Ramesh Kharvi vs Rama Kharvi

,,,

This appeal is preferred by the claimant â€" injured against the judgment and award dated 30.06.2011 passed by the Tribunal in MVC No.660/2010,,,

seeking for enhancement of compensation, not being satisfied with the compensation awarded by the Tribunal.",,,

The factual matrix of the appeal is as under:,,,

It is stated in the claim petition that on 06.06.2010 at about 1.00 p.m., over ring road of Kharvikere, Kundapura Kasaba Village, Kundapura Taluk, the",,,

injured namely Ramesh Kharvi was travelling as a passenger in an autorickshaw bearing Reg.No.KA-20-A-9727 which belonged to the second,,,

respondent namely Mr. Rolwin Rebello. Respondent No.1, the driver of the autorickshaw had driven the offending vehicle at a greater speed from",,,

Tallur side towards Kundapura side in a rash and negligent manner and caused the accident. Due to the accident, the claimant sustained injuries and",,,

thereafter he took treatment at Adarsha Hospital. He was a fisherman by profession and due to the accidental injuries, it is stated that he was not in a",,,

position to attend to his work as earlier as it was not possible for him to go with the team to deep sea to catch fish and being unable to eke out his,,,

livelihood as a fisherman and support his family members, he filed a claim petition before the Tribunal seeking compensation.",,,

Upon service of notice of the claim petition, respondent Nos.1 and 2 remained absent and were placed exparte. Respondent No.3 - Insurance",,,

Company appeared through its counsel and filed written statement resisting the claim petition contending that the offending autorickshaw was not,,,

involved in the accident. It was further contended that the said vehicle was duly insured but however, the liability, if any, was restricted to the terms",,,

and conditions of the policy issued. It was further contended that the driver of the offending vehicle did not have an effective driving licence to drive,,,

the class of vehicle involved in the accident. Urging these grounds, the Insurer sought for dismissal of the claim petition.",,,

Based on the pleadings of the parties, the Tribunal framed the issues. On behalf of the claimant, the claimant examined himself as PW-1 and got",,,

examined the doctor who treated him as PW-2 and got marked documents at Ex.P1 to Ex.P11. The respondents neither examined any witnesses nor,,,

got marked any documents.,,,

On evaluating the entire oral and documentary evidence placed on record, the Tribunal awarded compensation in a sum of Rs.5,45,800/- with",,,

interest at 6% per annum from the date of petition till the date of deposit. It is this judgment which is under challenge in this appeal by the appellant,",,,

seeking enhancement of compensation awarded by the Tribunal.,,,

Sri. H. Pavana Chandra Shetty, learned counsel for the appellant has taken me through the evidence of PW-1 who is aged about 33 years and the",,,

documents wound certificate Ex.P3, disability certificate Ex.P8, certificate issued by Lime Shell Worker’s Sangha Ex.P9, X-ray Ex.P11. Ex.P3 -",,,

wound certificate indicates that his right hand up to the elbow part has been amputated. PW-2 being the orthopedic surgeon at Kundapur who treated,,,

the claimant/injured has also supported the evidence of PW-1 and has opined that the injured has suffered permanent disability of 60% to the right,,,

hand and 30% to the whole body. He has further deposed that as the claimant has suffered amputation of his right hand who is a fisherman by,,,

profession, hence he has suffered functional disability to the extent of 60%. When the Doctor himself has clearly opined that the functional disability",,,

was to an extent of 60%, the Tribunal has erred in awarding global compensation of Rs.4,60,800/-, without taking the monthly income of the injured",,,

and applying proper multiplier and percentage of disability to the said income. Accordingly the learned counsel for appellant contended that this,,,

infirmity requires to be intervened in this appeal by re-appreciating the evidence of PWs. 1 and 2. The claimant himself has deposed in his evidence,,,

that he was aged 35 years at the time of the accident. The said age factor has been considered by the Tribunal and by relying on the decision,,,

rendered by Hon'ble Supreme Court in the case of SARLA VARMA & ORS. VS. DELHI TRANSPORT CORPORATION & ANR. [2009 ACJ,,,

1298], has come to the conclusion that multiplier ‘16’ ought to be applied to the case of the claimant. But it has failed to calculate the ‘Loss of",,,

income due to disability’ on the basis of the said multiplier.,,,

In support of his contention, the learned counsel for appellant has placed reliance on the case of PRATAP NARAIN SINGH DEO VS. SRINIVAS",,,

SABATA & ANR. [(1976) 1 SCC 289], wherein it is held as under:",,,

“2. The Commissioner held in his order dated May 6, 1969 that the injury had resulted in amputation of the left arm of the respondent above the",,,

elbow. He held further that the respondent was a carpenter by profession and ‘by loss of his left hand above the elbow he has evidently been,,,

rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only’. He therefore adjudged him to have lost,,,

“100% of his earning capacityâ€. On that basis, he calculated the amount of compensation at Rs.9,800/- and ordered the payment of penalty to the",,,

extent of 50%, together with interest at 6% p.a., making a total of Rs.15,092/-â€​.",,,

Further in para 5 of the said judgment it is held as under:,,,

“5. The expression ‘total disablement’ has been defined in Section 2(1)(l) of the Act as follows:,,,

“total disablement†means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was",,,

capable of performing at the time of the accident resulting in such disablement.,,,

It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for",,,

consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. x,,,

x x x â€​,,,

(emphasis supplied),,,

In support of the same, learned counsel for appellant, has placed reliance on a judgment rendered by a Division Bench of this Court in MFA",,,

No.1764/2006 (MV) dated. 01.12.2008 wherein in this judgment at para-4 it has been held as under:,,,

“4. In view of the abovesaid decision, we take the physical disability at 100% and we assess the amount towards personal injuries sustained by the",,,

claimant. The Tribunal is not justified in taking 70% disability having regard to the occupation which has been carried out by the claimant as he was an,,,

agricultural coolie. In view of II Schedule to Sec.163A of MV Act, we take monthly income of the claimant at Rs.3,000/-.â€​",,,

Relying on the definition of Section 2(1)(l) of the Act as well as the judgments referred to above, the learned counsel for the appellant strenuously",,,

contends that the appellant â€" injured being a fisherman by profession, due to the traumatic amputation of his right hand, it has become impossible for",,,

him to go for fishing and eke out his livelihood. Since in the present case on hand, as he is incapacitated to perform the work which he was performing",,,

prior to the accident, the whole body disability of the appellant ought to have been adopted at 100% in order to award his compensation towards",,,

‘Loss of income due to disability. Since the Tribunal has lost sight of the said fact and has awarded global compensation, the learned counsel pleads",,,

that the said aspect be taken into consideration by this Court and award compensation towards ‘Loss of future income due to disability’ by,,,

taking his disability at 100%.,,,

Learned counsel for appellant has also placed reliance on the case of SYED SADIQ, ETC. VS. DIVISIONAL MANAGER, UNITED INDIA",,,

INS. CO. [AIR 2014 SC 1052 w] herein the Hon'ble Supreme Court has held in detail regarding the future income of the self employed people as well,,,

as the claimants said to be seeking for suitable compensation. The wages/income of those employed in unorganized sectors has not registered a,,,

corresponding increase and has not kept pace with the increase in the salaries of government employees and those employed in private sectors. But it,,,

cannot be denied that there has been incremental enhancement in the income of those who are self- employed and even those engaged in daily basis,",,,

monthly basis or even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the",,,

persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who",,,

earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of",,,

his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason, etc.",,,

On the basis of the above judgment, the learned counsel contends that the monthly income of the appellant be taken appropriately at a minimum of",,,

Rs.6,000/- per month in order to calculate the compensation to be enhanced by this court. Further, he contends that since he was under treatment for",,,

more than six months, the compensation towards ‘Loss of income during laid-up period’ also be appropriate enhanced taking the monthly",,,

income of the appellant at minimum Rs.6,000/-.",,,

Learned counsel for appellant has further relied on M/S. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD. VS.,,,

MANDALA YADAGARI GOUD & ORS. [AIR 2019 SC 18 2w5h]erein Hon'ble Supreme Court has awarded interest at 9% on the compensation,,,

amount. The learned Tribunal in the present case has awarded 6% interest. Therefore, this ratio of reliance is squarely applicable to the present case.",,,

Hence the learned counsel contends that it is necessary to enhance the interest to 9% from 6% as awarded by the Tribunal.,,,

The learned counsel further contends that the appellant aged 33 years being an unmarried, would have a tough time finding a bride for marriage,",,,

which chances are abysmal with an amputated hand and no sources of livelihood. Hence, he contends that considerable amount may be awarded by",,,

this Court towards ‘Loss of marriage prospects’, which head has not been considered by the Tribunal.",,,

It is the further contention of the learned counsel that a very meager amount of Rs.25,000/- has been awarded by the Tribunal towards ‘Loss of",,,

amenities’, which head requires considerable enhancement by this Court having regard to the fact that the appellant has lost all his happiness and",,,

amenities in life due to the amputation of his right hand and he would always be dependant on some other person to aid him in his regular activities as,,,

well.,,,

Learned counsel for the appellant further contends that due to the amputation of his right hand, compensation towards purchase of artificial limbs",,,

may be awarded suitably. Thus, the learned counsel strenuously contends that the appeal filed by the appellant be allowed and the compensation",,,

awarded by the Tribunal be enhanced under all the above heads suitably.,,,

Per contra, learned counsel for the third respondent â€" Insurance Company vehemently opposes the contentions put forth by the counsel for the",,,

appellant and contends that the Tribunal has considered the fact of the amputation of the claimant’s right hand and has awarded just and fair,,,

compensation under all the heads and hence, enhancement of compensation under any of the heads would not arise. He further opposes grant of any",,,

compensation by this court towards artificial limbs, in view of the fact that the appellant has not placed any material before court to show that the",,,

same has been purchased or requires to be purchased. Without raising any ground in the claim petition and proving the same, the learned counsel for",,,

the Insurance Company contends that this court ought not to consider the said ground for grant of any compensation. Hence, the learned counsel",,,

contends that the judgment passed by the Tribunal requires no interference by this Court.,,,

In the backdrop of the contentions taken by the learned counsel for the parties, I find that there is no dispute with regard to the accident that",,,

occurred on 6.6.2010 and with regard to the injuries suffered by the appellant / claimant in the accident. The Wound Certificate at Exhibit P.3 reveals,,,

that the appellant’s right hand was completely crushed beyond salvage, all tendons crushed, active bleed to hand appeared to have been totally",,,

crushed till wrist, avulsion of right fractural area, avulsion of right side face, multiple abrasions, abrasion of right side face and abrasion of right side",,,

thigh and the Doctor had opined the first injury to be grievous in nature.,,,

Having regard to the above injuries suffered by the appellant wherein his right hand was amputated, I find that he would have undergone utmost pain",,,

and agony due to the injuries and would have suffered untold hardship. Hence, I find that the compensation of Rs.30,000/- granted by the Tribunal",,,

towards ‘Pain and agony’ is on the lower side. Hence, I hereby enhance the compensation under the said head by another Rs.20,000/-.",,,

In view of the contention of the learned counsel for the appellant and having regard to the decisions in support of his submission, as rightly contended",,,

by the learned counsel for the appellant, I find that the Tribunal has erred in not computing the compensation towards ‘Loss of income due to",,,

disability’ by taking the income of the injured and applying appropriate multiplier and the percentage of disability.,,,

The appellant being a fisherman by occupation wherein his hands are the very much essential body parts to carry on fishing to eke out his livelihood,",,,

undoubtedly, as per Section 2(1)(l) of the Act, he has been incapacitated for the work which he was capable of performing in order to earn his living.",,,

Though the evidence of PW-2 Dr. Shivkumar, Orthopedic Surgeon revealed that the appellant suffered permanent physical disability of 60% to the",,,

right hand and 30% to the whole body, having regard to the fact that he has become incapacitated to carry on his occupation of fishing due to the",,,

amputation of his right arm, and though the judgments of the Apex Court support the fact that the same can be taken at 100% disability, I am of the",,,

opinion that his permanent disability could be safely taken at 80% in order to arrive at the compensation towards ‘Loss of future income due to,,,

permanent disability’.,,,

Further, in view of there being no acceptable proof as regards his income, the accident being of the year 2010, having regard to the settled norms",,,

adopted by the Lok Adalath, I hereby assess the income of the appellant at Rs.6,000/- per month.",,,

As far as multiplier aspect is concerned, even as per the opinion of the Tribunal, the age of the appellant being 35 years, in view of ruling of the Apex",,,

Court in the case of SARLA VARMA AND OTHERS vs. DELHI TRANSPORT CORPORATION AND ANR. (2009 ACJ 1298), the multiplier",,,

to be adopted would be ‘16’.,,,

Hence, with the income of the injured at Rs.6,000/- and disability at 80% with multiplier ‘16’, the compensation towards ‘Loss of future",,,

income due to permanent disability’ is arrived at Rs.9,21,600/-(Rs.6000 x 12 x 16 x 80/100).",,,

Further, the appellant was under treatment for a minimum period of six months. Hence, I find it justifiable to grant compensation of a sum of",,,

Particulars,"Compensation

awarded by

MACT","Compensation

enhanced by

this Court",Total

Pain and

agony","30,000","20,000","50,000

Medical

expenses,

conveyance,

special diet,

nourishment

and

attendant

charges","30,000",Nil,"30,000

Loss of

income or

future loss of

earning

capacity and

future loss of

amenities in

life","4,60,800","4,60,800","9,21,600

Loss of

income

during laid

up period",Nil,"36,000","36,000

of life,,,

Future

medical

expenses",Nil,Nil,Nil

Future

Marriage

prospects",Nil,"50,000","50,000

TOTAL,"5,45,800","5,91,800","11,37,600