SYED SADIQ ETC. vs. DIVISIONAL MANAGER,UNITED INDIA INS.CO.

C.A.@SLP(C) 16739-16741 of 2012 1 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.662-664 OF 2014 (ARISING OUT OF SLP(C) NO(s). 16739-16741 OF 2012) SYED SADIQ ETC. …APPELLANTS Vs. DIVISIONAL MANAGER, UNITED INDIA INS. CO. … RESPONDENT J U D G M E N T V. Gopala Gowda, J. Leave granted. 2. This appeal is filed by the appellants questioning the correctness of the common judgment JUDGMENT and final order dated 31.10.2011 passed by the High Court of Karnataka at Bangalore in M.F.A. No. 1131 of 2011 [MV], C/W M.F.A. Nos. 1132 and 1133 of 2011 [MV], urging various facts and legal contentions in justification of their claim. 3. Necessary relevant facts are stated hereunder to appreciate the case of the appellants and also Page 1 C.A.@SLP(C) 16739-16741 of 2012 2 to find out whether the appellants are entitled for the relief as prayed in these appeals.

claimants in the appeals herein were proceeding on the left side of the road by pushing the motorcycle bearing Registration no. KA-16-2404 since it was punctured. When the appellants/ claimants came near the Coper Petrol Bunk, opposite to Jai Hind Hotel, a tractor bearing no KA-16/T-8219-8220 came from the opposite direction on its right side in rash and negligent manner and dashed into the motor cycle and the appellants/claimants. This resulted in all the appellants/claimants sustaining grievous JUDGMENT injuries. 4. They filed MV Case Nos. 149, 147 and 148 of 2010 respectively before the Motor Accident Claim Tribunal, Chitradurga (for short ‘the Tribunal’). The Tribunal awarded different awards in the three different appeals which had been heard together by Page 2 C.A.@SLP(C) 16739-16741 of 2012 3 the High Court of Karnataka. Since the injuries suffered by the three appellants are different, we

appellants in the road accident are concerned, there is no dispute that the accident occurred on 14.02.2008 due to the rash and negligent driving of the tractor-trailer bearing registration No. KA-16/T-8219-8220 by its driver. The appeals therefore, are confined to determining whether the quantum of compensation which was enhanced by the High Court from that of the Tribunal is just and proper or whether it requires further enhancement JUDGMENT in the interest of justice. We take up the appeals one at a time. Civil Appeal @ MFA 1131/2011 (MVC No. 149/ 2010) 5. It is evident from the material and legal evidence produced on record that the appellant/ claimant in this appeal had sustained injuries to lower end of right femur and his right leg was Page 3 C.A.@SLP(C) 16739-16741 of 2012 4 amputated. Further, he had sustained injury over his left upper arm. The injuries sustained by him

7&8, disability certificate Ex. P-12, X-ray films Ex.P-218 and was further supported by oral evidence of the appellant/claimant and the doctor examined as PW-1 and PW-4 respectively. PW-4 Dr. Rajesh had stated in his evidence that the appellant/claimant had suffered disability of 24% to upper limb and 85% to lower limb. The Tribunal, however, had considered the disability of the appellant/claimant caused to whole body at 30%. The High Court JUDGMENT however, taking into consideration the amputation of the right leg of the appellant/claimant, determined the disability at 65% without assigning any proper reason for coming to this conclusion. Therefore, we intend to assign our reasons to hold that the High Court has erred in concluding the disability at 65%. Page 4 C.A.@SLP(C) 16739-16741 of 2012 5 6. This Court in the case of Mohan Soni v. Ram 1 Avtar Tomar & Ors. , has elaborately discussed upon

1 (2012) 2 SCC 267 Page 5 C.A.@SLP(C) 16739-16741 of 2012 6

Page 6 C.A.@SLP(C) 16739-16741 of 2012 7

Page 7 C.A.@SLP(C) 16739-16741 of 2012 8 7. Further, the appellant claims that he was working as a vegetable vendor. It is true that a

However, the occupation of vegetable vending is not confined to selling vegetables from a particular location. It rather involves procuring vegetables from the whole-sale market or the farmers and then selling it off in the retail market. This often involves selling vegetables in the cart which requires 100% mobility. But even by conservative approach, if we presume that the vegetable vending by the appellant/claimant involved selling JUDGMENT vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the market place which otherwise would be extremely difficult for him with an amputated leg. We are required to be sensitive while dealing with manual labour cases where loss of limb is often equivalent to loss of livelihood. Page 8 C.A.@SLP(C) 16739-16741 of 2012 9 Yet, considering that the appellant/claimant is still capable to fend for his livelihood once he is

8. The appellant/claimant in his appeal further claimed that he had been earning 10,000/- p.m. by doing vegetable vending work. The High Court however, considered the loss of income at 3500/- p.m. considering that the claimant did not produce any document to establish his loss of income. It is difficult for us to convince ourselves as to how a labour involved in an unorganized sector doing his own business is expected to produce documents to JUDGMENT prove his monthly income. In this regard, this Court, in the case of Ramchandrappa v. Manager, 2 Royal Sundaram Alliance Company Limited , has held as under:

2 (2011) 13 SCC 236 Page 9 C.A.@SLP(C) 16739-16741 of 2012 10

Page 10 C.A.@SLP(C) 16739-16741 of 2012 11

reasonably capable of earning 6,500/- per month. JUDGMENT 10. Further, it is evident from the material evidence on record that the appellant/claimant was 24 years old at the time of occurrence of the accident. It is also established on record that he was earning his livelihood by vending vegetables. The issue regarding calculation of prospective Page 11 C.A.@SLP(C) 16739-16741 of 2012 12 increment of income in the future of self employed people, came up in Santosh Devi v. National

3 (2012) 6 SCC 421 Page 12 C.A.@SLP(C) 16739-16741 of 2012 13

Page 13 C.A.@SLP(C) 16739-16741 of 2012 14 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.

Therefore, considering that the appellant/ claimant was self employed and was 24 years of age, we hold JUDGMENT that he is entitled to 50% increment in the future prospect of income based upon the principle laid

4 (2009) 6 SCC 121 Page 14 C.A.@SLP(C) 16739-16741 of 2012 15

uphold the same for the purpose for calculating the JUDGMENT amount of compensation to which the appellant/ claimant is entitled to.

by the appellant/claimant, he has produced medical bills and incidental charges bills marked as Exs. P-25 to P-201 and prescriptions at Exs. P-202 Page 15 C.A.@SLP(C) 16739-16741 of 2012 16 to P-217 on the basis of which the Tribunal awarded

6,500/-) x 12 x 18].

JUDGMENT 13. Further, along with compensation under conventional heads, the appellant/claimant is also entitled to the cost of litigation as per the legal principle laid down by this Court in the case of 5 Balram Prasad v. Kunal Saha . Therefore, under this head, we find it just and proper to allow 25,000/- 5 Civil Appeal no. 2867 of 2012. Page 16 C.A.@SLP(C) 16739-16741 of 2012 17 14. Hence, the appellant/claimant is entitled to

6 Tragedy , we find it just and proper to allow JUDGMENT interest at the rate of 9% per annum. 16. Hence, the total amount of claim the appellant/claimant becomes entitled to is 21,65,100/- with interest @ 9% per annum from the date of application till the date of payment. 6 AIR 2012 SC 100 Page 17 C.A.@SLP(C) 16739-16741 of 2012 18 Civil Appeal @ MFA 1132/2011 (MVC No. 147/2010) 17. The appellant/claimant in this appeal has

and fibula. The injuries sustained and the treatment taken by the appellant/claimant are evident from discharge card Ex. P-225, photographs marked as Ex. P-227 to P-234, disability certificate marked as Ex. P-236, X-ray films Ex. P- 574 supported by the oral evidence of the claimant and the doctor examined as PW-3 and PW-4 respectively. PW-4 Dr. Rajesh had stated in his evidence that the appellant/ claimant has suffered JUDGMENT from permanent disability of 69% to lower limb. The High Court has taken his functional disability at 25%. However, while determining the disability of the claimants in motor accidents cases, this Court might be sensitive about the functional disability involved and the nature of the occupation, particularly, if the occupation involves manual Page 18 C.A.@SLP(C) 16739-16741 of 2012 19 labour. Therefore, we hold that the High Court erred in determining the functional disability of

appeal is also a vegetable vendor like the appellant/claimant in Civil Appeal @ MFA 1131/2011, we take his monthly income at 6,500/- on average and for the reasons recorded in that appeal, we determine the functional disability of the appellant/claimant in the present appeal at 35%. Considering his age, and based on the legal principle laid down by this Court in the cases mentioned supra, we hold his increment on future JUDGMENT income at 50% and the multiplier at 18. Therefore, he is entitled to 7,37,100/- [( 6,500 x 35/100 + 50/100 x 35/100 x 6,500) x 12 x18] under the head of ‘loss of future income’. 18. The amount awarded by the Tribunal and the High Court under other conventional heads have not been Page 19 C.A.@SLP(C) 16739-16741 of 2012 20 disputed by the appellant/claimant by producing contrary evidence. Therefore, the amount awarded

the appellant/claimant is also entitled to the cost

20. Therefore, the appellant/ claimant is entitled to a total sum of 9,77,100/- with interest @ 9% per annum based on the principle laid down by this Court mentioned supra. Page 20 C.A.@SLP(C) 16739-16741 of 2012 21 Civil Appeal @ MFA 1133/2011 (MVC No. 148/2010) 21. The appellant/claimant in this appeal has

it has been established that the appellant/ rd claimant has sustained fracture on middle 1/3 of right humerus and comminuted fracture at the rd rd junction of upper 1/3 and middle 1/3 of right tibia. The injuries sustained by him and the treatment taken by him is evident from the disability certificate marked as Ex. P-221, X-ray film marked as Ex. P-222 which is supported by oral evidence of the claimant and doctor examined as PW- JUDGMENT 2 and PW-4 respectively. PW-4 Dr. Rajesh has stated in his evidence that the claimant has suffered 22% permanent disability to upper limb and 29% to lower limb. The High Court has calculated the functional disability to 13%. We are inclined to hold that the High Court has erred in ascertaining the functional disability to such a low percentage considering Page 21 C.A.@SLP(C) 16739-16741 of 2012 22 that the appellant/claimant earns his livelihood through manual labour. It is evident from the material evidence produced on record that the appellant/claimant has suffered from comminuted fracture in the accident as a result of which he will not be able to bend, stretch or rotate his right hand. He will also not be able to lift heavy material which is so essential to carry on with his business to earn his livelihood. Therefore, we are inclined to observe that the appellant/claimant suffers from a functional disability to the extent of 85%. 22. Further, the appellant/claimant has claimed JUDGMENT that he has been earning 5,000/- p.m. by working as a cleaner of the lorry. The Tribunal assessed his monthly income at 3000/-. The High Court, considering his age and his profession as a cleaner, assessed his income at 3500/-. However, based on the Karnataka State Minimum Wages Rule Page 22 C.A.@SLP(C) 16739-16741 of 2012 23 2012-2013, the appellant/claimant is entitled to 4246/- per month. Since, no written record of his

4246/- rounding it off as 4300/- per month. Further, an amount of 700/- can be added as daily barter charges. Therefore, his monthly income amounts to 5000/-. 23. Further, considering that the appellant/ claimant was 22 years of age, the multiplier applicable to his age group is 18 and also based on the legal principle laid down by this Court in various cases, we hold that he is entitled to 50% JUDGMENT increment in future loss of income. Therefore, he is entitled to an amount at 13,77,000/- [( 5000 x 85/100 + 50/100 x 85/100 x Rs.5,000) x 12 x 18]. 24. It is pertinent to note that the appellant/ claimant in this appeal has produced medical bills for 8000/-. He was treated as an inpatient for 15 Page 23 C.A.@SLP(C) 16739-16741 of 2012 24 days in a private hospital. Therefore, considering the same, the High Court has awarded a sum of

appellant/claimant was also required to have conveyance, nourishment and attendant charges for proper recovery of health, we increase the compensation under this head to 50,000/-. Further, considering the fracture sustained by the appellant/claimant and the evidence produced by the doctor, another 5000/- awarded by the High Court towards future expenses is upheld by us. 25. Further, towards loss of amenities, the JUDGMENT Tribunal has awarded 10,000/-. However, considering the disability stated by the doctor and the amount of discomfort and unhappiness he has to undergo in the future life, the High Court has awarded 20,000/- under this head. We intend to observe that the amount awarded by the High Court Page 24 C.A.@SLP(C) 16739-16741 of 2012 25 under this head is very meager and inadequate considering the age and the amount of disability.

27. Therefore, the appellant/ claimant in this appeal is entitled to a total amount of 15,67,000/- with an interest of 9% per annum from the date of application till the date of payment. Page 25 C.A.@SLP(C) 16739-16741 of 2012 26 Contributory Negligence

accident, it is held by the Tribunal that the appellants/claimants herein should have taken utmost care while moving on the highway. Looking at the spot of the accident, the Tribunal concluded that the appellants/claimants were moving on the middle of the road which led to the accident. Therefore, the Tribunal concluded that though the tractor has been charge sheeted under sections 279 and 338 of IPC, but given the facts and JUDGMENT circumstances of the case, the appellants/claimants also contributed to the accident to the extent of 25%. The High Court without assigning any reason concurred with the findings of the Tribunal with respect to contributory negligence. We find it pertinent to observe that both the Tribunal and the High Court erred in holding the appellants/ Page 26 C.A.@SLP(C) 16739-16741 of 2012 27 claimants in these appeals liable for contributory negligence. The Tribunal arrived at the above

the absence of any evidence to prove the same. Therefore, we are inclined to hold that the contribution of the appellants/claimants in the accident is not proved by the respondents by producing evidence and therefore, the finding of the Tribunal regarding contributory negligence, which has been upheld by the High Court, is set aside. 29. The appeals are allowed accordingly. The JUDGMENT appellant/claimant in Civil Appeal @ MFA 1131/2011 (MVC No. 149/ 2010) is awarded a compensation of amount at 21,65,100/-. The appellant/claimant in Civil Appeal @ MFA 1132/2011 (MVC No. 147/2010) is awarded a compensation of amount at 9,77,100/-. The appellant/claimant in Civil Appeal @ MFA Page 27 C.A.@SLP(C) 16739-16741 of 2012 28 1133/2011 (MVC No. 148/2010) is awarded a compensation of amount at 15,67,000/-. All the

date of payment. 30. The name of the erstwhile first respondent has been deleted from the array of parties by Order of this Court dated 1.7.2013. The Insurance Company remains the sole respondent in this case. Therefore, we direct the Insurance Company to deposit 50% of the awarded amount with proportionate interest within four weeks from the date of receipt of a copy of this order, after JUDGMENT deducting the amount if already paid, in any of the Nationalized Bank of the choice of the appellants for a period of 3 years. During the said period, if they want to withdraw a portion or entire deposited amount for their personal or any other expenses, including development of their asset, then they are Page 28 C.A.@SLP(C) 16739-16741 of 2012 29 at liberty to file application before the Tribunal for release of the deposited amount, which may be

regard. The rest of 50% amount awarded with proportionate interest shall be paid to the appellants/claimants by way of a demand draft within four weeks. The Insurance Company is further directed to submit compliance report before this court within five weeks. ………………………………………………………………………J. [SUDHANSU JYOTI MUKHOPADHAYA] JUDGMENT ………………………………………………………………………J. [V. GOPALA GOWDA] New Delhi, January 16, 2014 Page 29