13 July 2022 10:22 AM GMT
The Karnataka High Court has said if the medical evidence indicates that a minor child cannot straighten one of the lower limbs and one of the upper limbs has lost its power for use, it is as good as the human body becoming useless, so far as the person's ability to work and earn livelihood is concerned. Thus, the minor claimant has become functionally 100% disabled even when the...
The Karnataka High Court has said if the medical evidence indicates that a minor child cannot straighten one of the lower limbs and one of the upper limbs has lost its power for use, it is as good as the human body becoming useless, so far as the person's ability to work and earn livelihood is concerned. Thus, the minor claimant has become functionally 100% disabled even when the medical expert has stated she has suffered 50 percent disability.
The bench comprising Justice P Krishna Bhat accordingly granted a compensation of Rs 14.66 lakh under the head of loss of earning capacity to a minor child who met with an accident when she was 7 years old. The total compensation was computed at Rs. 21.86 lakh.
The bench observed, "The medical expert has stated that she has suffered 50% physical disability for the whole body. But the picture one gets from the evidence of the medical expert and perusal of the medical records is very bleak about the future prospects of this minor claimant."
"Human body cannot be treated like an assemblage of its constituent parts. In other words, if the medical evidence is clinching on the aspect that a person who is a minor child cannot straighten her one of the lower limbs and one of the upper limbs has lost its power for use, it is as good as the human body becoming useless so far as the person's ability to work and earn livelihood is concerned. In the said larger sense, the minor claimant in this case has become functionally 100% disabled."
The minor was hit by a goods vehicle being driven in rash and negligent manner, back in 2006. It was alleged the vehicle dragged her for a distance of about 20 feet causing her grievous injuries.
The Motor Accidents Claim Tribunal, after hearing the counsel on both sides and on perusing the records, allowed the petition in part and awarded a compensation of Rs. 4,41,250/- with interest thereon at 6% per annum, with liability to pay the compensation fastened on the Insurance Company.
Insurance Company resisted fixing functional disability to 100%
Advocate MY Katagi for New India Assurance argued that in Kajal v. Jagdish Chand and others, (2020) 4 SCC 413, the Supreme Court fixed functional disability at 100% since in that case the minor child was completely reduced to vegetable stage. In the present case however, the claimant is not in such physically debilitated condition.
Rejecting this contention, the bench observed, "In my considered opinion accepting such contention would reduce the approach of viewing a human-being to that of a machine. If the claimant, as the evidence shows, cannot use one of the lower limbs, as a human requires to use it, and one of the upper limbs has completely become non-functional, it is harsh and inhuman to hold that he/she is functional to some extent and in terms of his earning capacity in the labour market he would have some demand."
"Unfortunately, human life is not mathematics. It is something more complex. Stark reality is that for such a person who has lost the proper use of some of the essential limbs in terms of their utility for earning purpose, it is over simplistic to say that he/she can earn some income by resorting to limb-wise arithmetic. Accordingly, the contention of the learned counsel for the Insurance Company is unacceptable besides being unreasonable."
Noting that the claimant was a minor female child of 7 years at the time of the accident, the Court said it is rather difficult to anticipate how much she would have earned once she attained the age of earning.
Having said that, the Court ordered that the claimant is entitled to the recomputed compensation of Rs. 21,86,173 as against Rs.4,41,250/- awarded by the Tribunal. The appeal was allowed in part and the Insurance Company was directed to deposit the differential amount with interest thereon before the Tribunal within a period of eight weeks.
Case Title: MISS. PRIYANKA PRADEEP GAVADE v. THE DIVISIONAL MANAGER
Case NO: MFA NO. 25028 OF 2010
Citation: 2022 LiveLaw (Kar) 260
Date of Order: 28TH DAY OF JUNE, 2022
Appearance: Advocate VITTHAL S.TELI for appellant; Advocate M. Y. KATAGI, FOR R1.
Click Here To Read/Download Order