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2023 Supreme(Online)(KAR) 22994
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MFA No. 6585 of 2016 C/W
MFA No. 6586 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 6585 OF 2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 6586 OF 2016 (MV-D)
IN MFA NO.6585/2016
BETWEEN:
MOHAN KUMAR
S/O RAMEGOWDA,
AGED ABOUT 46 YEARS,
R/O SAVASHIHALLI VILLAGE,
MADIHALLI HOBLI,
BELUR TALUK-573115.
PRESENT ADDRESS
HAGARE VILLAGE,
MADIHALLI HOBLI,
BELUR TALUK-573115.
…APPELLANT
(BY SRI. JAGADEESH H.T., ADVOCATE)
AND:
1.
BABA PEER
S/O BASHEER,
AGED ABOUT 30 YEARS
R/O NO.210, BAFFER BUILDING,
ANCHAEPALYA,
Digitally signed by JAI
JYOTHI J
Location: HIGH COURT
OF KARNATAKA
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MFA No. 6585 of 2016 C/W
MFA No. 6586 of 2016
SRIKANAPURA,
TUMKUR ROAD,
NAGASANDRA POST
BANGALORE - 560073
2.
THE MANAGER
NATIONAL INSURANCE CO LTD
PLATE NO.101-106N-1,
NEW DELHI,
REPRESENTED BY THE MANAGER,
NATIONAL INSURANCE CO., LTD., P B NO.112,
MANJUNATHESHWARA COMPLEX,
OLD BUS STAND ROAD,
HASSAN – 573201
3.
THE MANAGER
THE ORIENTAL INSURANCE CO., LTD.,
NAG NIRMAL COMPLEX,
1ST MAIN, OPP RANGANNA CHOULTRY
BASAVANAHALLI MAIN ROAD,
CHIKKAMAGALORE – 577101
…RESPONDENTS
(BY SRI. B.C.SEETHARAMA RAO, ADVOCATE FOR R2,
SRI. R. GOVINDARAJAN, ADVOCATE FOR R3,
R1-NOTICE D/W V/O DT:24/04/2018)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 11.04.2016 PASSED IN MVC
NO.1012/15 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT,
BELUR,
PARTLY
ALLOWING
THE
CLAIM
PETITION
FOR
COMPENSATION
AND
SEEKING
ENHANCEMENT
OF
COMPENSATION.
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MFA No. 6585 of 2016 C/W
MFA No. 6586 of 2016
IN MFA NO.6586/2016
BETWEEN:
K.S.PANCHAKSHRI
S/O SHIVAKUMAR,
AGED ABOUT 34 YEARS
R/O KOMARANAHALLI VILLAGE,
HALEBEEDU HOBLI,
BELUR TALUK.
…APPELLANT
(BY SRI. JAGADEESH H.T., ADVOCATE)
AND:
1.
BABA PEER,
S/O BASHEER,
AGED ABOUT 30 YEARS
R/O NO.210, BAFFER BUILDING,
ANCHAEPALYA,
SRIKANAPURA,
TUMUKUR ROAD,
NAGASANDRA POST,
BANGALORE-560073.
2.
THE MANAGER
NATIONAL INSURANCE CO. LTD,
PLATE NO.101-106N-1
NEWDELHI.
REPRESENTED BY
THE MANAGER
NATIONAL INSURANCE CO. LTD,
P.B. NO.112, MANJUNATHESHWARA COMPLEX,
OLD BUS STAND ROAD,
HASSAN-573201.
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MFA No. 6585 of 2016 C/W
MFA No. 6586 of 2016
3.
THE MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
NAG NIRMAL COMPLEX,
1ST MAIN, OPP, RANGANNA CHOULTRY,
BASAVANAHALLI MAIN ROAD,
CHIKKAMAGALORE-577101.
…RESPONDENTS
(BY SRI. B C SEETHARAMA RAO, ADVOCATE FOR R2,
SRI. R. GOVINDARAJAN, ADVOCATE FOR R3,
R1-NOTICE D/W V/O DT:24/04/2018)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:11/04/2016 PASSED IN MVC
NO.1011/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MACT, BELURU PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION
AND
SEEKING
ENHANCEMENT
OF
COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
Amputation of a limb can result in 100% functional disability, even if there is not 100% permanent physical disability, if it affects the injured person's ability to carry out their profession.
Headnote:
AMPUTATION - FUNCTIONAL DISABILITY - LOSS OF EARNING CAPACITY- Amputation of right leg above knee and other grievous injuries suffered by the claimant in a motor vehicle accident resulted in 100% functional disability, affecting earning capacity.- The court held that functional disability and permanent physical disability are two different aspects, and even though there may not be 100% permanent physical disability, if it affects the injured person's ability to carry out their profession, it amounts to 100% functional disability.- The court awarded enhanced compensation under the head of loss of future income due to disability, considering the claimant's age, profession, and the nature of injuries sustained.
Fact of the Case:
The claimant, a 45-year-old man, suffered amputation of his right leg above the knee and other grievous injuries in a motor vehicle accident caused by the rash and negligent driving of the defendant. The claimant was working in a bakery and also doing agricultural work, and claimed to have been earning Rs. 50,000/- per month.
Finding of the Court:
The court found that the claimant had suffered 100% functional disability as a result of the amputation of his right leg above the knee, which affected his ability to work as he was doing before the accident. The court also found that the claimant's income at the time of the accident was Rs. 9,000/- per month, and that he was entitled to a multiplier of 14 based on his age.
Issues: 1. Whether the claimant had suffered 100% functional disability as a result of the amputation of his right leg above the knee?2. Whether the claimant's income at the time of the accident was Rs. 9,000/- per month?3. What multiplier should be applied to the claimant's income to calculate the loss of future income due to disability?
Ratio Decidendi: 1. The court held that functional disability and permanent physical disability are two different aspects, and even though there may not be 100% permanent physical disability, if it affects the injured person's ability to carry out their profession, it amounts to 100% functional disability.2. The court found that the claimant's income at the time of the accident was Rs. 9,000/- per month, based on the Notional Income Chart recognized by the Karnataka State Legal Service Authority.3. The court applied a multiplier of 14 to the claimant's income, based on his age of 45 years.
Final Decision: The court allowed the appeal in part and enhanced the compensation awarded to the claimant under the head of loss of future income due to disability from Rs. 7,05,600/- to Rs. 21,16,800/-. The court also awarded interest on the enhanced compensation at the rate of 6% per annum from the date of petition till the date of realization.
These appeals are filed by the appellants/claimants
challenging the judgment and award dated 11.04.2016 in
MVC.Nos.1012/2015 & 1011/2015 passed by the Senior
Civil Judge and MACT, Belur, for seeking enhancement of
compensation.
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Brief facts of the case are that, on
04.03.2015 at about 11.30 a.m., when the claimants were
proceeding on their Hero Honda motor bike bearing
No.KA-46-H-1239 towards Belur-Hassan road, at that
time, driver of the Maruthi Swift car bearing NO.KA-02-
MK-1046 drove the same in a rash and negligent manner
and dashed to the claimants. Due to which, the claimants
sustained grievous injuries.
Heard the arguments from both sides and
perused the records.
In MFA.No.6585/2016 (MVC.NO.1012/2015):
4.
The Tribunal has awarded the compensation
under various heads as follows:
1
Injury,
pain
and
sufferings
Rs.
1,00,000/-
2
Medical expenses
Rs.
3,59,000/-
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3
Loss of future income
Rs.
7,05,600/-
4
Attendant charges
Rs.
6,300/-
5
Conveyance,
nourishment, food and
attendant charges
Rs.
40,000/-
6
Loss of income during
laid up period
Rs.
36,000/-
7
Loss of amenities
Rs.
25,000/-
8
Loss of future medical
expenses
Rs.
8,10,000/-
Total
Rs. 20,81,900/-
5.
In the case on hand, the medical documentary
evidence and evidence of doctor proves the fact that the
claimant has suffered amputation of right leg above knee
and other grievous injuries to all over the body.
6.
It is stated that the claimant was working in a
bakery and was also doing agricultural work and was
earning
Rs.50,000/-
per
month.
The
Tribunal
had
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considered the income at Rs.6,000/- per month and held
that the claimant has suffered 70% of permanent physical
disability towards right leg above knee and accordingly,
granted compensation of Rs.7,05,600/- under the head
loss of future earning capacity due to disability.
7.
In the present case, the claimant was working
in a bakery and was also doing agricultural work. The
claimant had suffered amputation of right leg above knee.
The doctor has deposed that the claimant has suffered
85% of permanent physical disability towards right leg,
but the functional disability is not the same as that of
physical disability. If the injured is not able to do the work
as he was doing earlier to the accident, then that would be
amounting to 100% of functional disability. The Hon’ble
Supreme Court in the case of Raj Kumar Vs. Ajay
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Kumar and Another1, wherein at Paragraph Nos.12,
13 and 19, it is held as under:
“12. The Tribunal should also act with caution, if it
proposed to accept the expert evidence of doctors who
did not treat the injured but who give `ready to use'
disability
certificates,
without
proper
medical
assessment. There are several instances of unscrupulous
doctors who without treating the injured, readily giving
liberal disability certificates to help the claimants. But
where the disability certificates are given by duly
constituted Medical Boards, they may be accepted
subject to evidence regarding the genuineness of such
certificates. The Tribunal may invariably make it a point
to require the evidence of the Doctor who treated the
injured or who assessed the permanent disability. Mere
production of a disability certificate or Discharge
Certificate will not be proof of the extent of disability
stated therein unless the Doctor who treated the
claimant or who medically examined and assessed the
extent of disability of claimant, is tendered for cross-
examination with reference to the certificate. If the
Tribunal is not satisfied with the medical evidence
produced by the claimant, it can constitute a Medical
Board (from a panel maintained by it in consultation
with reputed local Hospitals/Medical Colleges) and refer
the claimant to such Medical Board for assessment of
the disability.
13. We may now summarise the principles
discussed above :
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent dis
