S. SHIVAKUMARA SWAMY v. G. N. SHIVAKUMAR

(i) Firstly, the Tribunal erred in assuming the monthly income of the claimant as Rs.9,000/-, despite claiming that he earned Rs.15,000/- per month. (ii) Secondly, the claimant has examined the doctor as PW-2. In his evidence he has deposed that the claimant has suffered crush injury, he has undergone surgery, there is shortening of ½ inch left leg and deformity of lower third of the left leg and he is suffering from permanent physical - 6 - NC: 2024:KHC:39306 MFA No. 4839 of 2018 disability of 50% of left lower limb. Due to the disability he was unable to do his day today work. The disability assessed by the Tribunal is on the lower side and the claimant is entitled for addition of future prospects. In support of his contention, he has relied on the judgments of the Apex Court in the cases of ‘PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS’ 2020 SCC Online SC 752 and ‘ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020’ SCC Online SC 601. (iii) Thirdly, due to the accident, the claimant has sustained grievous injuries. He was treated as inpatient for a period of 98 days. Even after discharge from the hospital, he was not in a position to discharge his regular work. He has suffered lot of pain during treatment and he has to suffer the disability throughout his life. Considering the same, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are on the lower side. - 7 - NC: 2024:KHC:39306 MFA No. 4839 of 2018 (iv) Lastly, in view of the judgment of the Apex Court in the cse of KHENYEI vs. NEW INDIA ASSURANCE COMPANY LIMITED reported in (2015) 9 SCC 273, the claimant can recover the compensation amount from any one of the joint tort-feasors. Hence, he sought to allow the appeal.

7. On the other hand, the learned counsel for the Insurance Company raised following counter- contentions: (i) Firstly, the assertion of claimant that he was earning Rs.15,000/- per month, remains unsubstantiated due to lack of documentary evidence. In the absence of proof of income, the Tribunal has assessed the income of the claimant notionally. (ii) Secondly, the Tribunal considering the injuries sustained by the claimant and evidence of the doctor, has rightly assessed the whole body disability at 25%. - 8 - NC: 2024:KHC:39306 MFA No. 4839 of 2018 (iii) Considering the injuries sustained by the claimant and considering the age and avocation of the claimant, the compensation awarded by the Tribunal under the heads of 'loss of amenities', 'pain and sufferings' and other incidental expenses are just and reasonable and it does not warrant interference. (iv) Fourthly, in light of the Division Bench decision of this Court in the case of Ms.Joyeeta Bose and others –v- Venkateshan.V and others (MFA 5896/2018 and connected matters disposed of on 24.8.2020), the rate of interest awarded by the Tribunal at 9% p.a. on the compensation amount appears excessive. (v) Lastly, Insurance Company is liable to pay only 75% of the liability in respect of the offending lorry. In respect of 25% is concerned, the owner of the Tata Ace is liable to pay the compensation. Hence, he sought to dismiss the appeal. - 9 - NC: 2024:KHC:39306 MFA No. 4839 of 2018

8. Heard the learned counsel for the parties and perused the judgment and award of the Tribunal and the original records.

9. It is not in dispute that the claimant has sustained injuries in the road traffic accident occurred on 30.08.2013 due to rash and negligent driving of the offending lorry as well as offending Tata Ace by its drivers.

10. The Tribunal, considering the evidence of the parties and the materials available on record has rightly assessed the notional income of the claimant as Rs.9,000/- per month.

11. Due to the accident, the claimant has sustained crush injury to the left leg, fracture of both bones and other injuries. The doctor in his evidence has stated that the claimant has undergone surgery and he has suffered restricted knee movement as well as ankle movement, there is shortening of ½ inch of left leg, deformity of lower third of the left leg as well as weakness of thigh muscles. - 10 - NC: 2024:KHC:39306 MFA No. 4839 of 2018 The claimant has also produced photographs marked as Ex.P11.

12. On perusal of the evidence of the doctor, medical records and Ex.P11 – photographs, I am of the opinion that the whole body disability has to be assessed at 40%. Due to disability, he is unable to do his day today work. In view of the judgments of the Apex Court in the cases of PAPPU (supra) and ERUDAYA PRIYA (supra), the claimant is entitled for addition of future prospects.

13. In view of the law laid down by the Hon’ble Apex Court in the case of NATIONAL INSURANCE CO. LTD. - v- PRANAY SETHI AND OTHERS [AIR 2017 SC 5157], since the claimant was aged about 30 years, 40% of his income has to be added towards future prospects and the applicable multiplier is ‘17’. Hence, the monthly income of the claimant comes to Rs.12,600/- (Rs.9,000 + 40%). Thus, the claimant is entitled to Rs.10,28,160/- (Rs.12,600*12*17*40%) on account of 'loss of future income due to disability’. - 11 - NC: 2024:KHC:39306 MFA No. 4839 of 2018

14. Due to the accident, the claimant has suffered grievous injuries and also undergone surgery. He has suffered lot of pain during the treatment period and he has to suffer the disability throughout his life. Considering the prolonged pain during treatment as well as the permanent disability certified by the doctor, I am inclined to enhance the compensation awarded by the Tribunal under the head of 'pain and sufferings' from Rs.25,000/- to Rs.50,000/-, under the head of 'loss of amenities' from Rs.25,000/- to Rs.40,000/- and under the head ‘'medical expenses and nourishment’ from Rs.4,75,000/- to Rs.4,85,000/-.

15. Considering the nature of injuries, compensation awarded by the Tribunal under other heads is just and reasonable.

16. Thus, the claimant is entitled to the following compensation: Compensation under different Heads As awarded by the Tribunal As awarded by this Court - 12 - NC: 2024:KHC:39306 MFA No. 4839 of 2018 (Rs.) (Rs.) Pain and sufferings 25,000 50,000 Medical expenses and nourishment Loss of income during laid up period 4,75,000 4,85,000 65,400 65,400 Loss of amenities 25,000 40,000 Loss of future income 4,59,000 10,28,160 Future medical expenses 25,000 25,000 Total 10,74,400 16,93,560 Re.liability:

17. The Apex Court in the case of KHENYEI (supra) has held that if the accident has occurred due to the composite negligence of riders of two vehicles, it is the choice of the claimants, they can implead any one of the tortfeasors and claim compensation, the one tortfeasor can recover the amount from the other tortfeasor. The relevant portion is extracted hereinbelow: - 13 - NC: 2024:KHC:39306 MFA No. 4839 of 2018 “22.1. In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

22.2. In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

22.3. In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings. - 14 - NC: 2024:KHC:39306 MFA No. 4839 of 2018

22.4. It would not be appropriate court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint feasor independent proceedings after passing of the decree or award.”

18. In view of the above, the second respondent – Insurance Company is directed to deposit the entire it is for the insurer to file separate independent proceedings against the other vehicle before the appropriate legal forum for negligence and for recovery of the amount.

19. In the result, the following order is passed: ORDER (i) The appeal is allowed in part. (ii) The judgment of the Claims Tribunal is modified. (iii) The claimant is entitled to a total compensation of Rs.16,93,560/- as against Rs.10,74,400/- awarded by the Tribunal. - 15 - NC: 2024:KHC:39306 MFA No. 4839 of 2018 (iv) Following the judgment of the Division Bench of this Court in the case of ‘MS.JOYEETA BOSE’ (supra), the enhanced compensation shall carry interest at 6% per annum. (v) The second respondent - Insurance Company is directed to deposit the entire compensation amount along with interest from the date of filing of the claim petition till the date of realization, within a period of six weeks from the date of receipt of a copy of this judgment, with liberty to recover 25% of the liability from the owner of the Tata Ace bearing registration No.KA-10/7192. (vi) In view of the order dated 05.12.2023 passed by this Court, the claimant is not entitled to interest on the enhanced compensation for the delayed period of 254 days in filing the appeal. Sd/- (H.T. NARENDRA PRASAD) JUDGE CM List No.: 1 Sl No.: 56