Karnataka High Court
M/S Oriental Insurance Company ... vs Asif Ali Sayani on 7 January, 2021
Author: Alok Aradhe Rangaswamy
1
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:
4
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
(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
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.
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
