Karnataka High Court

Anil Katwe N vs Kaleem Ulla Baig on 13 January, 2021

Author: Alok Aradhe Rangaswamy

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2021

                        PRESENT

         THE HON'BLE MR.JUSTICE ALOK ARADHE

                          AND

     THE HON'BLE MR.JUSTICE NATARAJ RANGASWAMY

            M.F.A. NO.6252 OF 2017 (MV-I)

BETWEEN:

ANIL KATWE. N
S/O NAGARAJ KATWE K.,
AGED ABOUT 27 YEARS,
R/AT NO.152/1,
SARAKKI SUBBAMMA CIRCLE,
1ST PHASE, J.P. NAGAR,
BENGALURU-560078.
                                    ...APPELLANT

(BY SRI. M.V.VISWANATH, ADVOCATE)

AND:

1.     KALEEM ULLA BAIG
       S/O LATE ALLEM ULLA BAIG
       MAJOR
       R/AT NO.53/1, 1ST FLOOR,
       MASJID ROAD, JOLLYMOHALLA,
       MAHALAKSHMIPURAM LAYOUT,
       BENGALURU-560086.

2.     SBI GENERAL INSURANCE CO. LTD.,
       GROUND & FIRST FLOOR,
       RUKMINI TOWER-3-1,
       PLATFORM ROAD/RAILWAY APPROACH ROAD,
                           2




     SESHADRIPURAM,
     BENGALURU-560020.
     REPRESENTED BY ITS
     MANAGER.

3.   SATISH KUMAR MODI
     S/O KISTUR CHAND MODI,
     MAJOR,
     MODI LIFTING TACKLESS, NO.43,
     N.R. ROAD,
     BENGALURU-560002.

4.   BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
     GROUND FLOOR, NO.31,
     TBR TOWER, 1ST CROSS,
     NEW MISSION ROAD,
     NEAR BENGALURU STOCK EXCHANGE,
     BENGALURU-560027.
                              ...RESPONDENTS

(BY SRI. B.PRADEEP, ADVOCATE FOR RESPONDENT NO.2;
SRI. P.B.RAJU, ADVOCATE FOR RESPONDENT NO.4;
SERVICE OF NOTICE TO RESPONDENT NOS.1 AND 3 IS
DISPENSED WITH VIDE COURT ORDER DATED 21.11.2019)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST
THE JUDGMENT AND AWARD DATED 07.06.2017, PASSED IN
MVC NO.2041/2015, ON THE FILE OF THE XIII ADDITIONAL
JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT,
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION      AND   SEEKING    ENHANCEMENT      OF
COMPENSATION.

    THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
NATARAJ RANGASWAMY, J., DELIVERED THE FOLLOWING:
                                     3




                           JUDGMENT

This appeal is filed by the claimant seeking

enhancement of the compensation awarded by the Motor

Accidents Claims Tribunal, Bengaluru (SCCH-15)

(henceforth referred to as the 'Tribunal') in terms of the

Judgment and award in MVC No.2041/2015.

2. Though this appeal is listed for admission, it is

taken up for final disposal with the consent of the learned

counsel for the parties.

3. The appellant herein will henceforth be

referred to as the 'claimant'. Respondent Nos.1 and 2

herein will henceforth be referred to as the 'owner' and

'insurer' respectively of the lorry involved in the accident.

Respondent Nos.3 and 4 herein will henceforth be referred

to as the 'owner' and 'insurer' respectively of the car

involved in the accident.

4. The claim petition discloses that on

08.10.2014, the claimant was riding his motor bike bearing

registration number KA-05-HK-4841 on Bannerghatta main

road. When he reached near Bimal showroom at about

5.00 pm, the driver of the lorry bearing registration

number KA-01-AD-2833 (henceforth referred to as the

'offending vehicle') attempted to overtake the motorcycle

of the claimant from the left side and again swerved to the

right, as a result of which, the claimant was shocked and

a car bearing registration No.KA-01-MH-3298 coming from

the opposite side dashed against the claimant. The

claimant suffered serious injuries and was shifted to Apollo

hospital, Bannerghatta road and was later referred to

Rajshekar Multi speciality Hospital Pvt. Ltd., J.P.Nagar. It is

claimed that a complaint was registered against the driver

of the lorry in Cr.No.77/2014 for the offences punishable

under Sections 279, 337 and 338 of the Indian Penal Code.

The claimant alleged that he had spent a sum of

Rs.20,00,000/- towards his medical expenses. He claimed

that he was employed in a private firm and was drawing a

monthly salary of Rs.15,000/- and as a result of the

accident, he was completely paralysed and had lost the

prospects of earning in future. He also claimed that as a

result of the accident, he had become a paraplegic. He

therefore filed a petition under Section 166 of the Motor

Vehicles Act, 1988 claiming compensation of a sum of

Rs.1,00,00,000/-, alleging composite negligence against

the respective owner and driver of the lorry and the car

involved in the accident.

5. The claim petition was opposed by the insurer

of the lorry who contended that the accident was due to

the negligence on part of the claimant. It contended that

the driver of the lorry had no valid and effective license

and alternatively it contended that the driver of the lorry

was not negligent.

6. The insurer of the car contended that the

accident was due to the negligence on the part of the

driver of the lorry and therefore it was not liable to

indemnify any compensation that may be awarded.

7. The claimant was examined as PW.1 and he

marked exhibits P1 to 16. He also examined two doctors as

PWs.2 and 3 who marked documents at Exs.P17 to P21.

The official of the insurer of the car was examined as RW.1

and official of the insurer of the lorry was examined as

RW.2 and they marked Exs.R1 to R3.

8. The Tribunal considered the documents at

Exs.P1 to P6, which were the records prepared by the

police during the course of their investigation in

Cr.No.77/2014 and held that the accident was due to the

composite negligence on the part of the driver of both the

vehicles i.e., car and lorry involved in the accident.

9. In so far as the claim for compensation is

concerned, the Tribunal noticed from the evidence of

PWs.2 and 3 that the claimant had suffered the following

injuries:

1. Perineal/Scrotal Degloving Injury and open

wound.

2. Abdomen Injury: left kidney laceration, retroperitoneal haematoma.

3. Chest Contusion.

4. Fracture of D12 vertebra spinal injury with paraplegia.

5. Cord compression/Transverse processes fracture multiple.

6. Paraspinal haematoma.

10. It also noticed that the claimant had

undergone treatment at Apollo Hospital and later at

Rajshekar Multi-speciality hospital and the Tribunal noticed

that the claimant was admitted as an inpatient for 18 days

and had undergone treatment with exploration,

sphincterotomy, closure of wounds and colostomy on

09.10.2014. PWs.2 and 3 deposed that the claimant

underwent treatment on 04.12.2014 and was treated for

urinary tract infection at Rajshekar Multi Speciality

hospital. He also underwent skin grafting on 22.02.2015.

The Tribunal noticed the photographs of the injuries

sustained by the claimant as per Ex.P14. Though the

claimant claimed that he had spent Rs.6,81,787/- towards

his treatment, the Tribunal disallowed a sum of

Rs.1,12,100/- on the ground that there were no

corresponding prescriptions and that there was no

document to show that the claimant had undergone

physiotherapy. The Tribunal disallowed the ambulance

charges of Rs.14,100/- as claimant had not examined the

author of such documents. It also disallowed a sum of

Rs.21,000/- which was the bill issued by the Association of

people with disability.

11. It also disallowed the claim for a motorized

wheel chair as per Ex.P12 on the ground that Ex.P12 was

not a bill but a quotation which was not signed. The

Tribunal noticed from the evidence of PWs.2 and 3 that the

claimant had sustained paraplegia due to fracture of D12

and L1 vertebrae and that he suffered from disturbed

bowel and bladder habit. The Tribunal discarded the

evidence of PWs.2 and 3 that the claimant had suffered a

permanent disability of 100% and assessed his disability at

50% to the whole body. It also held that the claimant had

not marked any document to show his employment status

and that he was earning Rs.15,000/- per month. Hence, it

considered the notional income of the claimant at

Rs.6,000/- per month and taking into consideration the

age of the claimant as 25 years awarded the following

compensation:

      Heads      under       which             Amount
      compensation is awarded                (in Rupees)
      Pain and suffering                      50,000/-
      Loss of laid up period                  12,000/-
      (Rs.6,000 x 2 = 12,000/-)
      Medical Expenditure                    5,70,000/-
      Future Medical Expenditure              25,000/-
      Loss of Future Income                  6,48,000/-
      Towards         diet        and          20,000/-
      conveyance
      Loss of amenities                        50,000/-
      Attendant charges during                5,400/-
      the Hospitalization period
      300x18
                   Total                13,80,400/-

12. Aggrieved by the quantum of compensation

awarded by the Tribunal and claiming it inadequate, the

claimant has filed the present appeal.

13. We have heard the learned counsel for the

claimant as well as the insurer of both the vehicles. We

have perused the records of the Tribunal and its judgment

and award.

14. The claim of the claimant is that he had

suffered a perineal scrotal degloving injury with open

wound and that he had suffered a fracture of D12

vertebra and a spinal cord compression. He had also

suffered para spinal haematoma and that he was

paraplegic and he was unable to control his urinary and

bowel movements. The claimant contended that the

Tribunal committed an error in disallowing medical

expenses and the cost of a motorized wheel chair. He also

contended that the Tribunal ought to have assessed the

notional income of the claimant at a sum of Rs.8,500/- per

month as per the chart prescribed by the Karnataka State

Legal Services Authority. He also contended that since the

claimant was paraplegic, he had suffered total loss of

income during the laid up period, which was from the date

of the accident till the date judgment was pronounced and

therefore, The Tribunal ought to have awarded just

compensation. He also contended that due to the injury to

his perineal scrotum as well his paraplegic condition, he

had lost the amenities of life and also lost future prospects

of marriage. He contended that the Tribunal must have

considered the disability of the claimant at 100% and

ought to have awarded the compensation by treating the

disability of the claimant at 100%.

15. We have given our anxious consideration to

the arguments canvassed by the learned counsel for the

parties. The Tribunal had held that the accident was due to

the composite negligence by the respective driver of the

lorry and the car and this finding of the Tribunal is not

contested by either of them.

16. The claimant claimed that he was employed in

a private firm and was earning Rs.15,000/- per month.

However, he did not place any material proof regarding his

employment and also did not place on record any proof

regarding his income. As rightly contended by the learned

counsel for the claimant, the chart prescribed by the

Karnataka State Legal Services Authority indicates notional

compensation of sum of Rs.8,500/- and thus, the notional

income of the claimant could be considered at a sum of

Rs.8,500/- per month. In so far as the disability suffered

by the claimant is concerned, the claimant was admitted at

Apollo Hospital and he sought discharge against medical

advice and got himself admitted at Rajashekar Multi

Speciality Hospital. The claimant was admitted at

Rajshekar Multi Speciality Hospital on 09.10.2014, where

opinion was sought internally from the Orthopaedic section

regarding the T12 compression fracture suffered by the

claimant. The M.R.I of Thoraco Lumbar Sacral Spine was

conducted which revealed an anterior wedge compression

of T12 vertebral body. It was also found that there was a

fracture through the upper base of the left pedicle and

fracture to the T11 and T12 articular pillars and to the left

transverse process. The discharge summary Ex.P10

revealed that there was no surgical intervention as there

was no significant displacement of fracture. The claimant

underwent sphincterotomy by mobilizing the cut ends of

the wound and colostomy on 09.10.2014 and injury

around the root of the penis was explored and the scrotal

tear was repaired. The urologist indicated a left renal

laceration over the medial upper portion which required a

special renal management. The claimant was stabilized

and shifted to the ward and thereafter discharged and

advised to continue physiotherapy. The PWs.2 and 3 who

were examined were not the Doctors who treated the

claimant. The evidence of PW.2 does not indicate that the

claimant had lost motor power in the lower limb which was

suggestive of paraplegia. The evidence of PW.3 indicates

that he was also not the Doctor who treated the claimant.

He claimed that based on the oral statement of the

claimant and the discharge summary, he had deposed that

the claimant had suffered injuries due to an accident and

was admitted as an inpatient at St. John's Medical College

in the Department of Physical Medicine and Rehabilitation

between 06.01.2015 to 08.02.2015. He did not consult

the Doctors who treated the claimant prior to assessing

the disability of the claimant. He claimed based on a

physical examination of the claimant, he had concluded

that there was no movement in the lower limbs of the

claimant. Ex.P17 is a registration slip issued by the out-

patient department of the Bowring and Lady Curzon

hospital which indicates that the claimant had visited the

hospital for assessment of disability and that the claimant

was wheelchair bound. The Doctors who examined him

after conducting a radiological examination noticed that

the claimant had suffered paraplegia due to injury to D12

vertebra and dislocation and distressed bowel and bladder

habits. The Doctor found that the claimant was unable to

sit properly as he had suffered ankylosed (rigidity/

stiffness) in the right hip. There are corresponding X-ray

films. The examination done on 28.09.2016 at Bowring

and Lady Curzon Hospital (Ex.P19) discloses that the

claimant had suffered from paraplegia due to fracture of

T12 vertebra and laceration of the kidney and compression

of the spinal cord. It also indicates that the claimant was

treated at St.John's Medical College on 06.01.2015 and

discharged on 07.02.2015 in the department of Physical

Medicine and Rehabilitation. Ex.P.20 is the report of CT

scan of the dorsal spine which indicates a posterior

translocation of T12 vetebra over T11 with cord

indentation with fracture of posterior elements.

17. The learned counsel for the claimants placed

on record the guidelines issued by the Government of

India for Assessment of Physical Impairment in

Neurological conditions based on the expert group meeting

on disability evaluation of National Seminar on Disability

Evaluation and Dissemination. The learned counsel brought

to our notice Table V of the said guidelines which relates to

motor system disability wherein the disability rate in

respect of paraplegia is fixed at 100%. Though it is

claimed that the claimant had suffered paraplegia, there is

no clear evidence in this regard. However, there is

evidence which indicate that the claimant had suffered

injury to T12 vertebra with ossification of the right hip

joint. Having regard to the fact that the claimant was

wheelchair bound from 08.10.2014 till September 2016

when he was examined at Bowring and Lady Curzon

hospital, it is quite probable that the claimant suffered

from locomotor disability in his lower limbs. Hence, the

disability suffered by the claimant would be assessed at

75% to the whole body. The photographs at Ex.P14

indicate that the claimant had suffered injury on his

private parts which were managed through

sphincterotomy. The claimant also underwent a standard

sigmoid colostomy for evacuation of the faeces. Thus, the

Tribunal ought to have considered the injury sustained

while awarding the compensation towards the loss of

amenities.

18. In addition, the Tribunal committed an error in

disallowing a sum of Rs.1,12,100/- of which medicines

worth Rs.77,000/- was towards dressing and

physiotherapy charges. The Tribunal could not have

disallowed a sum of Rs.77,000/- on the ground that there

was no documentary evidence to show that he had

obtained physiotherapy. The fact that the claimant was

advised physiotherapy is evident from Ex.P10 - discharge

summary. Likewise, the claimant was entitled to

ambulance charges of Rs.14,000/- having regard to his

physical condition and the Tribunal could not have rejected

it on the ground that the claimant had not examined the

author of the documents.

19. In so far as the sum of Rs.21,000/- paid by the

claimant to the Association of People with Disability to

undergo physiotherapy, the same cannot be disbelieved as

the claimant had purchased a walker and had undertaken

physiotherapy. Therefore, the Tribunal could not have

rejected the expenses. Hence, the claimant was entitled to

reimbursement of entire medical bills of a sum of

Rs.6,81,787/-. The claimant had placed on record, Ex.P12

which is a proforma invoice dated 21.12.2015 for an

innovative power wheelchair with a stair climbing mode,

which would cost a sum of Rs.10,50,000/-. No doubt this is

proforma invoice but in view of the paraplegic condition of

the claimant, the Tribunal ought to have considered the

need of the claimant for a power wheel chair. The insurer

had not disputed the value of the power wheelchair with a

stair climbing mode and therefore, the Tribunal ought to

have awarded the value of the power wheelchair which in

the present day would cost a sum of Rs.3,00,000/-.

20. In view of the above, the compensation

awarded by the Tribunal needs to be redetermined as

follows:

  Heads under which compensation is               Amount in
              awarded                              Rupees
 Pain and suffering                                1,00,000/-
 Loss of income during the laid up period          2,04,000/-
 @Rs.8500/- x 24 months
 Medical expenses                                  6,81,787/-
 Future medical expenses                            50,000/-
 Loss of income due to permanent                  13,77,000/-
 disability at 75%
 (Rs.8500 x 12 x 18 x 75/100)
 Cost of nourished food, conveyance                 20,000/-
 charges
 Loss of amenities and loss of marriage            1,50,000/-
 prospects
 Attendant charges at Rs.150 per day for           1,08,000/-





 24 months
 (Rs.150x24x30)
 Cost of motorized wheelchair                       3,00,000/-
                      Total                    29,90,787/-

21. In view of the above, the appeal is allowed in

part and the impugned Judgment and Award passed by

the Tribunal in MVC No.2041/2015 is modified and the

compensation awarded by the Tribunal is enhanced from

Rs.13,80,400/- to Rs.29,90,787/-. The enhanced

compensation shall carry interest at the rate of 8% per

annum from the date of the claim petition till the date of

realization.

22. The respective insurer of the offending vehicles

registration Nos.KA-01-AD-2833 and KA-01-MH-3298 shall

pay the compensation in equal portions along with interest

at the rate of 8% per annum from the date of the claim