SRI. NANDISHA v. SEENU P.K

CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA ORAL JUDGMENT This appeal is filed by the claimant being aggrieved by the judgment and award dated 20th November 2019, passed by the V Addl.District & Sessions Judge and Addl.M.A.C.T., Hassan, (for short `Tribunal'), in MVC No.863/2018, seeking enhancement of compensation.

2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

3. The brief facts of the case are that, on

30.07.2017, at about 5.30 p.m., when the claimant was - 3 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR going on motorcycle from Plathra towards Khandanthar, he met with an accident due to rash and negligent driving of autorickshaw bearing registration No.KL-13-U-1484 by its driver; as a result, he sustained crush injury to the right leg and also fracture of right femur. He has spent substantial amount towards medical expenses and he has suffered permanent disability. With these reasons, the claimant has prayed for awarding of compensation of Rs.20 lakhs.

4. Respondent No.1 was the owner and respondent No.2 was the insurer of the offending autorickshaw. Respondent No.1 remained ex parte before the Tribunal. Respondent No.2-insurer its written statement, denying the contentions of the claim petitioner and it also denied its liability to pay the compensation. With these reasons, prayed to dismiss the claim petition.

5. From the rival contentions of the parties, the Tribunal framed necessary issues. - 4 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR

6. The claimant to prove his case examined two witnesses as PW-1 and PW-2 and marked 18 documents, as per Exs.P-1 to P-18. Respondent No.2 examined one witness as RW-1 and marked three documents as Exs.R-1 to R-3.

7. The Tribunal after hearing both parties and appreciating the evidence on record, held that the accident occurred due to negligence of driver of the autorickshaw. It assessed claimant 28 years at the time of the accident, his earning as Rs.8,500/- per month, functional disability at 50%, applied the multiplier as `17' and awarded following amount of compensation: Particulars Amount in Rs. Pain and sufferings Medical expenses 30,000/- 2,35,000/- Loss of earning during laid up period 12,000/- Food and nourishment Attendant charges Conveyance 5,000/- 6,000/- 6,000/- - 5 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR Loss of future earning 8,16,000/- Future medical expenses 25,000/- Total 11,35,000/- Being aggrieved by the said award passed by the Tribunal, the claimant has filed the present appeal seeking enhancement of compensation.

8. Heard the arguments of the learned counsel appearing for the claimant as well as the insurer.

9. Learned counsel the appellant/claimant submits that the claimant had lost his right leg below the knee and even he has sustained fracture of right femur; He was aged about 28 years at the time of accident and was unmarried; Claimant was working as driver/helper of JCB and earning Rs.25,000/- per month; The Tribunal has taken his income as Rs.8,000/- per month, which is highly incorrect.

10. He further contended that, according to the evidence of the doctor - PW-2, claimant has suffered permanent disability to an extent of 75%, but the Tribunal - 6 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR has taken disability at 50%, which is incorrect; The amount of compensation awarded under other heads are also on the lower side; No amount of compensation was awarded towards loss of amenities, marriage prospects etc., Even the Tribunal has not added future prospects while assessing the compensation under the head `loss of future earning capacity due to permanent disability'. With these reasons, prayed to enhance the compensation.

11. Learned counsel for respondent No.2-insurer supported the impugned judgment and submitted that there are no grounds to interfere in the findings of the Tribunal and prayed to dismiss the appeal.

12. Following points arise for consideration : (ii) Whether the claimant is entitled to enhancement of compensation? (ii) What order? Point No.1 :

13. The fact of the accident and injuries sustained by the claimant in the accident are not in serious dispute. Therefore, there is no need to reconsider the same. - 7 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR

14. According to the medical records produced by the claimant, it is proved that the claimant had sustained crush injury to his right leg and his right leg below knee was amputated. He sustained fracture of right femur and he underwent surgery. It is also accepted by the Tribunal that age of the claimant was 28 years at the time of accident. The Tribunal has assessed his notional income as Rs.8,000/- per month, as the claimant has not produced sufficient materials to prove his income as Rs.25,000/- per month. The said income is on the lower side. Following the chart prepared by the Karnataka State Legal Services Authority, the income of the claimant is taken as Rs.11,000/- per month.

15. PW-2 - doctor has stated that claimant has suffered permanent disability at 75% to his right limb below the knee. The Tribunal following Schedule-I, Part-II of Employees Compensation Act, assessed the permanent disability at 50%. Looking at the nature of work being - 8 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR done by the claimant as stated in the claim petition, the said assessment does not call for any interference.

16. It is true that the Tribunal has not awarded compensation towards future prospects to the claimant. His right leg was amputated and he is suffering from permanent disability to an extent of 50%. Therefore, looking at the facts of the present case, future prospects has to be added. He was aged about 28 years. Therefore, 40% as his income shall be added towards future prospects. Undisputedly, the multiplier applicable to the case on hand is `17'. On the basis of the same, compensation under the head `loss of future earning capacity due to permanent disability' has to be assessed.

17. Looking at the averments made in the claim petition, as well as materials available on record, the amount of compensation awarded under other heads are on the lower side. Claimant was admitted in this hospital for 7 days. Even after his discharge from the hospital, due - 9 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR to the amputation of leg, someone must have attended to assist him to do day-today activities. That was not properly compensated. He might also be on the special diet during treatment. The same has not been considered by the Tribunal.

18. According to the evidence of the claimant, he was unmarried at the time of the accident and he has also stated that his marriage prospects has been seriously affected. The Tribunal has not awarded any amount of compensation under those heads.

19. PW-1 in his evidence has stated that he wanted to have an artificial limb, but, due to poverty, he was unable to purchase the artificial limb. No amount of compensation was awarded by the Tribunal. Claimant's right leg below the knee was amputated. There is possibility of use of artificial limb, therefore, some amount needs to be awarded under the said head.

20. For the aforesaid discussions, following amount of compensation is awarded: - 10 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR Particulars Amount in Rs. Pain and sufferings Medical expenses Special diet, conveyance and attendant charges 75,000/- 2,35,000/- 50,000/- Loss of income during laid up period 55,000/- (Rs.11,000/- x 5) Loss of future earning capacity due to disability 15,70,800/- (Rs.11,000/- + 40% x 12 x 17x 50%) Loss of marriage prospects Future medical expenses Towards artificial limb Loss of amenities Total 50,000/- 36,000/- 1,00,000/- 50,000/- 22,21,800/- Amount awarded by the Tribunal 11,35,000/- Enhancement- 10,86,800/- Rounded off- 10,87,000/- The claimant is also entitled to interest at the rate of 6% p.a. on the enhanced amount of compensation from the date of petition till the date of realisation, excluding - 11 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR the amount awarded towards future medical expenses and artificial limb.

21. Respondent Nos.1 and 2 are jointly and severally liable to pay the said amount of compensation. Accordingly, point No.1 is answered partly in the affirmative.

22. In the result, I proceed to pass the following: ORDER i) The Appeal is allowed in part. ii) The judgment and award dated 20th November 2019, passed MVC.No.863/2018, by the V Addl.District and Sessions Judge and Addl.M.A.C.T., Hassan, stands modified. iii) The claimant is entitled to enhanced compensation of Rs.10,87,000/-, with interest at the rate of 6% p.a. on the enhanced amount, from the date of petition till its realization, excluding the amount awarded towards future medical expenses and artificial limb. - 12 - NC: 2025:KHC:41061 MFA No. 2923 of 2021 HC-KAR iv) The respondent No.2 - Insurance Company shall deposit the amount within a period of six weeks from the date of award. v) Out of the enhanced amount, claimant shall deposit 50% of the amount in any Nationalised Bank of his choice, for a period of two years and remaining 50% shall be released in his favour on due identity. vi) Draw award accordingly. Registry is directed to send back the records along with a copy of this judgment to the concerned Tribunal. Sd/- (UMESH M ADIGA) JUDGE bk/ List No.: 1 Sl No.: 43