Smt Hithaishi vs Sri K M Asim
2021 Latest Caselaw 2084 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 2ND DAY OF JUNE 2021

                        PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                          AND

THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              M.F.A. NO.1163 OF 2020 (MV-I)
BETWEEN:

SMT. HITHAISHI
W/O JAGADEESH K B
D/O LOKESHWARAIAH M S
AGED ABOUT 30 YEARS
RESIDING AT "NANDANA"
3RD CROSS, 4TH MAIN
JAYANAGARA EAST
TUMAKURU-572102.

ALSO RESIDING AT
NO.B 211, RAINBOW WATERFORNT APARTMENT
UTTARAHALLI MAIN ROAD
OPP. UTTARAHALLI LAKE
SUBRAMANYAPURA
BENGALURU-560061.
                                              ... APPELLANT
(BY SMT/MS. ANUSHA NANDISH, ADV.,)

AND:

1.     SRI. K.M. ASIM
       S/O K A RASHID
       AGED ABOUT 38 YEARS
       RESIDING AT HAFEEZA MANZIL
       V B ROAD, MAPLE, UDUPI TALUK
       UDUPI DISTRICT-576103.
       (R C OWNER OF THE ASHOK LEYLAND
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      TRUCK/LORRY BEARING REG NO.KA-20-D-2578).

2.    THE MANAGER
      RELIANCE GENERAL INSURANCE COMPANY LTD.,
      OFFICE AT 570, NAIGUM CROSS
      NEXT TO RAYAL
      INDUSTRIAL ESTATE
      WADALA (W)
      MUMBAI-400031.
                                        ... RESPONDENTS
(BY SRI. H.C. LINGARAJU, ADV., FOR R2
         R1 SERVED)
                             ---
      THIS M.F.A. IS FILED UNDER SEC.173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 22.11.2019,
PASSED IN MVC NO.803/2016, ON THE FILE OF THE VI-
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:


                             JUDGMENT

This appeal under Section 173(1) of the Motor Vehicles

Act, 1988 (hereinafter referred to as 'the Act' for short) has

been filed by the claimant seeking enhancement of the

amount of compensation, against the judgment dated

22.11.2019 passed by the Motor Accident Claims Tribunal

(hereinafter referred to as 'the Tribunal' for short).

2. Facts leading to filing of this appeal briefly stated

are that on 06.02.2016, the claimant - Hithaishi was

proceeding in a car bearing registration No.KA-06-N-207.

When he reached near Rayarapalya Gate, a lorry bearing

registration No.KA-20-D-2578 which was being driven by its

driver in rash and negligent manner, dashed against the car

in which the claimant was traveling from the hind side. As a

result of the aforesaid accident, the claimant sustained

grievous injuries and was immediately given first aid at

Adithya Nursing Home, Tumakuru and thereafter was shifted

to BGS Hospital, Bangalore for further treatment where the

claimant was an inpatient for 23 days from 06.02.2016

to24.02.2016, 03.03.2016 to 05.03.2016 and on 09.12.2016.

3. The claimant thereupon filed a petition under

Section 166 of the Act inter alia on the ground that the

claimant was admitted to BGS Hospital, Bangalore, where

she took treatment as inpatient for a period of 23 days. It is

also pleaded that the claimant has spent more than

Rs.20,00,000/- towards medical expenses. It was also

claimed that the claimant was earning Rs.30,000/- from

working as an engineer at Northern Trust Operating Services

Pvt. Ltd, Bangalore and due to the impact of the accident,

the claimant is unable to carry on with the work as before. It

was also pleaded that the accident took place on account of

the rash and negligent driving of the driver of the offending

lorry. The claimant claimed compensation to the tune of

Rs.2,00,00,000/- along with interest.

4. The respondent insurance company appeared

through their counsel and filed separate written statement,

inter alia, in which the mode and manner of the accident was

denied. It was pleaded that the accident occurred on account

of the rash and negligent driving of the car bearing

registration No.KA-06-N-207 by its driver. The age,

occupation, income and injuries sustained by the claimant

was denied. It was also pleaded that liability of the insurance

company to the compensation, if any, is subject to the terms

and conditions of the policy. It was also pleaded that the

claim petition is bad for non joinder of necessary parties. It

was also stated that the compensation claimed by the

claimant is highly excessive, speculative and exorbitant.

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

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimant, in order to prove his case,

examined herself as PW-1 and got exhibited documents

namely Ex.P1 to Ex.P23, while DR.KP Raju (CW1),

Dr.Veeresha U Mathad (CW2) and Dr.Anoop Kumar Singh

(CW3) were examined through a court commissioner and

documents namely Ex.C1 to Ex.C36 were marked. The

respondent insurance company neither produced any oral nor

any documentary evidence. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident took

place on account of rash and negligent driving of the lorry 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.16,26,000/- along with

interest at the rate of 6% p.a. Being aggrieved, this appeal

has been filed by the claimant seeking enhancement of the

amount of compensation.

6. Learned counsel for the claimant submitted that

the Tribunal grossly erred in deducting various allowances

which formed a part of the salary of the claimant while

assessing the compensation under the head 'Loss of Future

Earning Capacity'. It is further submitted that the Tribunal

erred in assessing the permanent disability of the claimant at

20% when DR.KP Raju (CW1) and Dr.Veeresha U Mathad

(CW2) have clearly stated that the disability sustained by the

claimant is 44% to the lower limb and 59.5% permanent

global neurological disability. It is also submitted that the

Tribunal erred in assessing the compensation under the head

'Future Medical Expenses' when Dr.Veeresha U Mathad

(CW2) and DR.KP Raju (CW1) have clearly stated in their

evidence that the claimant would require surgery for

insertion of implants and for surgical stabilization. It is also

urged that the amount of compensation awarded under all

the other heads are on the lower side and deserve to be

enhanced suitably.

7. On the other hand, learned counsel for the insurance

company submitted that the claimant had continued to be

employed in the same establishment for a period of 2 year

subsequent to the accident and that the claimant has not

suffered any loss of future earning capacity on account of the

injuries sustained by her in the accident. It is further

submitted that the Tribunal has rightly assessed the income

of the claimant on the basis of the basic pay, house rent

allowance, medical reimbursement and conveyance

allowance, as only the same are considered to be part of the

fixed salary of the claimant. It is also submitted that the

Tribunal has rightly assessed that the compensation under

the head 'Future Medical Expenses' as no evidence of the

claimant undergoing the surgical procedure as stated by

DR.KP Raju (CW1) and Dr.Veeresha U Mathad (CW2) has

been tendered by the claimant till date. It is urged that the

amount of compensation awarded by the Tribunal under all

the heads is just and proper and does not call for any

interference.

8. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The only question which arises for our consideration in this

appeal is with regard to the quantum of compensation. It is

well settled in law that any contributions made by the

deceased during his lifetime which forms a part of the salary

is to be included in the monthly income while computing the

loss of dependency and that the only permissible deductions

from the salary of the deceased are those which are

statutory in nature and the benefit of which would not pass

on to the family of the deceased such as deductions on

account of income tax, professional tax etc. [SEE:

NATIONAL INSURANCE COMPANY LTD. VS. INDIRA

SRIVASTAVA (2008) 2 SCC 763]. From perusal of Ex.P14

Pay Slip for the month of February 2016, it is evident that

the claimant's salary was the following: Basic - Rs.9,167/-,

House Rent Allowance - Rs.3,667/-, Medical Reimbursement

- Rs.1,250/-, Flexi Cash Compensation - Rs.6,942/-, Shift

Allowance - Rs.2,640/-, Statutory Bonus - Rs.292/- and

Bonus - Rs.20,000/-. From the aforesaid head of salary, the

Basic Pay, House Rent allowance, Medical Reimbursement,

Flexi Cash Compensation are to be considered part of the

salary of the claimant as the benefit of the same are passed

on to the claimant. However, the salary heads - Bonus,

Statutory Bonus and Shift allowance cannot be considered to

be part of the salary of the claimant for assessment of the

compensation under the head 'Loss of Future Earning

Capacity' as the same are annual perks and may fluctuate as

the not paid to the claimant on a regular basis. Therefore,

the income of the claimant is assessed at Rs.22,626/- per

month ( Rs.9,167 +Rs.3667/- + Rs.1,250/- + Rs.1,600/- +

Rs.6,942/- ).

9. Ex.P5 Wound Certificate indicates that the claimant

has sustained the following injuries -

(i) Blunt abdominal injury - multiple liver lacerations in right lobe with haemoperitoneum.

(ii) Right 7th and 8th rib fracture with haemopneumothorax with lung contusion.

(iii) Undisplaced fractures of D11 and D12 transverse process of spine.

(iv) Vertical fracture of left sacral alae and body of S1 vertebrae.

(v) Displaced fracture of medial wall of right acetabulum and left inferior ischio pubic rami.

(vi) Head injury with focal interpeduncular cistern haemorrhage.

(vii) Fracture of body of sphenoid bone involving the posterior and right lateral walls of sphenoid sinus.

(viii) Collection in both maxillary sinuses.

(ix) Left sided lower motor neuron palsy.

All of the aforesaid injuries are grievous in nature.

DR.KP Raju (CW1) in his evidence has stated that the

claimant has a pain and limp in the left SI Joint, hip lower

back and thigh extending to knee and that the claimant faces

difficulty to sit on floor, squat, climb stairs, stand and suffers

limited left hip and knee movement. The aforesaid witness

has assessed the disability sustained by the claimant at 44%

to the lower limb. Dr.Veeresha U Mathad (CW2) has stated in

his evidence that the claimant has sustained the following

disability -

(a) Motor system disability left foot drop 25%.

(b) Bladder disability - hesitancy/ frequency of urination - 25%.

(c) Cranial nerve disability - left facial nerve paresis

- 20%.

(d) Sensory system disability - hypoesthesia in left leg - 10%.

and has assessed the permanent neurological disability

to the extent of 59.5% globally. The Tribunal has assessed

the disability of the claimant at 20% to the whole body on

the basis of the evidence of Dr.Veeresha U Mathad (CW2)

and DR.KP Raju (CW1). After taking into account the

evidence of Dr.Veeresha U Mathad (CW2) and DR.KP Raju

(CW1), Ex.P5 Wound Certificate and Ex.C3, Ex.C10 and

Ex.C23 Discharge Summaries, we affirm the finding of the

Tribunal with regard to the disability sustained by the

claimant at 20% to the whole body and no interference in

this regard is called for. Therefore, the claimant is held

entitled to Rs.9,23,140/- (Rs.22,626/- X12 x 17 X 20%)

under the head 'Loss of Future Earning Capacity.'

10. As far as the submission of the learned counsel for

the Insurance Company that the claimant has continued in

her job for 2 year subsequent to the accident and that the

claimant is not entitled to compensation under the head 'Loss

of Future earning capacity', the same is liable to be rejected

as Ex.P18, Ex.P21 and Ex.P22 Resignation Letter clearly

disclose that the claimant was unable to carry on with her

employment on account of the injuries sustained by her in

the accident and has therefore, resigned from work.

11. The claimant has remained inpatient for about 23

days, it is axiomatic that the claimant would have been laid

up, at least for a period of 3 months, therefore, the claimant

is held entitled to Rs.67,878/- (Rs.22,626/- x 3) under the

head 'Loss of income for laid up period'.

12. Dr.KP Raju (CW1) in his evidence has stated that

the claimant may require surgery for left SI Arthritis which

may cost the claimant Rs.90,000/- approximately where as

Dr.Veeresha U Mathad (CW2) has stated in his evidence that

the claimant may require surgery in the future for

stabilization with implants as the claimant has sustained D12

Vertebral collapse which may cost the claimant about Rs.5 to

6 lakhs. The Tribunal has awarded Rs.50,000/- in respect of

'Future Medical Expenses' on the ground that the aforesaid

witnesses have not supported their cost estimation. Though,

DR.KP Raju (CW1) and Dr.Veeresha U Mathad (CW2) have

not justified their evidence with regard to the cost of the

surgical procedures that the claimant may be required to

under go in the future, the amount of compensation under

the head 'Future Medical Expenses' requires to be enhanced

by Rs.50,000/- in addition to the amount of compensation

already awarded by the Tribunal under the head 'Future

Medical Expenses'.

13. Taking into account the fact that the claimant has

suffered 5 grievous injuries and that the claimant was an

inpatient for 23 days, we deem it appropriate to enhance the

compensation under the heads 'Pain and Suffering' and 'Loss

of Amenities' by an additional sum of Rs.20,000/- and

Rs.40,000/- respectively.

14. The amount of compensation awarded under the

other heads is maintained as the same is just and

reasonable. It is also made clear that the claimant is not

entitled to additional compensation to the tune of

Rs.9,00,000/- under the head 'Medical Expenditure' which

has been reimburised by the insurer of the medi-claim policy

in view of the decision of a bench of this court in THE NEW

INDIA ASSURANCE CO.LTD VS MANISH GUPTA 2013

ACJ 2478. Thus, the claimant is held entitled to the

following compensation:

Sl. Compensation under different Amount in No. heads Rs. 1. Pain and suffering Rs.60,000/- 2. Loss of amenities Rs.80,000/- 3. Attendant charges, Food and Rs.30,000/- Nourishment Charges, Conveyance Expenses 4. Future medical expenses Rs.1,00,000/- 5. Loss of Future Earning Capacity Rs.9,23,140/- 6. Loss of income during laid up Rs.67,878/- period 7. Medical Expenses Rs.7,75,074/- Total Rs.20,36,092/-

Therefore, the claimant is held entitled to a total

compensation of Rs.20,36,092/-. Needless to state that the

enhanced amount of compensation viz., Rs.4,10,092/- shall

carry interest at the rate of 6% per annum from the date of

filing of the petition till the date of realization of the amount.

To the aforesaid extent, the judgment of the claims Tribunal

is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE ss