Karnataka High Court

The New India Assurance Co. Ltd vs Sri. Suresh L on 15 December, 2021

Bench: H T Prasad

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 15TH DAY OF DECEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.357 OF 2016(MV)
                     C/W
          MFA CROB No.42 OF 2016(MV)

IN MFA 357/2016
BETWEEN:

THE NEW INDIA ASSURANCE CO. LTD.
T.P. HUB, MAHALAKSHMI CHAMBERS
NO.9, 2ND FLOOR, M.G.ROAD
BANGALORE-01
BY ITS DULY CONSTITUTED ATTORNEY
                                    ...APPELLANT

(BY SRI. RAVISHANKAR C R., ADV.)

AND

1.    SRI. SURESH L
      AGED ABOUT 32 YEARS
      S/O SRI. M. LAKSHMAIAH
      R/O HUNASANAHALLI VILALGE
      BANGARPET TALUK
      KOLAR DISTRICT-56114.

2.    SRI. SHAKTHIVEL M.
      MAJOR
      R/ATNO.301, NEAR BEML
                          2



      RAILWAY GATE, BEML NAGAR
      KGF, BANGARPET TALUK.
                                 ...RESPONDENTS

(BY SRI. K T GURUDEVA PRASAD T., ADV. FOR R1:
NOTICE TO R2 IS D/W V/O DATED: 24.04.2018)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST     THE    JUDGMENT     AND    AWARD
DATED:29.09.2015 PASSED IN MVC NO.518/2013 ON
THE FILE OF THE COURT OF SENIOR CIVIL JUDGE &
PRINCIPAL JMFC & MACT, K.G.F, AWARDING
COMPENSATION OF RS.20,20,125/- WITH INTEREST
@ 9% P.A FROM THE DATE OF PETITION.

IN MFA CROB NO.42/2016
BETWEEN:

SRI SURESH L
S/O M. LAKSHMAIAH
AGED 32 YEARS
R/AT HUNASANAHALLI VILLAGE
BANGARPET TALUK
KOLAR DISTRICT-563114.
                              ...CROSS OBJECTOR

(BY SRI.GURUDEV PRASAD K T., ADV.)

AND

1.    BRANCH MANAGER
      THE NEW INDIAN ASSURANCE CO. LTD.
      T.P. HUB, MAHALAKSHMI CHAMBERS
      1ST FLOOR, M.G. ROAD
      BANGALORE-01.
                            3



2.   SRI. SHAKTHIVEL M.
     MAJOR
     S/O K. MUTHUSWAMY
     R/AT 301, NEAR BEML
     RAILWAY GATE
     BEML NAGAR, K.G.F.
     BANGARPET TALUK-563122.
                                            ...RESPONDENTS

(BY SRI.C.R. RAVISHANKR, ADV.FOR R1:
NOTICE TO R2 IS D/W V/O DATED: 04.06.2019)

    THIS MFA.CROB IS FILED U/O 41, RULE 22 OF
CPC, AGAINST THE JUDGMENT AND AWARD
DATED:29.9.2015 PASSED IN MVC NO.518/2013 ON
THE FILE OF THE C/C SENIOR CIVIL JUDGE,
PRINCIPAL JMFC & MACT, K.G.F PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MFA AND MFA CROB COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                    JUDGMENT

MFA 357/2016 is filed by the Insurance

Company and MFA CROB 42/2016 is filed by the

claimant under Section 173(1) of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act', for

short) being aggrieved by the judgment dated

29.9.2015 passed by the Senior Civil Judge & Prl.,

JMFC, & Motor Accident Claims Tribunal, KGF in MVC

518/2013.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 6.10.2013, the claimant was

proceeding near Hunasanhalli Railway Bridge,

Bangarpet on his motorcycle bearing registration

No.KA-08-Q-8372, at that time, private bus bearing

registration No.KA-08-3290 being driven by its driver

at a high speed and in a rash and negligent manner,

dashed to the vehicle of the claimant. As a result of

the aforesaid accident, the claimant sustained

grievous injuries and was hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he 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 offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claimant himself was

examined as PW-1 and Dr.Deepu was examined as

PW-2 and got exhibited documents namely Ex.P1 to

Ex.P301. On behalf of the respondents, neither any

witness was examined nor any document was

produced. 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.20,20,125/- along with interest at the rate of 9%

p.a. and directed the Insurance Company to deposit

the compensation amount along with interest. Being

aggrieved, the appeal and cross objection have been

filed.

7. The learned counsel for the Insurance

Company has raised following counter contentions:

Firstly, even though the claimant claims that he

was earning Rs.15,000/- per month by doing

plumbing work, he has not produced any documents

to establish his income. In the absence of proof of

income, the monthly income assessed by the Tribunal

at Rs.6,500/- is on the higher side.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

85.9% to lower limb, but he has not assessed the

whole body disability. Considering the nature of

injuries, the whole body disability assessed by the

Tribunal at 50% is on the higher side. Since the

claimant has failed to prove that due to the disability,

he is unable to do his regular work and there is loss of

earning capacity, he is not entitled for future

prospects. But the Tribunal has erred in considering

future prospects at 50%.

Thirdly, the claimant has not undergone any

amputation. The injuries sustained by the claimant will

not come in his way to do his day to day work. He was

treated as inpatient only for 62 days. The

compensation awarded by the Tribunal under 'loss of

income during laid-up period', 'loss of amenities', 'pain

and sufferings' are on the higher side. Further the

compensation awarded by the Tribunal for

nourishment, attendant and conveyance charges are

on the higher side since the same are not based upon

any materials.

Fourthly, the Tribunal is not justified in granting

compensation under the head of 'loss of expectancy of

life' in an injury case and the same is unsustainable.

Fifthly, considering the injuries sustained by the

claimant and considering the age and avocation of the

claimant, the overall compensation awarded by the

Tribunal is excessive.

Sixthly, the interest awarded by the Tribunal at

9% p.a. on the compensation amount is on the higher

side. Hence, he sought for reduction of compensation.

7. The learned counsel for the claimant has

raised the following contentions:

Firstly, even though the claimant claims that he

was working as Plumber and earning Rs.15,000/- per

month, but the Tribunal has taken the notional income

as merely as Rs.6,500/- per month.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered disability of

85.9% to lower limb. There is restriction in

movements of hands and legs. The claimant is a

plumber and due to the disability, he is unable to do

his work. There is 100% functional disability. But the

Tribunal has erred in taking the functional disability at

only 50%. Since there is loss of earning capacity, the

claimant is entitled for future prospects. In support of

his contention, he has relied upon the decision of the

Apex Court in the case of ERUDHAYA PRIYA vs.

STATE EXPRESS TRANSPORT CORPORATION

LTD. 2020' SCC Online SC 601 and in the case of

'PAPPU DEO YADAV vs. NARESH KUMAR AND

OTHERS' AIR 2020 SC 4424.

Thirdly, due to the accident, the claimant has

sustained grievous injuries. He was treated as

inpatient for a period of 62 days. Even after discharge

from the hospital, he was not in a position to

discharge his regular work. He has suffered lot of pain

during treatment. Considering the same, the

compensation granted by the Tribunal under the

heads of 'loss of amenities', 'pain and sufferings' and

other incidental expenses are on the lower side.

Hence, he sought for enhancement of compensation.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant claims that he was aged about 29

years at the time of accident and earning Rs.15,000/-

per month by doing plumbing work. He has not

produced any documents with regard to his 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 2013, the notional income has to be

taken at Rs.8,000/- p.m.

As per wound certificate, the claimant has

sustained degloving crush injury left thigh and head

injury. PW-2, the doctor has stated in his evidence

that the claimant has suffered disability of 85.9% to

lower limb. He has deposed that due the injuries, he is

unable to do his work. He has further deposed as

follows:

Range of motion Left hip: flexion extension arc N=0 to 140 loss is 50%=50/3=16.6 Abduction adduction arc N=0 to 90 loss is 50%=50/3=16.6 Left knee: flexion extension arc N=0 to 125 loss is 72%=72/3=24 Total ROM Loss=24+16.6.(90-24)/90 = 36.1

Hip Joint:

Flexor muscles=40% Loss extensor muscle=40%

Loss abductor muscle=40% Loss abductor muscle=40% Total loss=160/4=40/3-13.3%

Knee joint:

     Flexor muscle = 80%
     Extensor muscle = 20%
     Total 50/3=16.6
     Total   loss   of  muscle  strength    =

16.66+13.33(90-16.66)/90=27.5% Total mobility component is arrived by combining range of motion and muscle strength in the following way=36.1+27.5(90-36.1)/90=52.6

Stability component Walking on plain surface 5% Walking on slope 7% Climing stairs 7% Standing on both legs 3% Standing on the affected leg 9% Squatting on floor 10% Sitting crossed leg 10% Kneeling 10% Taking turns 0% Total = 61%

Combined mobility and stability component+extra points=76.9+9=85.9%"

Therefore, taking into consideration the

deposition of the doctor, PW-2 and injuries mentioned

in the wound certificate, I am of the opinion that the

whole body disability can be taken 60%. The claimant

was a plumber by profession and the disability has

affected his work and there is loss of earning capacity

and hence, the claimant is entitled for future

prospects. In view of the law laid down by the

Hon'ble Apex Court in the case of ERUDAYA PRIYA

(supra) and PAPPU DEO YADAV (supra), the claimant

is entitled for future prospects. 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, addition of 40% of

the income of the claimant towards future prospects

has to be considered. Hence, the monthly income of

the claimant is assessed at Rs.11,200/-

(Rs.8,000+40%). The claimant is aged about 29 years

at the time of the accident and multiplier applicable

to his age group is '17'. Thus, the claimant is

entitled for compensation of Rs.13,70,880/-

(Rs.11,200*12*17*60%) on account of 'loss of future

income'.

The nature of injuries suggests that the claimant

must have been under rest and treatment for a period

of 4 months. Therefore, the claimant is entitled for

compensation of Rs.32,000/- (Rs.8,000*4 months)

under the head 'loss of income during laid up period'.

The claimant was treated as inpatient for more

than 62 days in the hospital and thereafter, has

received further treatment. Considering the nature of

injuries and duration of treatment, the compensation

of Rs.60,000/- awarded by the Tribunal under the

head of 'conveyance, nourishment and attendance

charges' is on the higher side and hence, the same is

reduced to Rs.40,000.

Due to the accident, the claimant has suffered

grievous injuries and also undergone surgery. He has

suffered lot of pain during treatment and he has to

suffer with the disability stated by the doctor

throughout his life. But, however, the compensation

awarded by the Tribunal under the head of 'pain and

sufferings' is on the higher side and hence, the same

is reduced to Rs.75,000/-.

Since it is an injury case, the claimant is not

entitled for compensation of Rs.25,000/- awarded by

the Tribunal under the head of 'loss of expectancy of

life'.

Considering the nature of injuries, the

compensation awarded by the Tribunal under 'medical

expenses', 'loss of amenities' and 'future medical

expenses' are just and reasonable.

10. 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 75,000

Medical expenses 7,38,125 7,38,125 Food, nourishment, 60,000 40,000 conveyance and attendant charges Loss of income during 32,500 32,000 laid up period Loss of amenities 50,000 50,000 Loss of future income 9,94,500 13,70,880

life Future medical expenses 20,000 20,000 Total 20,20,125 23,26,005

11. In the result, both the appeal and cross

objection are allowed in part. The judgment of the

Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.23,26,005/-.

In view of the Division Bench decision of this in

the case of Ms.Joyeeta Bose and others -v-

Venkateshan.V and others (MFA 5896/2018 and

connected matters disposed of on 24.8.2020),

the interest granted by the Tribunal at the rate of 9%

p.a. on the compensation amount is reduced to 6%