Karnataka High Court
United India Insurance Co Ltd vs G A Manjunatha S/O Late G Achutha on 4 February, 2022
Bench: P.Krishna Bhat
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE P.KRISHNA BHAT
M.F.A.No.4050/2011 C/W. MFA NO.5013/2012
IN MFA NO.4050/2011:
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
SHANKARNARAYANA BUILDING
M.G.ROAD, BANGALORE - 560 001
BY ITS MANAGER.
...APPELLANT
(BY SRI.O.MAHESH, ADVOCATE)
AND:
1. G.A.MANJUNATHA
AGED 46 YEARS
S/O. LATE G. ACHUTHA
R/A NO.558, 43RD CROSS
JAYANAGAR, 8TH BLOCK
BANGALORE - 560 082.
2. T. NARAYANA SWAMY, MAJOR
S/O. T. THIMMAIAH
M/S. RAGHAVENDRA TOURS
AND TRAVELS, NO.130
8TH MAIN, 17TH CROSS
MALLESHWARAM WEST
BANGALORE - 560 003 (EX-PARTE BEFORE MACT)
...RESPONDENTS
2
(BY SMT. G.K.SREEVIDYA, ADV. FOR
SRI T.N.VISHWANATH, ADV. FOR R1;
V/O DT.22.07.2011, NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 14.12.2010 PASSED
IN MVC NO.2232/2010 ON THE FILE OF THE IX
ADDITIONAL SENIOR CIVIL JUDGE, MEMBER MACT-7,
COURT OF SMALL CAUSES, BANGALORE, AWARDING A
COMPENSATION OF RS.1,74,000/- WITH INTEREST @ 6%
P.A. ON RS.1,64,000/- FROM THE DATE OF PETITION TILL
REALIZATION.
IN MFA NO.5013/2012:
BETWEEN:
SHRI MANJUNATHA G.A.
S/O. LATE SRI G. ACHUTHA
AGED ABOUT 47 YEARS
R/AT NO.558, 43RD CROSS
JAYANAGAR, 8TH BLOCK
BANGALORE - 560 082.
...APPELLANT
(BY SMT. G.K.SREEVIDYA, ADV. FOR
SRI T.N.VISHWANATH, ADV.)
AND:
1. UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE
NO.25, 1ST FLOOR
SHANKARNARAYANA BUILDING
M.G.ROAD, BANGALORE - 560 001
3
2. MR. NARAYANA SWAMY T.
S/O. SRI T. THIMMAIAH
M/S. RAGHAVENDRA TOURS
AND TRAVELS
NO.130, 8TH MAIN, 17TH CROSS
MALLESHWARAM WEST
BANGALORE - 560 003
...RESPONDENTS
(BY SRI O. MAHESH, ADV. FOR R1;
V/O DT.11.02.2015, NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 14.12.2010 PASSED
IN MVC NO.2232/2010 ON THE FILE OF THE 9TH
ADDITIONAL SENIOR CIVIL JUDGE, MEMBER MACT-7,
COURT OF SMALL CAUSES, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS ARE COMING ON FOR HEARING
THROUGH VIDEO CONFERENCING THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are at the instance of the
Insurance Company and claimant calling in question
the correctness of the judgment and award dated
14.12.2010 passed in MVC No.2232/2010 on the file
of the IX Additional Senior Civil Judge, Small Causes
Court, Bangalore.
2. The claimant has stated in the petition that
on 04.02.2010, he was traveling as a passenger in
Tata Indica Car bearing registration No.KA-04-B-7234
and at about 1.15 a.m., on Lalbagh Road near
Prestige Group Building, the driver of the car drove
the same in a rash and negligent manner and dashed
against another car bearing registration No.UP-80-AF-
6737 to its hind side. On account of tremendous
impact of the accident, the claimant had suffered
grievous injuries.
3. Before the Claims Tribunal, respondent
No.1-Insurance Company entered appearance and
filed its detailed written statement denying the
material averments in the claim petition and
respondent No.2-owner of vehicle has remained
ex- parte.
4. During the trial, the claimant has examined
himself as PW.1, the Medical Expert from Jayanagar
Orthopedic Centre was examined as PW.2 and the
Manager of his employer M/s. SLK Software Services
Pvt. Ltd. was examined as PW.3. Exs.P1 to P28 were
marked. Respondents did not examine any witnesses.
Ex.R1, the Insurance Policy was marked.
5. After hearing the learned counsel on both
sides and perusing the records, the Tribunal allowed
the claim petition in part and awarded a compensation
of Rs.1,74,000/- with interest thereon at 6% p.a. on
Rs.1,64,000/-. The liability to pay the compensation
was fastened on the Insurance Company, which was
respondent No.1 before the Tribunal.
6. Learned counsel for the appellant-
Insurance Company in support of his appeal
vehemently contended that the negligence on the part
of the driver of the offending vehicle has not been
proved by necessary evidence before the Tribunal. He
submitted that even though the employer had
reimbursed a sum of Rs.25,000/- towards medical
expenses, the Tribunal has again awarded the same in
favour of the claimant, which the Insurance Company
is not liable to pay. Nextly, he contended that the
claimant continued to work in the Company till the
end of July 2010 and in spite of the accident, the
Tribunal has awarded Rs.10,000/- towards 'loss of
income during the laid up period' of two months,
which is erroneous. Lastly, he contended that since
the claimant did not suffer any functional disability, no
compensation under the head of 'loss of earning
capacity' could have been awarded and therefore, the
Tribunal has erred in awarding Rs.84,000/- under the
head of 'loss of earning capacity'. He therefore,
submits that the appeal preferred by the Insurance
Company is entitled to be allowed and claim petition
should be dismissed.
7. Learned counsel for the claimant in support
of her appeal while refuting the contentions of the
learned counsel for the Insurance Company,
submitted that the wound certificate and evidence of
PW.2 clearly shows that the claimant had suffered
comminuted fracture of the right humerus. She
therefore, submitted that a sum of Rs.25,000/-
awarded by the Tribunal under the head of 'Pain and
Suffering' is on the lower side and it is required to be
enhanced. She further submitted that the claimant
was earning a monthly salary of Rs.1,31,075/- as per
Ex.P10 - Salary Certificate, which has also been
supported by the evidence of PW.3, who is the
Manager of the employer of the claimant. She
submitted that in spite of the same, the Tribunal has
awarded a meager amount of Rs.10,000/- towards
'loss of income during the laid up period', which is
required to be enhanced. She submitted that under
the head of 'loss of amenities', the Tribunal has
awarded only Rs.10,000/- which was highly on the
lower side. As could be seen from the evidence of
PW.3, which reflect the disability leading to loss of
amenities suffered by the claimant-PW.1, she
submitted that on the said head also the
compensation is required to be enhanced. She
contended that the Tribunal has awarded only
Rs.10,000/- under the head of 'future medical
expenses' even though PW.2, who is the Medical
Expert has clearly opined that the surgery for removal
of the implants in the right humerus would require
Rs.30,000/-. Finally, she submitted that the award of
Rs.84,000/- made by the Tribunal under the head of
'loss of earning capacity' is also on the lower side and
therefore, it is required to be enhanced. She
submitted that the appeal of the claimant is required
to be allowed and the compensation be suitably
enhanced and the appeal of the Insurance Company
should be dismissed.
8. I have given my anxious consideration to
the submissions made on both sides and I have
carefully perused the records.
9. Learned counsel for the Insurance
Company has vehemently contended that the finding
of the Tribunal on the question of negligence is not
supported by evidence. However, perusal of the
evidence of PW.1, who is the injured eye witness
shows that he has emphatically stated that it was the
rash and negligent driving of the driver of the insured
vehicle alone was the cause for the accident and he
was not cross examined on that aspect by the
Insurance Company. Further, contents of Ex.P2-
Complaint, Ex.P3- Spot Panchanama, Ex.P4-IMV
Report Ex.P5-Sketch and Ex.P6-Charge Sheet filed
against the driver of the insured vehicle also clearly
support the version of PW.1. The very fact that the
offending car had dashed against the hind side of the
car bearing Registration No.UP-80-AF-6737 speaks
volumes about the rash and negligent driving of the
offending car by its driver. In that view of the matter,
I do not find any merit in the contention urged on
behalf of the learned counsel for the Insurance
Company that there was no negligence on the part of
the driver of the offending car. Accordingly, I reject
the same.
10. Learned counsel for the Insurance
Company also advanced the contention that the
employer of PW.1 had reimbursed a sum of
Rs.25,000/- towards 'medical expenses'. I do not find
any support from the evidence placed on record to
sustain the said contention and accordingly, I reject
the same.
11. The Tribunal has awarded a sum of
Rs.10,000/-towards 'loss of income during the laid up
period' to PW.1. The submission of the learned
counsel for the appellant-Insurance Company is that it
is on the higher side. I have carefully perused the
records. It shows that PW.1 was working as a
Consultant with M/s. SLK Software Services Pvt. Ltd.
PW.1-claimaint as well as PW.3-Manager of the
employer have both spoken to the effect that he was
paid remuneration of Rs.1,31,075/- per month.
Ex.P10 is the Salary Certificate, which is marked
before the Tribunal. In view of the evidence of PWs.1
and 3 and Ex.P10-Salary Certificate, there is no good
ground for me to reject the same. Accordingly, it has
to be held that the monthly income derived by PW.1
as Consultant from his employer is Rs.1,31,075/- and
he was paying income tax of Rs.4,569/- and
Professional Tax of Rs.200/- per month. Accordingly,
after deducting the same, he was getting monthly
income of Rs.1,26,306/- from his employer. The
evidence of PW.3 shows that the claimant was on
leave for the whole month of February-2010 and
therefore, it has to be taken that he had lost the leave
to his credit for one month. Therefore, far from
Rs.10,000/- awarded towards 'loss of income during
the laid up period' being on the higher side, it is far
too low and a sum of Rs.1,26,306/- is awarded
towards 'loss of income during the laid up period'.
12. The last contention of the learned counsel
for the Insurance Company is that a sum of
Rs.84,000/- awarded by the Tribunal under the head
of 'loss of earning capacity' is without any basis in the
evidence. In support of the said contention, he drew
my attention to the evidence of the Medical Expert-
PW.2 himself who has stated that though there was a
physical disability on account of the injury caused in
the accident, there was no functional disability caused
due to the accident to the claimant-PW.1. Perusal of
the claim petition, the evidence adduced shows that
the claimant had been working as a Consultant in a
software company namely M/s. SLK Software Services
Pvt. Ltd. The affected part of the body on account of
the accident is the right humerus. There is no
restriction on his physical movement. The Medical
Expert has also stated that there is no functional
disability leading to loss in the earning capacity. Under
such circumstances, the award of Rs.84,000/- made
by the Tribunal under the head of 'loss of earning
capacity' cannot be sustained and accordingly, the
submission of the learned counsel for the Insurance
Company is to be upheld on this head.
13. Now, coming to the submission made by
the learned counsel for the claimant that the
compensation awarded under the various heads are
too low and therefore, the compensation awarded is
required to be recomputed and higher compensation is
required to be awarded is concerned, under the head
of 'pain and suffering', the Tribunal has awarded only
Rs.25,000/-. The evidence of PW.1 and also the
evidence of treating Doctor - PW.2 shows that the
claimant had sustained the following injuries:
1. Comminuted fracture of Proximal
Humerus right and
2. Underwent O.R. & I.F. with locking plate
on 06.02.2010 and discharged on
08.02.2010. The medical expert has
stated that on account of the same,
PW.1 has having following complaints:
1. Pain in the right shoulder.
2. Inability to lift the shoulder.
3. Inability to drive the car.
4. Inability to do routine activities in
right upper limb.
14. The Tribunal has observed under the head
of 'pain and agony' as follows:
"Humerus is the arm bone connecting
the shoulder and elbow and it is considered
to be a major bone. In comminuted
fracture of humerus the bone becomes too
many fragments. The compound fracture
means the bones are exposed to the wound
resulting in tearing of skin and soft tissue
and bleeding and some tiredness exposed
to risk of infection."
Since the fracture is of humerus bone into too many
fragments as correctly noted by the Tribunal, under
the head of 'pain and suffering', a sum of Rs.50,000/-
is required to be awarded. Accordingly, a sum of
Rs.50,000/- is awarded under the head of 'paid and
suffering'. Under the head of 'loss of amenities', the
Tribunal has awarded a sum of Rs.10,000/-. The
grievance of learned counsel for the claimant is that it
is far too low. Now the relevant evidence to be
considered is apart from the evidence of PW.1, the
evidence of Medical Expert-PW.2 which shows the
following:
"6. On Clinical examination I found
the following disabilities:
1. Joint Line Tenderness of Right
Shoulder Joint.
2. Restriction of joint movement
Right shoulder flexion - Extension
70 degree Normal 0-220 degree.
3. Rotation 60 degree Normal 0-180
degree. Abduction, Adduction 70
degree, Normal 0-180 degree.
4. Difficulty to lift objects over head,
putting on clothes, combing and
Buttoning.
7. The radiological examination
showed the following:
1. Fracture mal-united with
implants situ."
15. As is obvious from the claimant, who is a
busy Engineer cannot do some of the essential and
routine functions without lot of difficulty, like lifting of
objects over head, putting on clothes, combing and
buttoning, etc. In the facts and circumstances of this
case and also keeping in view the observations of the
Hon'ble Supreme Court in the case of Raj Kumar Vs.
Ajay Kumar and another reported in (2011)1 SCC
343, more than token amount of compensation has to
be given under the head of 'loss of amenities' as he is
not being awarded any compensation under the head
of 'loss of earning capacity' based on multiplier
method. Accordingly, I award a sum of Rs.1,00,000/-
under the head of 'loss of amenities'. Under the head
of 'future medical expenses', the Tribunal has awarded
a sum of Rs.10,000/-. The Medical Expert clearly
stated that the implants were fixed and they were still
in situ. He has also stated that PW.1 requires one
more surgery for removal of the implants and as on
the date of giving evidence, which was in the year
2010, he has stated that the expense was Rs.30,000/.
The cost of surgery is increasing every year and
therefore, at whatever point of time, the essential
surgery which is required, he might have to undergo,
the cost could not be less than Rs.30,000/-.
Accordingly, a sum of Rs.30,000/- is required to be
awarded under the head of 'future medical expenses'.
Accordingly, a sum of Rs.30,000/- is awarded towards
'future medical expenses'. Hence, the claimant is
entitled to the awarded compensation as follows:
1. Pain and suffering - Rs. 50,000/-
2. Medical expenses - Rs. 25,000/-
3. Future medical expenses - Rs. 30,000/-
4. Loss of amenities - Rs.1,00,000/-
5. Loss of income during
the laid up period - Rs.1,26,306/-
6. Nourishing food, etc. - Rs. 10,000/-
Total - Rs.3,41,306/-
16. The Tribunal has awarded a sum of
Rs.1,74,000/-. Therefore, enhanced compensation is
Rs.1,67,306/-. Out of the enhanced compensation,
the claimant is entitled to interest at the rate of 6%
per annum from the date of decision till the date of
payment by giving deduction to interest for a period of
377 days as already directed on the enhanced
compensation. Similarly, no interest is payable on
future medical expenses of Rs.30,000/-.
Both the appeals are allowed-in-part to the said
extent.
The amount in deposit shall be transmitted to
the learned MACT along with the records.
Sd/-
JUDGE
KA
