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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY
M.F.A. NO.6423 OF 2014 (MV-I)
C/W
M.F.A. NO.1369 OF 2015 (MV-D)
IN MFA NO.6423/2014:
BETWEEN:
M/S ORIENTAL INSURANCE COMPANY LIMITED,
DO NO.III, 48, CHURCH STREET,
BANGALORE-560001.
NOW REPRESENTED BY ITS
REGIONAL OFFICE,
NO.44/45, LEO SHOPPING COMPLEX,
RESIDENCY ROAD,
BANGALORE-560025,
REP.BY ITS AUTHORIZED SIGNATORY.
... APPELLANT
(BY SRI. B.C.SHIVANNEGOWDA,
SRI. A.M.VENKATESH, ADVOCATES)
2
AND:
1. ASIF ALI SAYANI,
S/O ANWAR ALI SAYANI,
AGED ABOUT 27 YEARS,
R/AT NO.15, RAKKE D.PARADISE,
FRAZER TOWN,
BANGALORE.
2. SYED AFZAL,
K.V.2433-1,
RAJAPPA BLOCK,
'C' CROSS, D.J.HALLI,
BANGALORE-560045.
... RESPONDENTS
(BY SRI.MOHAMMED SHERIFF, ADVOCATE FOR R1;
VIDE ORDER DATED 15.10.2015 NOTICE TO R2
DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED:09.04.2014
PASSED IN MVC NO.1318/2009 ON THE FILE OF THE XI
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BANGALORE, AWARDING COMPENSATION OF
RS.56,88,837/- WITH INTEREST @6% P.A. FROM THE
DATE OF PETITION TILL REALIZATION AND ETC.,
IN MFA NO.1369/2015:
BETWEEN:
MR.ASIF ALI SAYANI,
SON OF ANWAR ALI SAYANI,
AGED 27 YEARS,
3
RESIDING AT NO.15,
RANKA D.PARADISE, FRAZER TOWN,
BANGALORE.
... APPELLANT
(BY SRI. MOHD. SHARIFF, ADVOCATE)
AND:
1. THE DIVISIONAL MANAGER,
THE ORIENTAL INSURANCE CO.LTD.,
D.O.NO.3, NO.48, CHURCH STREET,
BANGALORE-560001.
2. SYED AFZAL,
K.V.2433-1, RAJAPPA BLOCK,
'C' CROSS, DJ HALLI,
BANGALORE-560045.
... RESPONDENTS
(BY SRI. B.C. SHIVANNEGOWDA AND
SRI. A.M.VENKATESH ADVOCATES FOR R1;
VIDE ORDER DATED 24/6/2015 NOTICE
TO R2 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
AGAINST THE JUDGMENT AND AWARD DATED:9.4.2014
PASSED IN MVC NO.1318/2009 ON THE FILE OF THE 11TH
ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES,
BANGALORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.,
THESE APPEALS COMING ON FOR HEARING THIS
DAY, NATARAJ RANGASWAMY, J., DELIVERED THE
FOLLOWING:
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JUDGMENT
MFA No.6423/2014 is filed by the insurer challenging the quantum of compensation awarded by the Court of Small causes, Bengaluru City in MVC No.1318/2009 in terms of the Judgment and Award dated 09.04.2014.
2. MFA No.1369/2015 is filed by the claimants in the aforesaid MVC No.1318/2009 seeking enhancement of the compensation awarded by the Tribunal.
3. The parties The parties shall henceforth be referred to as they were arrayed before the Tribunal.
4. The claim petition discloses that the claimant, then aged 22 years was employed as a Manager (Accounts) in a Private Establishment and was earning Rs.10,000/- per month. On 13.12.2008, at about 3.30 am., when the claimant was taking food near a car bearing registration No.KA-04-MA-899 which was parked on the left side of the Broadway road, in front of Hotel Savera, a Mini Truck bearing registration No.GA-01-U-758 5 (hereinafter referred to as the 'offending vehicle') was driven at a high speed and was moving rashly, rear ended the car. Due to the impact, the claimant suffered serious injuries and was shifted to Mahaveer Jain Hospital, where he was treated as an inpatient. A complaint was lodged with the Commercial Street Traffic Police Station, who registered Crime No.112/2008 against the driver of the offending vehicle. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of a sum of Rs.50,00,000/- from the owner and the insurer of the offending vehicle.
5. The insurer contested the claim petition and denied the averments of the petition. It contended that the disability did not disabled the claimant from pursing his avocation. It also contended that the accident occurred due to the negligence on the part of the claimant in having parked his vehicle at a wrong place where there was heavy traffic and that he had therefore, contributed to the 6 accident. Based on these rival contentions, the claim petition was set down for trial.
6. Before the Tribunal, the claimant was examined as PW1 and the doctors who treated the claimant were examined as PWs.2 and 4. Father of the claimant was examined as PW5 and the Manager of the Medical Record Department at Mahaveer Jain Hospital was examined as PW6 and another doctor was examined as PW7 and marked documents Exs.P1 to P47. The insurer did not lead any evidence but marked a copy of the policy of insurance as Ex.R1 by consent.
7. The Tribunal noticed from the complaint lodged as per Ex.P1 and the sketch of the scene of the accident as Ex.P3 and the IMV report at Ex.P5 and the charge sheet at Ex.P9 held that the accident was due to the rash and negligent driving by the driver of the offending vehicle. 7
8. As regards the claim for compensation is concerned, the Tribunal noticed that from Ex.P2 that the claimant had suffered the following injuries:
(1) Injury to the cervical spine with Quadriplegia declined sensation, bleeding ear left anterior displacement of C5 over C6 vertebra with dislocation and cord contusion, retro-listhesis of C5 over C6.
(2) Injury to the right foot with laceration
(3) Degloving injury to the right foot
(4) Fracture of mid shaft of the clavicle
(5) Right Scapular fracture
(6) Fracture lateral malleolus
(7) Ear bleeding, pinna suturing done and three
stitches put to cover the exposed cartilage
9. The claimant was admitted at Mahaveer Jain Hospital as an inpatient between 13.12.2008 to 18.01.2009. As the injuries were serious, he was shifted to ICU. MRI was advised and it shows the following:
1. Anterior displacement of C5 over C6 due to C5-
C6 facet joint dislocation bilaterally and locking on right side.
2. Cord contusion and oedema at C4 to C7 level 8
3. Traumatic posterior central herniation of C5-C6 Disc.
10. The claimant underwent four surgeries on his spinal cord and on his limbs. He was admitted at Santosh Hospital on 24.02.2009 with the history of bleeding through urethra and was discharged on 02.03.2009. He was thereafter admitted at BGS Global Hospital, Bengaluru on 02.08.2009 to undergo stem cell therapy for the injury to the spinal cord as he had lost sensitivity in his lower chest, abdomen and lower limbs and had lost bowel and bladder control. He underwent bone marrow aspiration on 03.08.2009 which was injected at multiple sites of the spinal cord. He was again admitted on 23.05.2010 at BGS Global Hospital, Bengaluru for treatment of injury to C5-C6 and discharged on 24.05.2010. Later he was admitted on Rajah Ayurvedic Hospital, Kerala on 22.07.2010, where he underwent long session of ayurvedic treatment and discharged on 18.08.2010. PW2 was the doctor who treated the claimant at Mahaveer Jain Hospital and in his 9 evidence before the Tribunal, deposed that the injuries sustained by the claimant, in his opinion were all grievous in nature. PW3 was the Neuro Surgeon who operated the claimant on cervical spine and he deposed that the claimant was a quadriplegic as there was no movement below the C5 level and sensation below the T5 level. This witness conducted a repeat MRI on the cervical spine on the claimant on 23.03.2009 which indicated damage to the spinal cord, which in his opinion was permanent in nature.
He also deposed that the claimant had to undergo change of catheter once in 30 days to prevent urinary infection. PW6 was the Manger of BGS Global Hospital who placed on record the outpatient file maintained as per Ex.P45 and the inpatient record at Ex.P46. PW7 deposed about the petitioner undergoing stem cell transplantation on 03.08.2009 and 23.05.2010. The OPD record of the claimant was marked as Ex.P47. In view of the medical evidence on record and the vegetative state in which the claimant had relapsed, the Tribunal felt that the disability was permanent and total.
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11. The father of the claimant was examined as PW5 who deposed that the claimant was employed as an Accounts Manager with Smt.Kantha, Chartered Accountant and he was drawing a sum of Rs.10,000/- as per the salary certificate at Ex.P31. The Income Tax Returns of the claimant as per Ex.P32(a) for the Assessment Year 2007-08 indicated the income of the claimant as Rs.1,04,150/-. Thus, after deducting tax of R.608/- the annual income of the claimant was Rs.1,03,542/- and the monthly income was therefore Rs.8,626/-. The Tribunal noticed the evidence of the doctors who deposed that due to the injuries sustained by the claimant, he had lost sensation below the nipple to the abdomen and below the abdomen and therefore, he had no control over his bowel and bladder and could not take care of himself but had to be under the constant care of an attendant. The Tribunal which noticed the above medical evidence held that the claimant was totally incapacitated. It therefore, held that the loss of income during the period of treatment commenced from 13.12.2008 till 05.04.2014 which was 11 the date of the Judgment. The Tribunal also noticed that the claimant had spent a sum of Rs.9,18,935/- towards his treatment at various hospitals and also a sum of Rs.2,28,820/- towards the cost of physiotherapy. In so far as the 'loss of future income' is concerned, it held that the claimant had suffered 100% disability and relied upon the Judgment of the Apex Court in the case of Kavita Vs. Deepak and others reported in AIR 2012 SC 2893 and held that the claimant was suffering from 90% disability to the whole body. It also noticed that the claimant had lost the prospects of marriage and had also lost the opportunity of further education as he had completed his Chartered Accountancy Intermediate Course in the year 2007 and had enrolled for Articleship. The Tribunal noticed that he had completed a program in Information Technology Training from the Institute of Chartered Accountants India and that the claimant was scheduled to take up AICPA examination as a Certified Public Accountant from the Colorado State Board of Accountancy, the United States of America on 10.01.2009 for which he 12 had obtained his admission ticket and also visa. Hence, the Tribunal held that the accident had cut short a brilliant carrier of the claimant. It also took note of the expenses incurred for the equipments purchased for the benefit of the claimant as well as the future medication, in view of the evidence of the doctors who proposed that the claimant had to undergo frequent physiotherapy and replacement of catheters and adult diapers etc.,
12. Taking a holistic view of the injuries sustained and the mere vegetative state into which the claimant had collapsed due to the accident, the Tribunal awarded the following compensation:
Heads under which Amount in
compensation awarded Rupees
Pain and suffering 1,50,000
Loss of income during treatment period 5,49,188
Medical expenses 9,18,935
Physiotherapy expenses already 2,28,820
incurred
Loss of future earning 16,76,894
Loss of future amenities and 1,00,000
unhappiness
Attendant charges 7,68,000
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Loss of marriage prospects 25,000
Loss of education 50,000
Conveyance, food and nourishment etc., 1,00,000
Purchase of equipments 1,50,000
Future medication 9,72,000
Total 56,88,837
13. Though the claimant had sought for
compensation of Rs.50,00,000/-, yet the Tribunal found that the claimant was entitled to more than a sum of Rs.50,00,000/- and relied on the Judgment of the Apex Court in Rajesh and Others Vs. Rajbir Singh and Others reported in 2013 ACJ 1403, to grant higher compensation, which in its opinion was just and proper.
14. In so far as the liability to pay the compensation is concerned, it held that the insurer of the offending vehicle was liable to pay the compensation since the offending vehicle was covered by a policy of insurance issued by it.
15. Feeling aggrieved by the quantum of compensation awarded by the Tribunal, the insurer has 14 filed MFA No.6423/2014 and claimed that the Tribunal committed an error in holding that the driver of the offending vehicle was guilty of negligence and was responsible for the accident. It is also contended that the claimant could not be earning any income when he was doing his Articleship with the Chartered Accountant and therefore, contended that the Tribunal could not have treated the income of the claimant at Rs.8,626/- per month. It is also contended that the Tribunal could not have considered the disability of the claimant at 90%. Further, it claimed that the claimant was not entitled to 'loss of income during the laid up period' commencing from the date of accident till the date of Judgment and contended that once the Tribunal had awarded compensation treating the claimant as a quadriplegic, the question of granting compensation for loss of income during the period of treatment would amount to double payment. Likewise, the insurer disputed the entitlement of the claimant for 'future medical expenses' and 'attendant charges', 'purchase of equipments', cost of equipments 15 purchase for the well being of the claimant etc., It also claimed that the Tribunal could not have awarded interest on the 'future medical expenses' and 'future earnings'. It also claimed that the Tribunal ought not to have awarded more than what was claimed by the claimant.
16. Per contra, the claimant also sought for enhancement of compensation claiming that the Tribunal committed an error in awarding a meager amount of compensation towards 'loss of amenities', 'loss of marriage prospects', 'loss of education'. It was also contended that the Tribunal ought to have considered the physical disability of the claimant as total functional disability, since the claimant had become a paraplegic and was dependant on attendants and therefore, the Tribunal ought to have awarded compensation by considering the disability of the claimant at 100%. Further, it is contended that the Tribunal committed an error in awarding a sum of Rs.2,000/- per month as the attendant charges and claimed that the claimant had to engage a male nurse for 16 cleaning the claimant at a cost of Rs.15,000/- per month and contended that a sum of Rs.57,60,000/- was needed to bear the expenditure for employing a male nurse during the rest of his life.
17. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties. We have also perused the voluminous record of the Trial Court as well as its Judgment and Award.
18. It is well settled that the Tribunal is not bound to award compensation only to the extent claimed, for the purpose of Section 166 of the Motor Vehicles Act is to grant just and fair compensation. The Apex Court in Sanobanu Nazirbhai Mirza Vs. Ahmedabad Municipal Transport Service reported in 2013 (16)SCC 719 held that in appropriate cases where from the evidence brought on record, if the Tribunal considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award, subject however that such award should not be fanciful. Thus, the claim of the 17 insurer that the Tribunal committed an error in awarding more compensation than what was claimed is rejected.
19. The nature of the injuries suffered by the claimant which is evident from the deposition of the doctors who treated the claimant leaves no doubt that the claimant is now a paraplegic and therefore, he has suffered 100% functional disability leading to a near vegetative state. The Apex Court in Dixit Kumar and Another Vs. Om Prakash Goel reported in 2017 SC 2943 has held that in cases of total functional disability, the claimant is entitled to pecuniary and non pecuniary compensation which should be determined on the basis that the claimant had lost his ability to earn income and by applying the appropriate multiplier. The Apex Court in the case of Mr.D.Hattangadi Vs. Pests Control (India) Pvt. Ltd., and others reported in 1995 (1) SCC 551 had set out the computation of pecuniary and non pecuniary damages taking into account different circumstances in respect of a 18 victim of a road traffic accident who had suffered total disability and paraplegia before the waist.
20. In Kajal Vs. Jagadish Chand and others reported in 2020 (4)SCC 413, the Apex Court considered the case of a bright young girl of tender age who had suffered total disability in an accident and held that she was entitled to attendant charges for life and awarded the cost of two attendants @ Rs.5000/- each by applying maximum multiplier. It also awarded compensation under non pecuniary heads.
21. Applying the principles in the aforesaid decisions to the case on hand, it is evident that the claimant was a bright student who had a formidable chance of scoring big on his professional front. The medical evidence on record discloses that the claimant had suffered disability to the extent of 90% and the claimant has lost sensitivity below the abdomen and has no control over his bowel and urine. The claimant has also suffered serious injuries on his legs which is evident from the 19 photographs placed on record as well as the medical records. Hence the functional disability caused by the accident has to be considered at 100%. There is physical evidence on record in the form of Income Tax Returns, which indicates that the claimant was earning a sum of Rs.8,626/- per month. Having regard to the near vegetative state into which the claimant had collapsed, he has lost the 'loss of future prospects' also which at any rate should be not less than 40% of the actual income of the claimant. In view of the decision of the Apex Court in the case of Kajal Vs. Jagadish Chand (supra), the claimant was entitled to attendant charges at the rate of Rs.5000/- per month and assuming that the claimant would have a life expectancy of 50 years due to his present condition, the claimant is entitled to the 'attendant charges' during his entire life. In addition, he is also entitled to adequate compensation towards 'loss of marriage prospects', 'loss of education', 'loss of amenities', 'future medical expenses' etc., While granting compensation, this Court has taken care to ensure that the amount if deposited in any interest 20 earning fixed deposit, should generate enough amount to take care of the needs of the claimant for the rest of his life. Hence, the compensation awarded by the Tribunal deserves to be enhanced as follows:
Heads under which Amount in
compensation awarded Rupees
Pain and suffering 3,00,000
Medical expenses 9,18,935
Physiotherapy expenses 2,28,820
Loss of amenities 3,00,000
Attendant charges 10,80,000
(Rs.5,000 p.m x 12 x 18)
Loss of marriage prospects 5,00,000
Loss of educational prospects 5,00,000
Conveyance, nourishment and diet etc., 1,00,000
Expenses incurred for purchase of 1,50,000
equipments
Future medication, physiotherapy, cost 9,72,000
of catheter, diapers etc.,
Loss of future earning 26,09,107
(Rs.8,628+40% of Rs.8,628/-x12x18)
Total 76,58,862
22. The appeal filed by the insurer is dismissed and the appeal filed by the claimant is allowed in part. The claimant is entitled to a total compensation of a sum of Rs.76,58,862/- payable by the insurer along with 21 interest at the rate of 6% per annum from the date of claim petition till the date of realization.
23. The insurer is liable to deposit the enhanced compensation with interest as ordered within one month.
24. Upon such deposit, 20% of the amount shall be released to the claimant and remaining shall be kept in the Fixed Deposit in the name of the claimant in any nationalized bank for a period of 10 years and the claimant shall be entitled to draw interest.
Sd/-
JUDGE Sd/-
JUDGE GH