Karnataka High Court
M/S Oriental Insurance Company vs M C Umesha on 30 June, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.6571/2011 (MV)
BETWEEN:
M/S ORIENTAL INSURANCE COMPANY
LIMITED, REGIONAL OFFICE,
NO.44/45, IV FLOOR, LEO SHOPPING,
RESIDENCY ROAD CROSS,
BENGALURU - 560 025
REP BY ITS AUTHORIZED OFFICER
... APPELLANT
(BY SRI R.GUNASHEKAR, ADVOCATE)
AND:
1. M C UMESHA,
S/O CHANNIGAPPA,
AGED ABOUT 30 YEARS,
R/O MASHANIPALYA,
BELADHARA POST,
TUMKUR.
2. SRI MANSOOR R
S/O ABDUL RUB,
AGED ABOUT 45 YEARS,
S K P COMPOUND BACK SIDE,
HIRIYUR TOWN,
CHITRADURGA DISTRICT,
(OWNER OF LORRY BEARING
REGN. NO.KA-02 B.9747)
...RESPONDENTS
(SRI.K.SHANTHARAJ, ADVOCATE FOR R1;
V/O/DTD 08.06.2015, R2 NOTICE D/W)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
PRAYS THAT THIS HON'BLE COURT TO MODIFY THE AWARD
AMOUNT BY SETTING ASIDE THE JUDGMENT AND AWARD
DATED 01.04.2011 PASSED IN MVC NO.1001/2006 BY THE
HON'BLE FAST TRACK COURT - I & MACT, TUMKUR, ETC.,
THIS MFA HAVING BEEN HEARD AND RESERVED ON
04.03.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Being aggrieved by the quantum of compensation granted
in favour of petitioner in the petition filed by him under Section
166 of the Motor Vehicles Act, 1988 (hereinafter referred to as
'the MV Act'), appellant who is respondent No.2 before the
Tribunal, has filed this appeal under Section 173(1) of the MV
Act.
2. While the petitioner claimed compensation in a sum
of Rs.10,00,000/- the Tribunal has granted in all compensation
in a sum of Rs.20,85,000/- with interest at 6% p.a.
3. For the sake of convenience, the parties are referred
to by their rank before the Tribunal.
4. FACTS: Briefly stated the facts leading to filing of the
claim petition are that at the relevant point of time petitioner
was working as Nayak in Army and he was on leave. On
14.05.2006 at 10.00 a.m, petitioner was going on motor cycle
bearing registration No.KA-06/W-2683 from Tumakuru towards
Madhugiri in order to go to his village. While he reached
Yellapura, in front of Gokul Rice Industries, lorry bearing
registration No.KA 22/B-9747 (hereinafter referred to as
offending vehicle) came out of the Gokul Rice Industries, being
driven by its driver in a rash or negligent manner and dashed
against the motor cycle. Due to the impact, petitioner sustained
grievous injuries. Immediately he was taken to District
Government Hospital, Tumakuru and after first aid, he was
shifted to Command Hospital, Air Force, Bengaluru.
4.1 At the time of accident, the petitioner was aged 25
years. As Nayak he was earning Rs.14,000/- p.m. On account of
the injury sustained and disability suffered, he is unable to work
as he used to.
5. As the owner and insurer of the offending vehicle,
respondent Nos.1 and 2 are jointly and severally liable to pay
the compensation and hence the petition.
6. Despite service of notice, respondent No.1 has not
appeared and as such he was placed Ex-parte by the Tribunal.
7. Respondent No.2 appeared and filed written
statement denying that accident occurred due to the rash or
negligent driving by the driver of the offending vehicle. It was
the petitioner who was negligent resulting in the accident.
Though respondent No.2 admit the coverage of the offending
vehicle, its liability is subject to the terms and conditions of the
policy.
8. Based on these pleadings, the Tribunal has framed
the necessary issues.
9. In support of his case, petitioner has examined
himself as PW-1, the Doctor who has treated him as PW-2 and
got marked Ex.P1 to 21.
10. On behalf of respondent No.2 no oral evidence is led,
but the copy of Insurance policy is marked as Ex.R1.
11. Vide the impugned judgment and award, the
Tribunal has granted compensation in a sum of Rs.20,85,000/-
as detailed below:
Heads Amount in
Rs.
Pain and agony 40,000
Medical Expenses and incidental 10,000
expenses
Loss of future capacity due to
disability
(i) Loss of income due to 3,78,000
reduction in the salary
(ii) Loss of service of 17 years 16,32,000
due to permanent disability
Loss of amenities 25,000
TOTAL 20,85,000
12. During the course of the arguments, learned counsel
representing respondent No.2 submitted that quantum of
compensation awarded is on higher side and exorbitant. The
Tribunal has failed to take note of the fact that even though due
to stringent rules and conditions as to the physical structure of
the petitioner, he was down graded, after retirement from the
Military service, there is possibility of petitioner getting a better
job with good salary as a civilian. Therefore, the Tribunal has
erred in granting compensation for the entire reminder of the
service of the petitioner, which he would have got after
promotion. The Tribunal has also erred in holding that petitioner
has lost 17 years of service.
13. He would further submit that having held that the
claimant will be losing Rs.6,300/- p.m. for a period of five years
and granting compensation on that basis, the Tribunal has failed
to note that by the time the petitioner allegedly loose his job, he
would be more than 35 years of age, the Tribunal has erred in
awarding compensation for further period of 17 years. The
Tribunal ought to have granted compensation by applying
multiplier and taking into consideration disability. However, the
Tribunal has erred in granting compensation for the entire
amount for period of 17 years on the ground of future loss of
income. He would further submit that the Tribunal has erred by
relying upon Ex.P19 which is misleading and wrongly accepting it
as a document issued by the employer whereas in fact it is a
letter written by the petitioner to the Tribunal.
14. Heard arguments of both sides and perused the
record.
15. It is pertinent to note that petitioner has not
challenged the impugned judgment and award by filing any
appeal.
16. Though respondent No.2 has filed this appeal
challenging the impugned judgment and award, it has no serious
dispute with regard to quantum of compensation granted under
the heads pain and suffering, medical/incidental expenses and
loss of amenities. The main challenge of respondent No.2 to the
impugned judgment and award is with regard to grant of
compensation in a sum of Rs.20,10,000/- under the head loss of
future earnings due to disability. Therefore, it has become
necessary to examine whether the Tribunal is justified in
granting Rs.20,10,000/- under the head loss of future income.
17. It is not in dispute that at the relevant point of time,
petitioner was working as Nayak in military. In the petition he
has given his age as 25 years at the time of accident. However,
as evident from Ex.P19, he was born on 10.04.1978 and as such
at the time of accident he was 28 years old. By that time he had
completed 10 years of service. As stated in Ex.P19, as a Sepoy
(infantry soldier), when he joined employment he had 17 + 2 =
19 years of service. Therefore, as on the date of accident, he
had left with 9 years of service.
18. As per Ex.P19, on account of the injury sustained by
the petitioner, he was down graded and thereby he has lost
salary in a sum of Rs.6,900/-p.m and his service was reduced to
15 years 6 months. Thereby, the petitioner has lost 3 years 6
months of service on account of accident suffered by him. Had
the accident not taken place, the petitioner would have retired
after completing 19 years of service i.e., he would have
continued for another 9 years in the same service. Therefore,
the compensation which he is entitled on account of loss of
future income of Rs.6,300/-p.m. for a period of 9 years.
19. However, the Tribunal has granted compensation for
a period of 3 years 6 months at the rate of Rs.6,300/- on the
ground of loss of income for the said period. In addition to it the
Tribunal has also granted compensation at the rate of Rs.8,000/-
for a period of 17 years on the ground that had he continued in
the service, he would have been promoted and in that event he
would have got additional service of 17 years. It is pertinent to
note that petitioner has not produced any disability certificate. In
fact PW-2 Dr. Amit Gaur who was examined on 15.04.2009 i.e.
about 3 years after the accident has deposed that he is not able
to say whether the petitioner has sustained any disability. It is
not the case of the petitioner that even as on the date of
evidence of PW-2, he was under treatment. Consequently, in the
absence of disability certificate, the Tribunal was handicapped in
granting the compensation based on multiplier method as per
the Hon'ble Supreme Court in Sarla Varma's case. Therefore,
the Tribunal has granted the compensation based on the actual
loss of income suffered by the petitioner. In that event it was
sufficient for the Tribunal to calculate the loss of income for the
period left in the post of Sipoy. It has gone a step ahead and
granted compensation on a premise that petitioner would have
got promoted and in that event he would have retired after
putting in total of 33 years of service.
20. However, the Tribunal has lost sight of the fact that
after retirement from military, the petitioner would have been
absolved in any civilian post, as the persons who are retired
from military service are entitled for quota in all the State
Government, Central Government and State and Central
Government owned Companies/Corporations. In that event he
would have been appointed in a suitable post and would have
earned salary as any other employee. In the absence of any
disability suffered by the petitioner, there was no impediment for
him to be absolved in any post as any other individual.
Therefore, I hold that the Tribunal has erred in granting
compensation for total period of 20½ years, even though he was
left with 9 years of service as on the date of accident.
21. Therefore, the compensation under the head loss of
future income is required to be calculated for a period of 9 years
multiplied by the actual loss of income suffered by him. If the
loss of income suffered by the petitioner is taken at Rs.6,300/-
p.m. then for a period of 9 years, the loss of future income is
6,300 x 12 x 9 = Rs.6,80,400/-. As already noted, since the
petitioner has not produced the disability certificate, the loss of
future income could not be calculated based on multiplier
method including the future prospects, as directed in Sarla
Varma, Pranay Sethi and Magma General Insurance Co.Ltd
cases. Since in the present case, the actual loss of income
suffered by the petitioner is made available as per Ex.9, 10, 15
to 17 and the remaining service available to him but for the
accident, it was possible to calculate the actual loss of income
without resorting to multiplier method. However, the Tribunal
has erred in calculating compensation for a total period of 20½
years instead of 9 years. Whether petitioner would have been
promoted had he completed his service without down grading is
a contingent event. Even otherwise after discharge from the
military, petitioner is entitled for re-employment in civilian
service and would be earning and thereby there is no loss of
future income byond the period of his retirement.
22. Thus, from the above discussion, I hold that the
Tribunal has erred in granting compensation for a total period of
20½ years instead of 9 years. So far as loss of future earning
capacity is concerned, the petitioner is entitled for compensation
in a sum of Rs.6,80,400/. Including the compensation under the
remaining heads, in all petitioner is entitled for a total
compensation in a sum of Rs.7,55,400/- with interest at 6% p.a.
as detailed below:
Heads Amount Amount granted
granted by the by this Court
Tribunal In Rs.
In Rs.
Pain and agony 40,000 40,000
Medical Expenses and 10,000 10,000
incidental expenses
Loss of future capacity
due to disability
(i) Loss of income due 3,78,000
to reduction in the
salary 6,80,400
(ii) Loss of service of 16,32,000
17 years due to
permanent disability
Loss of amenities 25,000 25,000
TOTAL 20,85,000 7,55,400
23. To this extent the impugned judgment and award is
liable to be modified and accordingly, I proceed to pass the
following:
ORDER
(i) Appeal is allowed in part.
(ii) The impugned judgment and award dated
01.04.2011 is modified reducing the
compensation to a sum of Rs.7,55,400/- as
against Rs.20,85,000/- granted by the
Tribunal, with interest at 6% p.a. from the
date of petition till realization (minus the
amount already paid/deposited)
(iii) The registry is directed to transmit the trial
Court record along with copy of this order to
the Tribunal.
Sd/-
JUDGE
RR
