Karnataka High Court
Sri Anil Kumar M vs The New India Assurance Company Ltd on 1 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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NC: 2024:KHC:24385
MFA No. 95 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 95 OF 2021 (MV-I)
BETWEEN:
SRI. ANIL KUMAR M
AGEDA BOUT 59 YEARS,
S/O RAMACHAR M,
R/A NO.3091, 4TH MAIN,
4TH CROSS, WATER TANK ROAD,
KUMARASWAMY LAYOUT, 1ST STAGE,
BENGALURU SOUTH,
JP NAGAR, BENGALURU - 560 078.
...APPELLANT
(BY SRI. NAGARAJA REDDY D., ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
NO.9, 2ND FLOOR,
Digitally signed by
VEDAVATHI A K MAHALAKSHMI CHAMBERS,
Location: High MG ROAD, BANGALROE - 560 001.
Court of
Karnataka REPRESENTED BY ITS MANAGER.
2. SRI. MADHUSUDAN REDDY N
AGED ABOUT 58 YEARS,
S/O DASARADHARAMI REDDY N,
R/A NO.50/1, PALACE ROAD,
NO.125, CUNNINGHAM ROAD,
BENGALURU - 560 052.
...RESPONDENTS
(BY SRI. M. P. SRIKANTH, ADVOCATE FOR R1;
R2 SERVED, BUT UNREPRESENTED)
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NC: 2024:KHC:24385
MFA No. 95 of 2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.02.03.2020 PASSED IN MVC NO.711/2019 ON
THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND
ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7,
BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant under Section 173 (1) of the Motor Vehicles Act,1988 (for short, hereinafter referred to as 'MV Act') against the judgment and award dated 02.03.2020 passed in MVC No.711/2019 by the IX Additional Small Causes and Additional MACT, Bengaluru for enhancing the compensation awarded by the Tribunal.
2. Heard the arguments of learned counsel for appellant and learned counsel for respondents.
3. The status of the parties before the Tribunal is retained for the sake of convenience.
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NC: 2024:KHC:24385 MFA No. 95 of 2021
4. The case of the petitioner is that petitioner has filed the claim petition under Section 166 of M.V. Act for claiming compensation for the injuries sustained by him in the road traffic accident dated 05.12.2018. It is alleged by him that on the said day, when he was proceeding on the Motorcycle bearing Reg.No.KA-50-K-5733 in front of BSNL Office Junction, 80 feet road, Indiranagar, a driver of the Car bearing Reg.No.KA-03-ME-5599 drove the same without observing traffic rules and regulations and not showing any signal suddenly opened the Car door and due to which, the claimant dashed to the door and fell down and sustained grievous injuries on vital parts of the body and he was taken to the hospital and he was treated as an inpatient and spent Rs.1,00,000/- towards medical expenses. He was working as Marketing Manager in Ventura Bioceaticals Pvt. Ltd., and earning Rs.46,000/- per month and due to the injury, he lost the income and job. Hence, he has filed the claim petition.
5. Respondent No.1-Insurer has appeared and filed statement of objections by denying the accident in question and also contended that the driver of the vehicle did not have any valid licenses at the time of the accident. The vehicle was -4- NC: 2024:KHC:24385 MFA No. 95 of 2021 insured with the respondent No.1 in favour of respondent No.2. Hence, prays for dismissal of claim petition.
6. Respondent No.2 has also filed objections by denying the nature of accident. However, it is contended that vehicle was insured with the respondent No.1. Hence, prays for dismissal of this petition.
7. Based upon the pleadings, the Tribunal has framed the following issues:-
1. Whether the Petitioner proves that he has sustained injuries on account of road traffic accident took place infront of BSNL office, 80 feet road, Indiranagar, Bengaluru due to rash and negligent driving of the driver of the Car bearing registration No.KA-03-ME-5599 dated 05.12.2018 at about 4.20 a.m., as alleged in the petition?
2. Whether the Petitioner is entitled for compensation? is so, how much and from whom?
3. What Order or Award?
8. The claimant to prove his case, examined himself as P.W.1 and got marked 20 documents i.e., Exs.P.1 to P.20 and examined Doctor as P.W-2 and got marked two documents i.e., -5- NC: 2024:KHC:24385 MFA No. 95 of 2021 Exs.P.21 and P.22. The respondents have not produced any evidence.
9. After hearing the arguments, the Tribunal has answered issue No.1 in the Affirmative, issue No.2 Partly in the Affirmative and awarded compensation of Rs.2,69,387/- which is as under:-
Heads Amount in Rs.
For pain and sufferings, 50,000-00
mental agony
Actual medical expenses 1,39,387-00
For Special diet and 10,000-00
Conveyance
Loss of amenities 50,000-00
Future medical expenses 20,000-00
TOTAL 2,69,387.00
10. Being aggrieved by the same, the claimant is before this Court.
11. Learned counsel for the appellant has contended that the Tribunal has committed an error in not awarding any compensation towards the loss of future income due to disability. The Doctor was examined and he has given disability certificate stating that the claimant has suffered 23% disability to the whole body and due to the accident, he is unable to -6- NC: 2024:KHC:24385 MFA No. 95 of 2021 attend the work. Therefore, he should be awarded under the head 'loss of income during laid up period' and also contended that the petitioner has left his job and is unable to work. Therefore, he has totally lost the income and the same was not properly considered by the Tribunal. The Tribunal has awarded a sum of Rs.20,000/- towards future medical expenses wherein the Doctor has stated that the claimant requires Rs.60,000/- to Rs.70,000/- for future medical expenses. Therefore, the claimant prays for enhancing the same.
12. Per contra, learned counsel for the respondents supported the judgment and award passed by the Tribunal contending that the petitioner has given oral evidence that he has lost the job but no documents are produced and no employer has been examined before the Court to show that he has lost the job due to the injuries whereas, he is a permanent employee getting salary under various heads i.e., HRA and other allowances. Such being the case, the oral contentions that he has lost the job cannot be accepted and no documents are produced before the Court to prove that he has lost the job and income. The claimant is a permanent employee and he has continued to work in the same company. Such being the -7- NC: 2024:KHC:24385 MFA No. 95 of 2021 case, question of granting any compensation towards 'loss of future income due to disability' does not arise. Hence, prays for dismissal of the appeal.
13. Having heard the arguments and on perusing the records, the point that arises for my consideration is as under:-
Whether the appellant is entitled for the enhanced compensation as prayed for?
14. On perusal of the records, the accident in question dated 05.12.2018 has occurred due to the sudden opening of the door by the driver of the Car bearing No.KA-03-MV-5599 is not in dispute. Charge sheet is also filed against the driver of the Car for the offences punishable under Sections 279 and 338 of IPC. The only contention before this Court is with regard to the quantum of compensation to be enhanced.
15. The petitioner said to be working as a Marketing Manager in a private firm earning Rs.38,720/- per month. The petitioner has contended that he was admitted in the hospital for 6 days and there was a fracture of right tibia and air crack fracture. He has also taken treatment as an out patient and could have taken rest for 1 or 2 months. Therefore, -8- NC: 2024:KHC:24385 MFA No. 95 of 2021 considering the same, I deem it appropriate to consider the laid up period for atleast two months. But the Tribunal has not granted any amount under this head. Therefore, compensation has to be awarded under this head. Hence, an amount of Rs.77,440/- (Rs.38,720/- x 2) is awarded under the head 'loss of income during laid up period'.
16. Towards 'pain and sufferings', the Tribunal has awarded a sum of Rs.50,000/-, which is just and proper and needs no interference.
17. Towards medical expenses, the Tribunal has awarded a sum of Rs.1,39,387/-. Though the respondents' counsel contended that the claimant has got reimbursed the said amount by his company, but the salary certificate of the claimant reveals that towards reimbursement of the medical expenses, there was some deduction in his salary. Such being the case, the question of deducting the medical expenses does not arise. Hence, the petitioner is entitled for the medical expenses as it is.
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NC: 2024:KHC:24385 MFA No. 95 of 2021
18. Towards 'Special diet and Conveyance', the Tribunal has awarded a sum of Rs.10,000/-, which is just and proper and needs no interference.
19. Towards 'loss of amenities', the Tribunal has awarded a sum of 50,000/-. The petitioner has suffered communited fracture of upper end right tibia with medial collateral ligament tear and right knee abrasion, right ankle right leg swelling. Such being the case, there is difficult for him to sit and squat and walk speedily and he cannot stand for long time. Therefore, Rs.50,000/- awarded towards 'loss of amenities' is appropriate and needs no interference.
20. Towards future medical expenses, the Tribunal has awarded a sum of Rs.20,000/-. It is submitted by the learned counsel for the claimant that implants fixed on the leg is still inside and he may require future medical expenses. As per the evidence of Doctor, he requires atleast Rs.60,000 to 70,000/- for removing the implants. Such being the case, awarding Rs.20,000/- by the Tribunal is not correct and therefore, I proceed to award a sum of Rs.50,000/- towards 'future medical expenses'.
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NC: 2024:KHC:24385 MFA No. 95 of 2021
21. Towards 'loss of income due to disability', the Doctor has given evidence that claimant has suffered 23% disability to the whole body. However, the Doctor has not given what is the disability suffered by the claimant to the particular limb in order to come to the conclusion about the total disability to the whole body was 23%. Though he has given some calculations regarding disability but there is no disability as he calculated to the leg. However, in the cross-examination, the counsel for the respondent - insurer has contended that the petitioner has not sustained disability to the whole body. Normally, the Tribunal has to consider 1/3rd of the disability assessed by the Doctor, when the Doctor examined is not a treated Doctor. Such being the case, the Tribunal ought to have considered some disability to the whole body if not 23% disability assessed by the Doctor.
22. Though the counsel for the petitioner contended that the petitioner has lost his job prior to giving evidence due to the disability suffered by him, the respondents' counsel has brought to the notice of this Court that the petitioner is a permanent employee as Marketing Manager and as per employment terms and conditions, for leaving the job he has to give notice or for terminating him, the Company is required to
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NC: 2024:KHC:24385 MFA No. 95 of 2021 give prior notice to the employee. Therefore, mere oral evidence stating that he has lost the job cannot be accepted as there is no positive evidence adduced by the petitioner. Therefore, it cannot be said that he has lost income due to the disability. However, due to the injuries suffered by him, there must be disability for some extent and it may affect the petitioner in future or for any promotions or getting any incentives in his career. Such being the case, looking into the facts and circumstance, I proceed to consider some disability to the whole body even if the petitioner is working or not. Therefore, it is just and appropriate to consider 1/3rd of 23% i.e., the disability assessed by the Doctor, which comes to 7% disability to the whole body. The income of the petitioner is taken at Rs.38,720/-. The petitioner is aged about 58 years and the multiplier applicable is '9'. Hence, an amount of Rs.2,92,723/- (38720 x 12 x 9 x 7/100) is awarded under the head 'loss of income due to disability'.
23. Accordingly, appellant is entitled for compensation as under:-
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NC: 2024:KHC:24385
MFA No. 95 of 2021
Heads Amount in Rs.
Pain and sufferings, mental 50,000-00
agony
Actual medical expenses 1,39,387-00
For Special diet and 10,000-00
Conveyance.
Loss of amenities 50,000-00
Future medical expenses 50,000-00
Loss of laid up period 77,440-00
Loss of income due to 2,92,723-00
disability
Total 6,69,550-00
24. Accordingly, I pass the following:
ORDER i. Appeal is allowed in-part.
ii. The judgment and award dated 02.03.2020 passed in MVC No.711/2019 by the IX Addl. Small Causes and addl. MACT., Bangalore (SCCH-7) is modified; iii. The appellant is entitled for compensation of Rs.6,69,550/- together with interest at 6% per annum from the date of petition till the date of realization. excluding the future medical expenses. iv. Respondents are directed to deposit the award amount within two months from the date of receipt of a copy of
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NC: 2024:KHC:24385 MFA No. 95 of 2021 this order, out of which, the entire enhanced amount is directed to be released to the petitioner.
v. Draw award accordingly.
Sd/-
JUDGE
VS
List No.: 1 Sl No.: 36
CT:SK