Shri Jayaram vs M/S Janani Tours & Resorts (P) Ltd
2022 Latest Caselaw 1637 Kant

                                1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF FEBRUARY, 2022

                             BEFORE

        THE HON'BLE MR. JUSTICE P. KRISHNA BHAT

     MISCELLANEOUS FIRST APPEAL NO.2715 OF 2011 (MV)

BETWEEN:

       SHRI JAYARAM
       S/O. V. VENKATESH,
       AGED ABOUT 22 YEARS,
       C/O. KRISHNAPPA,
       NO.27, 6TH MAIN, 4TH CROSS,
       DODDANEKUNDI EXTN.,
       MARATHAHALLI POST,
       BENGALURU-560 037.
                                                  ... APPELLANT
       (BY SRI SHRIPAD V. SHASTRI, ADV.)

AND:

1.     M/S. JANANI TOURS & RESORTS (P) LTD.
       NO.26, REDDY BUILDING,
       TUMKUR ROAD, T. DASARAHALLI,
       BENGALURU-560 067.

2.     BAJAJ ALLIANZ GEN. INS. CO. LTD
       GROUND FLOOR, NO.31,
       TBR TOWER, I CROSS, NEW MISSION ROAD,
       ADJACENT TO JAIN COLLEGE &
       BENGALURU STOCK EXCHANGE,
       J. C. ROAD,
       BENGALURU-560 002,
       BY ITS MANAGER.
                                                ... RESPONDENTS
       (BY SRI D. VIJAYAKUMAR, ADV., FOR R-2;
           NOTICE TO R-1 IS DISPENSED WITH VIDE ORDER
           DATED 21-3-2012)
                                2


     THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE
JUDGMENT AND AWARD DATED 13-10-2010 PASSED IN M.V.C.
NO.4275 OF 2009 ON THE FILE OF XVI ADDITIONAL JUDGE, M.A.C.T.,
BENGALURU CITY, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS MISCELLANEOUS FIRST APPEAL IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

                        JUDGMENT

This appeal is at the instance of the claimant seeking

enhancement of the compensation awarded by judgment and

award dated 13-10-2010 in M.V.C. No.4275 of 2009 passed

by the Motor Vehicles Accident Claims Tribunal, Bengaluru.

2. Claim petition proceeded on the allegation that on

19-5-2009 at 8:30 a.m., when the claimant was crossing

outer ring road, near Krishna temple, in front of DTDC

Courier, Marathahalli, Bengaluru, a car bearing Registration

No.KA-02 D-7561, driven by its Driver in a rash and negligent

manner in high speed dashed against him resulting in serious

injuries.

3. Before the Tribunal, the insured-owner remained

ex-parte. Insurance Company entered appearance and filed

its objections denying the averments made in the claim

petition.

4. During trial, the claimant examined himself as

P.W.1. He examined eyewitness as P.W.2, two medical

experts as P.Ws.3 and 4, and Exs.P.1 to P.19 were marked.

No witnesses were examined for the respondents and no

documents were marked for them.

5. After hearing the learned counsel on both sides and

perusing the records, the Tribunal allowed the petition in part

awarding compensation of Rs.4,99,300/- with interest

thereon at 6% per annum from the date of petition till its

realisation.

6. Learned counsel for the appellant-claimant

submitted that the Tribunal has considered the income of the

claimant on the lower side and therefore, he has awarded a

lesser compensation. He also submitted that the Tribunal

has committed serious error in assessing compensation for

loss of earning capacity of the claimant and loss of amenities.

He also submitted that the Tribunal has not considered the

aspect of awarding compensation for loss of marital prospects

of the claimant. He also submitted that compensation under

the heads of loss of earning during laid up period is also on

the lower side. He, therefore, submitted that the appeal is

required to be allowed by suitably enhancing the

compensation.

7. Learned counsel for the respondent-Insurance

Company, per contra, contended that the compensation

awarded by the Tribunal is just and reasonable and no case

is made out for enhancement of the compensation already

awarded by acceptable evidence. He mainly relied upon the

answers given by the claimant-P.W.1 during cross-

examination to emphasize that P.W.1 did not suffer from loss

of any cognitive function and he has answered the questions

during cross-examination in an intelligent manner. He

submitted that P.W.3 has given false evidence in order to help

the claimant and even, he was not competent to give

evidence. Insofar as P.W.4 is concerned, he submitted that,

even though, he was an Orthopedician Surgeon, he did not

treat the claimant and therefore, his evidence is also not

entitled to be looked into. He submitted that whole body

disability assessed by the Tribunal is 30%, which is right and

proper and no case is made out to take whole body disability

at a higher percentage. In that view of the matter, he

submitted that there is no merit in the appeal and it is liable

to be dismissed.

8. I have given my anxious consideration to the

submissions made on both sides and I have carefully perused

the records.

9. Certain basic facts are not in dispute. Age of the

claimant at the time of the accident was twenty years. His

income has not been established by leading any acceptable

evidence. Notional income for the year 2009 fixed by the

Karnataka Legal Services Authority is Rs.5,000/- per month.

Appropriate multiplier applicable to the age of the claimant is

'18'.

10. Ex.P.5 is the Wound Certificate and Ex.P.7 and P.8

are the Discharge Summaries issued by the Hospitals, where

the claimant was in-patient. Ex.P.13 is the Case-sheet.

Ex.P.18 is the Doctor's report issued by P.W.4 regarding

physical examination done by him.

11. Cross-examination of P.W.1 shows that the

claimant was able to answers certain questions in a proper

manner with regard to the fracture suffered by him and also

the problems caused to him on account of the injuries

suffered on his functional capacity. P.W.3 did not treat the

claimant during the initial part of his treatment, but

subsequently, he had treated him in Abhaya Hospital, where

also the claimant had taken treatment. P.W.3 in his Affidavit

evidence has stated as follows:

"xxx xxxx xxx

2) He came for followup a couple of times between 20.7.09 and 1.02.10. During which time there was further improvement in his memory and other neurological problems. He was continued on medications to help improve memory as well as stabilize his behavior. He also doesn't remember either the accident or his stay in the 3 hospitals. He came to back to me on 01.02.10 mainly for assessment of disability. His father said that mentally he was not as active as sharp as sharp as before and more stubborn. He continued to his suboptimal memory and due to that he had stopped working as per the father. A detailed neuropsychological assessment done on 10.02.10 and reported on 17.02.10 revealed evidence of:

a) Impaired motor speed left hand (10th percentile)

b) Impaired mental speed (3rd to 6th percentile)

c) Impaired sustained attention (3rd -7th percentile)

d) Impaired phonemic fluency (10th percentile)

e) Impaired logical memory (< 5th percentile)

f) Impaired verbal comprehension (<5th percentile)

g) Impaired verbal learning and memory (<5th percentile)

h) Impaired visual learning and memory (<5th percentile)

i) Personality changes were reported in the form of irritable mood and dull withdrawn behavior.

These deficits were suggestive of involvement of right pre-frontal area, left frontal lobe and left dorsolateral prefrontal cortex and left temporal lobe.

Disability Assessment: As per the DGHS (Govt. of India) guidelines and NIMHANS guidelines

a) Neurological Disability-0

b) Psychological/social/behavioral disability

- Self care-0

- Interpersonal relationships-1

- Communication & understanding-1

- Work-2

(SCORES:0- NO DISABILITY: 1-MILD DISABILITY (slight, low): 2-MODERATE DISABILITY (Medium, fair): 3-SEVERE DISABILITY (high, extreme): 4- PROFOUND DISABILITY total, cannot do)

Total Score=4

Duration of illness - < 2 years: add 1

Total global disability 4 + 1 = 5

1-6 = mild disability = < 40%: Scored by me at 22%

c) Cognitive disability: as per guidelines of NIMHANS = 34%

FINALLY PERMANENT PHYSICAL IMPAIRMENT IN NEUROLOGICAL CONDITIONS:

As per DGHS telescopic sum formula

= 2 + b(90-a) (where a= 34 and b=22)

= 34 + 22 (90-34)

= 47.68%

WHOLE BODY DISABILITY = 47.68% and this ability will come in the way of his day today activities and also his avocation as a Coolie."

12. Thus, he has come to the conclusion that whole

body disability suffered by the claimant is 47.68%. He was

subjected to extensive and elaborate cross-examination on

behalf of the Insurance Company. During cross-examination,

he has stated that he had not produced the questions put to

and answers given by the claimant. He has denied the

suggestion that he had made false observations in the record.

He has denied the suggestion that he is not a competent

person to speak about the cognitive disability suffered by the

claimant and insisted that behavioural disability can be

assessed by Neuropsychological, or Neuro-Surgeon. On

perusal of evidence of P.W.3, it cannot be said that whole

evidence of P.W.3 is false, but there is some exaggeration as it

is evident from the answers given by P.W.1 during cross-

examination. Accordingly, whole body disability is assessed

at 47.68% by P.W.3 for neuropsychological purpose is on the

higher side and is required to be scaled down to 25%.

13. Insofar as evidence of P.W.4 is concerned, the only

criticism leveled by the learned counsel for Insurance

Company is his competence to speak about disability suffered

by the claimant on the ground that he did not treat the

patient. However, P.W.4, who is an experienced Orthopedic

Surgeon has given detailed reasons which are the basis for

his arriving at the conclusion that the claimant has suffered

15% disability to the whole body. P.W.4 in his Affidavit

evidence has stated as follows:

"xxx xxx xxx

5. On recent clinical examination:

1. He limps on right lower limb.

2. Wasting of right quadriceps muscles and leg muscles with power 4/5.

3. Visible deformity at middle of right leg.

4. Range of movements of right ankle: dorsi- flexion 15 deg, plantar flexion 15 deg, inversion/aversion 10 degrees each.

5. Range of movements of right knee, flexion 90 deg, extension 10 deg.

6. Shortening of right leg 2 cm (32/34).

xxx xxx xxx

Considering above all, he has got 30% disability on right lower limb and 15% on whole body. He needs one more surgery for removal of implants which costs Rs.15,000/-. Assessment of disability has been done according to ALIMCO and my professional experience."

14. Important points to be noted are that, he had

observed shortening of right leg by 2 cms. and he has given

the length of right lower limb at 32 cms. and normal left

lower limb at 34 cms. He has also given the range of

restriction in movement of right leg. It has to be borne in

mind that the claimant is a young man, aged twenty years at

the time of accident. In that view of the matter, it is

extremely difficult for the claimant to work as a Coolie on

account of shortening of the leg. Therefore, functional

disability has to be taken at 40% to the whole body.

15. Accordingly, functional disability insofar as

neuropsychological reason and ortho reason will have to be

taken at 65%.

16. In view of the decision of the Hon'ble Supreme

Court in ERUDHAYA PRIYA v. STATE EXPRESS

TRANSPORT CORPORATION LIMITED reported in

2020 SCC ONLINE SC 601, SANDEEP KHANUJA v. ATUL

DANDE AND ANOTHER reported in (2017) 3 SCC 351 and

JAGADISH v. MOHAN AND OTHERS reported in

(2018) 4 SCC 571, loss of future prospects will have to be

added to the established income while computing loss of

earning capacity even in the case of permanent disability

suffered in an accident. Since the claimant was aged twenty

years at the time of accident, as per the law laid down by the

Constitution Bench of the Hon'ble Supreme Court in

NATIONAL INSURANCE COMPANY LIMITED v. PRANAY

SETHI AND OTHERS reported in (2017) 16 SCC 680, future

prospects to be taken is at 40% of the established income.

17. Accordingly, loss of earning capacity is recomputed

to Rs.9,82,800/- (5,000 + 40% x 12 x 18 x 65%). Since the

loss of earning capacity is computed by adopting multiplier

method and also by adding loss of future prospects, for loss of

amenities, only a token compensation is required to be

allowed [RAJ KUMAR v. AJAY KUMAR reported in

(2011) 1 SCC 343]. Accordingly, there is no need to

enhance the compensation awarded under the said head by

the Tribunal and the same is maintained. I do not find any

supporting material to show that the claimant had suffered

loss in marital prospects and therefore, there is no reason to

award any compensation under the said head. Insofar as loss

of earning during laid up period is concerned, on account of

injuries suffered, the claimant would not have been in a

position to engage in work at least for a period of six months.

Therefore, Rs.30,000/- (5,000 x 6) is awarded under the head

loss of earning during laid up period. Compensation awarded

under the other heads namely, Rs.60,000/- for pain and

suffering, Rs.1,50,000/- towards medical expenses,

Rs.25,000/- for loss of amenities, Rs.10,000/- for conveyance

charges and Rs.10,000/- for future surgery by the Tribunal is

maintained.

18. Thus, the claimant is entitled for following

compensation:

As awarded As awarded by the Heads by this Court Tribunal (in Rs.) (in Rs.) Pain and suffering 60,000.00 60,000.00 Loss of income during 17,500.00 30,000.00 treatment period Medical expenses 1,50,000.00 1,50,000.00 Future loss of earning 2,26,800.00 9,82,800.00 Loss of amenities 25,000.00 25,000.00 Conveyance charges 10,000.00 10,000.00 Future surgery 10,000.00 10,000.00 Total 4,99,300.00 12,67,800.00

Accordingly, the appeal is hereby partly allowed. The

claimant is entitled to enhanced compensation of

Rs.7,68,500/- (Rupees seven lakh sixty-eight thousand and

five hundred only) with interest at the rate of 6% per annum

from the date of petition till the date of deposit. Insurance

Company is directed to deposit the award amount within

eight weeks' from the receipt of a certified copy of this

judgment. Transmit the records to the Tribunal, forthwith.

Sd/-

JUDGE

kvk