1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.1 OF 2015(MV)
C/W.
MFA No.2994 OF 2015(MV)
IN MFA No.1/2015:
BETWEEN:
Smt. A.B.Sumitramma @ Sumitra,
W/o K.P.Thippeswamy,
Aged about 27 years,
Resident of Bachha Boranahatti,
Chitradurga Taluk & District.
... Appellant
(By Sri. Siddeshwara N.K., Advocate)
AND:
1. H.G.Chandramouli,
Major, R/o Church Road,
Kelagote, Chitradurga City & District.
2. The Divisional Manager,
Royal Sundaram Insurance Co. Ltd.,
Divisional Office, Maangalya Punarbhav,
II Floor, No.132, Brigade Road,
Bangalore.
... Respondents
(By Sri.Ravi S Samprathi, Advocate for R2:
Notice to R1 is dispensed with )
2
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 20.09.2014
passed in MVC No. 433/2013 on the file of the Principal
Senior Civil Judge, CJM. MACT-3, Chitradurga, awarding
compensation of Rs.17,91,480/- with interest @ 6% p.a.
from the date of petition till the date of deposit.
IN MFA No.2994/2015:
BETWEEN:
Royal Sundaram Insurance Co. Ltd.,
Divisional Office, Maangalya Punarbhav,
II Floor, No.132, Brigade Road,
Bangalore-560025
Rep. by its Divisional Manager.
... Appellant
(By Sri. Ravi S Samprathi, Advocate)
AND
1. Smt. A.B.Sumitramma @ Sumitra,
W/o Sri. K.P.Thippeswamy,
Aged about 28 years,
R/o Bachha Boranahatti,
Chitradurga Taluk & District-577501.
2. Sri. H.G.Chandramouli,
Major, R/o Church Road,
Kelagote, Chitradurga Town-577501.
...Respondents
(By Sri. N.K.Siddeswara, Advocate for R1:
Notice to R2 is dispensed with)
This MFA is filed under Section 173(1) of MV Act
against the Judgment and award dated: 20.09.2014
passed in MVC No.433/2013 on the file of the Principal
Senior Civil Judge, CJM, MACT-3, Chitradurga, partly
3
allowing the claim petition for compensation and seeking
enhancement of compensation.
These MFAs, coming on for admission, this day, this
Court, delivered the following:
JUDGMENT
These two appeals are filed challenging the judgment and award dated 20.09.2014 passed by the Principal Senior Civil Judge, CJM & MACT-III, Chitradurga in MVC No.433/2013. Since the challenge is to the same judgment, both the appeals are clubbed together, heard and common judgment is being passed.
2. The claimant has filed MFA No.1/2015 seeking enhancement of the compensation and the insurance company has filed MFA No.2994/2015 challenging the liability and also quantum.
3. Facts giving rise to the filing of the appeals briefly stated are that on 13.08.2012 at about 2.30 p.m. the claimant along with others was proceeding in 4 the bus bearing registration No.KA-16/B-757. When they reached near Madakaripura, at that time, the driver drove the bus in a rash and negligent manner and lost control over the same and bus went out off the road and dashed against a road side tree and caused the accident. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
4. The claimant filed a petition under Section 166 of the Act on the ground that she was working in Dharmasthala Gramodhyoga Sangha and was earning Rs.10,000/- per month. It was pleaded that she also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the driver of the bus. 5
5. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded that though the vehicle was insured with the company, liability, if any, is subject to the terms and conditions of the policy. It was further pleaded that the owner has to prove the validity, fulfillment of the terms and conditions of the policy and has to produce the FC, RC, permit to show that the policy conditions were fulfilled. The age, avocation and income of the claimant and the medical expenses are denied. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter 6 recorded the evidence. The claimant herself was examined as PW-1 and Dr.M.S.Rajesh as PW-6 and got exhibited 380 documents namely Ex.P1 to Ex.P380. On behalf of the respondents, neither any witness was examined nor produced any documents. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.17,91,480/- along with interest at the rate of 6% per annum and directed the insurance company to deposit the compensation amount along with interest. Being aggrieved, these appeals have been filed.
7. The learned counsel for the claimant has raised the following contentions:
7
Firstly, at the time of the accident the claimant was aged about 25 years, she was working in Dharmasthala Gramodhyoga Sangha and was earning Rs.10,000/- per month, but the Tribunal has taken the notional income as only as Rs.6,000/- per month.
Secondly, the Tribunal taking into consideration the evidence of the doctor - PW-6 and Disability Evaluation Form - Ex.P157 and the disability certificate - Ex. P158, has rightly held that the claimant has suffered whole body disability at 67%.
Thirdly, since the claimant has suffered 67% whole body disability, the Tribunal has rightly considered addition of 50% towards future prospects.
Fourthly, the claimant was inpatient for a period of 143 days and she has suffered 67% whole body disability and she has to suffer the disabilities and unhappiness throughout her life, the compensation 8 awarded by the Tribunal under the heads 'pain and suffering' and 'loss of comforts and marital enjoyment' is on the lower side. Hence, he sought for allowing the appeal filed by the claimant and seeking enhancement of the compensation.
8. On the other hand, the learned counsel for the Insurance Company has raised the following contentions:
Firstly, the claimant examined the doctor as PW- 6, who in his evidence has deposed that the claimant has suffered 67% disability to a particular limb and whole body disability has to be assessed at 1/3rd of the limb disability. But the Tribunal is not justified in wrongly assessing the whole body disability at 67%.
Secondly, even though the claimant claims that she was earning Rs.10,000/- per month, she has not produced any documents to establish her income. 9 Therefore, the Tribunal has rightly assessed the income of the claimant notionally.
Thirdly, since the whole body disability comes to 22% and there is no material produced to prove that due to disability claimant was unable to do her regular work, the Tribunal is not justified in considering addition of future prospects.
Fourthly, the compensation awarded by the Tribunal under the heads 'pain and suffering' and 'loss of comfort and marital enjoyment' is on the higher side. Hence, he sought for dismissal of the appeal filed by the claimant and for allowing the appeal filed by the insurance company.
9. Heard the learned counsel for the parties. Perused the original records, judgment and award passed by the Tribunal.
10
10. It is not in dispute that the claimant suffered injuries in the accident occurred due to rash and negligent driving of the offending vehicle by its driver.
Due to the accident the claimant has suffered the following injuries:
(1) Irreducible posterior dislocation of left hip.
(2) Fracture of left proximal tibia bicondylar.
(3) Fracture and sub-total amputation of left big toe and 2nd toe and post- traumatic loss of right big toe nail.
The claimant has examined Dr.Rajesh as PW-6, who, in his testimony has deposed that claimant has sustained permanent disability of 67% to the whole body. As per Ex.P157, in the disability column issued by the doctor, he has stated that disability in respect 11 of mobility is 33%, disability in respect of stability is 40% and additional weightage is 10%. The disability is calculated at 67% using the formula as Total = Stability + Mobility (by combining formula) + Additional Weightage. Taking into consideration Disability Evaluation Form at Ex.P157 and disability certificate at Ex.P158 and considering the injuries suffered by the claimant and the evidence of the doctor, the whole body disability can be assessed at 50%.
In respect of income is concerned, the claimant has not produced any evidence with regard to her income. Therefore, the notional income has to be assessed as per the guidelines issued by the Karnataka State Legal Services Authority. Since the accident has taken place in the year 2012, the notional income has to be taken at Rs.7,000/- p.m. 12 The claimant in her deposition has deposed that she was aged about 27 years at the time of the accident and she was earning Rs.10,000/- per month and due to disability she was unable to do her regular work. In the cross-examination respondents have not elicited any worthwhile from the claimant. Taking into consideration the deposition of the claimant and deposition of the doctor - PW6 and the disability certificate - Ex.P158, I am of the opinion that due to disability she is unable to do her regular work and there is a functional disability. In view of the law laid down by the Hon'ble Apex Court in the case 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, 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 25 years, 40% of her income has to be added towards future prospects and the applicable multiplier is '18'. Hence, the monthly income of the claimant comes to Rs.9,800/- (Rs.7,000 + 40%). Thus, the claimant is entitled to Rs.10,58,400/- (Rs.9,800x12x18x50%) on account of 'loss of future income due to disability'.
Since the income of the claimant is enhanced to Rs.7,000/- per month, the claimant is entitled for compensation of Rs.63,000/- (Rs.7,000x9 months) under the head 'loss of income during laid up period'.
The claimant was treated as inpatient for more than 43 days in the hospital. Hence, the compensation awarded by the Tribunal under the head 14 of 'conveyance and incidental expenses' is enhanced from Rs.20,000/- to Rs.40,000/-.
The compensation awarded by the Tribunal under other heads is just and reasonable.
11. Thus, the claimant is entitled to the following compensation:
As awarded As awarded Compensation under by the by this different Heads Tribunal Court (Rs.) (Rs.) Pain and sufferings 1,00,000 1,00,000 Medical expenses 1,15,000 1,15,000 Attendant and 50,000 50,000 nourishment, Loss of income during 54,000 63,000 laid up period Loss of comforts and 1,00,000 1,00,000 marital enjoyment Loss of future income 13,02,480 10,58,400 Future medical expenses 50,000 50,000 Conveyance and 20,000 40,000 incidental charges Total 17,91,480 15,76,400 The claimant is entitled to a total compensation of Rs.15,76,400/- along with interest at 6% per 15 annum from the date of petition till the date of realization.
The Insurance Company is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of a copy of this judgment.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit is ordered to be transmitted to the Tribunal, forthwith.
The Tribunal is directed to deposit 25% of the amount in Fixed Deposit and remaining amount shall be released to the claimant, after due verification.
Accordingly, both the appeals are disposed of.
Sd/-
JUDGE Cm/-