counsel appearing for the respondent Insurance Company. 11. The learned counsel appearing for the petitioner would submit that the Tribunal erred in awarding the meager compensation and failed to assess the income and the functional disability of the petitioner. 10. I have heard Sri Deepak J., learned counsel appearing for the petitioner and Sri C.R. Ravishankar, learned counsel appearing for the respondent Insurance Company. 11. The learned counsel appearing for the petitioner would submit that the Tribunal erred in awarding the meager compensation and failed to assess the income and the functional disability of the petitioner. It is contended that the amputation of the right leg below the knee has resulted in complete disability of the petitioner and therefore, has argued on the lines as mentioned in the petition. 12. Learned counsel for the petitioner has placed reliance on the decision in the case of Rajkumar vs. Ajay Kumar and another, 2011 (1) SCC 343 . wherein, it was held that "it is not the physical disability which is to be considered, but it is the functional disability which should be considered by the Tribunal". 13. Further, he relied on the decision in the case of Pappu Deo Yadav Vs. Naresh Kumar and others, AIR 2020 SC 4424 . and submits that, the disability on account of amputation of the right hand was assessed at 65% and future prospects of the income was also considered by the Apex Court. 14. Per contra, Sri. C.R. Ravishankar, learned counsel appearing for the Insurance company contended that the Tribunal has failed to note that the petitioner was a gratuitous passenger on the crane. He contends that there was no 'seat' for a passenger in the crane and therefore, when there is no provision for a seat, the petitioner could not have been a passenger. He contends that the respondent No.1 has not filed any statement and there is no material to show that the injured was an employee under respondent No.1. He further contends that the petitioner should have made a claim under the Workmen's Compensation Act, if at all, if he is an employee. Hence, he sought for dismissal of the petition as against the insurance company. 15. Learned counsel appearing for the respondent No.1, owner, submitted that the Tribunal in para 15 and 17 has sufficiently considered the contentions of the insurance company. It is submitted that a special equipment like crane can only be run by two people and hence, helper is essential. It is submitted that he had issued ID card to the petitioner, but it was not marked before the Tribunal. 16. It is submitted that a special equipment like crane can only be run by two people and hence, helper is essential. It is submitted that he had issued ID card to the petitioner, but it was not marked before the Tribunal. 16. So far as the contention of the insurance company in MFA No.8526/2012 is concerned, the Tribunal notices that all the investigation papers of the accident by the police "disprove" that the petitioner was traveling in the offending crane as a helper. The word "disprove" used by the Tribunal in para 15 appears to be an error on the face of the record. The statement of the petitioner before the police as may be found along with Ex.P1 (which is not separately marked by the Tribunal) show that the petitioner was working in Simplex Company and he and another Naveen Yadav were working on the said crane. They were going towards Kumbalagodu as per the directions of the Supervisor. The accident occurred when the driver of the crane did not notice the road hump and the crane dashed against the Tipper, the driver of which lodged a complaint to the police. 17. The complaint categorically mentions that two persons who were sitting in the crane had sustained bleeding injuries and they were shifted to BGS hospital. It is evident that petitioner was traveling in the crane and he was an employee of the owner of the crane i.e. respondent No.1. It is also evident that the respondent No.1 had rented the crane to the said Symplex Company. Under these circumstances, it cannot be said that petitioner was not the helper in the crane. He was very much on the crane at the time of the accident in his capacity as a helper and acting on the advise of the Supervisor. The Tribunal further notes that the driver of the crane has been chargesheeted and the CWs 2 and 3 in the chargesheet, one of whom is the petitioner herein, were injured in the accident. It has also observed that the chargesheet simply mentions that they were traveling, but it do not clarify as to whether the petitioner is a 'cleaner' or 'helper'. Counsel for the insurance company contended that only cleaner is covered under the policy but not the helper. It has also observed that the chargesheet simply mentions that they were traveling, but it do not clarify as to whether the petitioner is a 'cleaner' or 'helper'. Counsel for the insurance company contended that only cleaner is covered under the policy but not the helper. The Tribunal noted that cleaner or helper is not relevant, but the policy covers the risk of 'one plus one' which includes the driver. I do not find any reason to differ with the conclusions reached by the Tribunal. The policy at Ex.R1 do not mention either the cleaner or the helper. It says that the seating capacity is one plus one and it includes the driver. Therefore, it is not in the mouth of the insurance company to say that it was only the cleaner who is covered but not the helper. Obviously, the other injured has not filed any claim petition. Therefore, no fault can be found with the observation made by the Tribunal. When the policy clearly mentions that driver plus one is covered, definitely, the petitioner is covered under the policy. 18. The second contention of the learned counsel appearing for the insurance company is, the petitioner should have filed the petition under the provisions of the Workmen's Compensation Act . It is relevant to note that the petitioner is at liberty to either to approach under the provisions of the MV Act or under the provisions of the Workmen's Compensation Act . When the petitioner has chosen to file this petition under the provisions M.V. Act, no fault can be found regarding the same. 19. Therefore, the contentions raised by the insurance company are not sustainable under law. Consequently, the appeal MFA No.8526/2012 filed by the insurance company is bereft of merits. 20. Sofar as MFA No.10275/2012 is concerned, the Tribunal considers the petitioner to be the helper and takes the notional income of the petitioner at Rs.150.00 per day and at Rs.4, 500.00 per month. As per the norms adopted by the Karnataka State Legal Services Authority for settlement of disputes in Lok Adalaths, the income of the deceased at the relevant point of time should have been taken at Rs.5, 500.00 per month. The petitioner has suffered amputation of the right leg and as such, the question is, whether future prospects is to be added to his income?. The petitioner has suffered amputation of the right leg and as such, the question is, whether future prospects is to be added to his income?. Again, by relying on the decision in Pappu Deo Yadav's case, wherein it is held that when the disability caused is to a greater extent, the loss of future prospects is also to be considered by the Courts. Hence, the petitioner being labourer, aged 23 years, would be unfit to do such similar manual works in future. Therefore, 40% of the income has to be added to the income, i.e., 5, 500/- x 40% = 2, 200/-. Hence, his effective income is held at Rs.7, 700.00 per month. 21. The Tribunal relies on the evidence of PW2 who states that there is 40% whole body disability. It is evident that the Tribunal did not assess the functional disability of the petitioner who suffered the amputation of right leg. It is pertinent to note that the decision in Rajkumar Vs. Ajay Kumar's case explains the reason as to why the functional disability is different than the physical disability assessed by the Doctor. By applying the ratio laid down by the Apex Court in Rajkumar's case, it is the functional disability which matters in order to assess the future loss of income. It is worth to note that the petitioner was a helper and therefore, the functional disability would be more than the physical disability. Considering the fact that the petitioner was aged about 23 years as per the petition and the medical records and that the petitioner can adapt himself to any other avocation. Such adaptation to a new avocation would be difficult as the age advances. The decision in Pappu Deo Yadav's case chronicles various other decisions and follows the principles laid down in Rajkumar's case. It is evident that translating a physical disability into a functional disability with reference to the avocation of a person would be an abstract calculation. The Apex Court in para 20 of the judgment holds as below: "The assessment of loss of future earnings is explained below with reference to the following illustrations: Illustration 'A': The injured, a workman, was aged 30 years and earning Rs.3000.00 per month at the time of accident. The Apex Court in para 20 of the judgment holds as below: "The assessment of loss of future earnings is explained below with reference to the following illustrations: Illustration 'A': The injured, a workman, was aged 30 years and earning Rs.3000.00 per month at the time of accident. As per Doctor's evidence, the permanent disability of the limb as a consequence of the injury was 60% and the consequential permanent disability to the person was quantified at 30%. The loss of earning capacity is however assessed by the Tribunal as 15% on the basis of evidence, because the claimant is continued in employment, but in a lower grade. Calculation of compensation will be as follows: a) Annual income before the accident : Rs.36, 000.00. b) Loss of future earning per annum (15% of the prior annual income) : Rs.5, 400.00. c) Multiplier applicable with reference to age : 17 d) Loss of future earnings:(5400 x 17): Rs.91, 800.00" 22. Considering the above aspects, it would be proper to hold that the petitioner had sustained functional disability of 60%. Thus, the compensation awarded by the Tribunal under the head of 'loss of amenities in life', is to be termed as 'loss of future income' and is calculated as Rs.7700.00 x 12 x 18 x 60%= 9, 97, 920/- 23. The Tribunal has awarded a sum of Rs.80, 000.00 under the head of pain and sufferings and Rs.12, 000.00 towards rest, nourishment etc., which need no enhancement. 24. The Tribunal has not separately awarded any compensation under the head of 'loss of income during laid up period'. In the considered opinion of this Court, it would be proper to hold that the petitioner was unable to resume his work for a period of eight months. Hence, the petitioner is entitled for Rs.5, 500.00 x 8 = 44, 000/- under the said head. 25. By following the principles laid down in Rajkumar's case, a sum of Rs.10, 000.00 granted under the head of inconvenience is treated as 'loss of amenities in life' and the same is enhanced to Rs.20, 000.00. 26. The Tribunal has awarded a sum of Rs.1, 56, 236.00 towards medical expenses based on the medical bills, Rs.5, 000.00 towards conveyance and Rs.3, 00, 000.00 towards artificial limb and below knee prosthesis, needs no enhancement. Thus, the petitioner is entitled for modified compensation as below: 27. 26. The Tribunal has awarded a sum of Rs.1, 56, 236.00 towards medical expenses based on the medical bills, Rs.5, 000.00 towards conveyance and Rs.3, 00, 000.00 towards artificial limb and below knee prosthesis, needs no enhancement. Thus, the petitioner is entitled for modified compensation as below: 27. Thus, the petitioner is entitled for a sum of Rs.6, 63, 120.00 in addition to what has been granted by the Tribunal. Hence, the following: ORDER (i) MFA No.10275/2012 preferred by the petitioner is allowed in part. (ii) MFA No.8526/2012 preferred by the Insurance Company is dismissed. (iii) The impugned judgment and award dtd. 3/7/2012 passed in MVC No.6603/2010 by the Tribunal is modified by enhancing the compensation of Rs.6, 63, 120.00 together with interest at 6% p.a. from the date of petition till the date of deposit. (iv) Insurance company is directed to deposit the compensation amount including the enhanced compensation together with interest within a period of 4 weeks from the date of receipt of the copy of this order. (v) All other conditions and apportionment remains unaltered. (vi) Amount in deposit, if any, in MFA No.8526/2012 shall be transmitted to the concerned Tribunal, forthwith.