Karnataka High Court
National Insurance Co.Ltd vs Md Imran S/O Saratulla And Anr on 7 June, 2022
Bench: Sreenivas Harish Kumar, S Rachaiah
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JUNE, 2022
PRESENT
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR.JUSTICE S. RACHAIAH
MISCELLANEOUS FIRST APPEAL No.200282/2015 (MV)
C/W
MISCELLANEOUS FIRST APPEAL No.200129/2015 (MV)
In MFA No.200282/2015:
Between:
National Insurance Co. Ltd.
Issuing Branch:
Begum Bazar Branch
Hyderabad
Through Divisional Manager
National Insurance Co. Ltd.
Opp. Mini Vidhan Soudha
Gulbarga
(Now represented by Authorized Signatory)
...Appellant
(By Smt. Preeti Patil Melkundi, Advocate)
And:
1. Md. Imran S/o Saratulla
Age: 24 years
Occ: Aluminium Carpenter
Now nil, r/o H.No.81
Vedauli Urf Dubalui PS-Sonah
2
Tq. Banpur, Dist: Basti
Uttar Pradesh
2. Mr. Munaf Patel
S/o Abdul Khadar Patel
Age: Major, Occ: Business
Owner of Lorry bearing
No.AP-09/Y-2465
R/o Jabbar Complex, 7th Floor
Banshilapet, Secundarabad Road
Secundarabad, Dist: Hyderabad
Andhra Pradesh
...Respondents
(By Sri Babu H. Metagudda, Advocate for C/R1
R2 served)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988 praying to allow the
above appeal by setting aside the impugned judgment and
award dated 30.10.2014 in MVC No.116/2013 passed by the
Fast Track Court Basavakalyan, Dist. Bidar.
In MFA No.200129/2015:
Between:
Md. Imran S/o Saratulla
Age: 24 years
Occ: Aluminum Carpenter
Now nil, r/o H.No.81
Vedauli Urf Dubalui PS-Sonah
Tq. Banpur, Dist: Basti
Uttar Pradesh-584101
...Appellant
(By Sri Babu H. Metagudda, Advocate)
3
And:
1. Mr. Munaf Patel
S/o Abdul Khadar Patel
Age: Major, Occ: Business
Owner of Lorry bearing
No.AP-09/Y-2465
R/o Jabbar Complex, 7th Floor
Banshilalpet, Secundarabad Road
Secundarabad, Dist: Hyderabad
Andhra Pradesh-584101
2. The Manager
National Insurance Co. Ltd.
Issuing Branch:
Begum Bazar Branch
Hyderabad
Through Divisional Manager
National Insurance Co. Ltd.
Opp. Mini Vidhan Soudha
Gulbarga-585401
...Respondents
(By Smt. Preeti Patil Melkundi, Advocate for R2;
R1 served)
This Miscellaneous First Appeal is filed under Section
173(1) of the Motor Vehicles Act, 1988 praying to allow this
appeal and modify the judgment and award dated 30.10.2014
passed in MVC No.116/2013 by the Fast Track Court
Basavakalyan, Dist. Bidar and enhancing the compensation from
Rs.16,48,000/- with 6% interest to Rs.30,00,000/- with 12%
interest.
These appeals coming on for final hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
4
JUDGMENT
These two appeals are disposed of by a common
judgment as they arise from judgment and award
dated 30.10.2014 in MVC.No.116/2013 on the file of
Fast Track Court and MACT, Basavakalyan, Bidar
District.
2. MFA No.200282/2015 is filed by the
Insurance Company and MFA No.200129/2015 is filed
by the injured claimant.
3. The road traffic accident in connection with
which claim petition was laid took place on
10.10.2012. The injured was traveling from Mumbai
to Hyderabad in a bus bearing registration No.AP-
02/TA-0216. As he had kept his right hand on the
window sill of the bus, a lorry bearing registration
No.AP-09/Y-2465 being driven by its driver in a rash
and negligent manner dashed to the side of the bus at
the place where the injured was sitting and
consequently, he suffered fracture to his right hand.
He took treatment in many hospitals in Mumbai. The
medical report was that he suffered fracture of right
humerus at elbow joint as a result of crush injury on
the right hand. There was extensive damage to the
nerves and the muscles.
4. The police filed charge sheet against the
driver of the lorry for causing accident due to rash and
negligent driving. The tribunal also found that the
accident occurred owing to negligent manner of
driving by the lorry driver.
5. The injured was a carpenter (aluminum
materials). At the time of accident, his age was 21
years. He stated that his monthly income was
Rs.15,000/-. He claimed that he suffered 100%
disability. PW.2, the doctor who was examined by
the injured opined that the disability was 80%. The
tribunal accepted the opinion of PW.2 and held that
the whole body functional disability was 80%. The
tribunal held his notional income as Rs.5,000/- per
month as he failed to produce any document in proof
of his actual income. Treating that the injured was a
skilled labour, adding 50% of the income towards loss
of future prospects and applying the multiplier 18
corresponding to his age, the tribunal awarded
compensation of Rs.12,96,000/- towards loss of future
income which was inclusive of loss of future prospects.
The tribunal also granted Rs.1,62,000/- towards
medical expenses, Rs.30,000/- for the loss of income
during laid up period, Rs.25,000/- each for pain and
sufferings, loss of amenities and pleasure, loss of
expectation of life, loss of figure, medical attendant
charges and food and nutrition charges respectively
and Rs.10,000/- towards transportation charges. The
total compensation was Rs.16,48,000/-. In addition,
the tribunal directed the Insurance Company to
deposit Rs.10,00,000/- in the court towards further
medical expenses subject to conditions as per
observations made in paragraphs 30 to 33 of its
judgment.
6. The observations made in these paragraphs
are that as per the opinion of the doctor, the injured
required Rs.15,00,000/- for future medical expenses
to set right the right hand to normal level, and in this
view the injured had to undergo multiple surgeries
and implantations. If Rs.15,00,000/- as opined by the
doctor is awarded towards future medical expenses,
there is no guarantee that the injured will undergo
surgeries and even if it is presumed that he will
undergo surgery, the evidence for the exact money
spent may not be available and if a small amount is
awarded, it may be insufficient to meet the actual
expenses and therefore in order to strike balance, the
Insurance Company may be directed to deposit
Rs.10,00,000/- tentatively.
7. It is necessary to note here the observation
made by the Co-ordinate Bench when this appeal was
taken on 01.07.2021 with regard to direction issued
by the tribunal to the Insurance Company to deposit
Rs.10,00,000/- tentatively for the future medical
expenses of the injured. The observation is that since
the injured did not produce any record or document
for having taken further treatment subsequent to the
award passed by the tribunal, it was necessary that
the injured should be subjected to the medical
examination by the Medical Board of Gulbarga
Institute of Medical Sciences (GIMS) and that the
injured was directed to appear before the Director of
GIMS on 29.07.2021 at 11.00 a.m.
8. The Additional Registrar General of this
Court received a letter dated 02.03.2022 written by
the Medical Superintendent of GIMS to the effect that
the committee could not be formed because of
unavailability of vascular surgeon and plastic surgeon
for examining the injured and therefore he requested
to refer the injured to the State Medical Board,
Bengaluru.
9. Smt. Preeti Patil Melkundi, learned counsel
for the Insurance Company argued that the tribunal
should not have directed the Insurance Company to
tentatively deposit Rs.10,00,000/- for the future
medical expenses of the injured. She argued that the
doctor examined by the injured in support of his case
did not give evidence as to the nature of future
treatment that the injured would have to undergo. In
the absence of medical evidence, the tribunal should
not have directed to deposit Rs.10,00,000/-. The
accident took place in the year 2012, and it is not the
case of the injured that after discharge from the
hospital, he was required to take treatment further for
the injury that he suffered. If really he had taken any
treatment in the last ten years, he would have
certainly produced documents in proof of the same.
So far he has not taken treatment. In this view the
direction issued by the tribunal is to be reconsidered
and as has been opined by the Medical Superintendent
of GIMS, the injured may be referred to State Medical
Board, Bengaluru. Therefore she argued for modifying
the judgment of the tribunal.
10. Sri Babu H. Metagudda argued that the
nature of the fracture suffered by the injured was self
evident to come to a conclusion that he had to
undergo treatment even after discharge from the
hospital. There is a clear opinion of the doctor who
gave evidence before the tribunal that the injured had
to undergo several surgeries to bring his right hand to
normal condition. In this regard he further argued
that while the injured has no objection for appearing
before the State Medical Board, as ten years has
already passed, this court can take note of the
circumstances and direct the Insurance Company to
deposit Rs.10,00,000/- as has been directed by the
tribunal.
11. His further point of argument was that the
income of the injured was Rs.15,000/- per month as
he was a skilled labour being a carpenter working in
Mumbai. Obviously his earning was more and in this
view Rs.5,000/- per month as fixed by the tribunal is
on the lower side. Therefore, the compensation for
loss of future income has to be enhanced by taking his
monthly income as Rs.15,000/-. He further submitted
that the amount awarded on other conventional heads
like pain and suffering, loss of amenities etc., are also
on lower side and they require enhancement. In
support of his argument he placed reliance on the
judgment of the Hon'ble Supreme Court in the case of
Ankur Kapoor Vs. Oriental Insurance Co.Ltd., -
2017 (4) T.A.C.940 (SC).
12. We have considered the arguments. Since
the Medical Board could not be constituted at GIMS
because of non-availability of specialists, the injured
can be referred to the State Medical Board, Bengaluru.
But we take note of the fact that already ten years
has passed since the date of accident and if we refer
the injured to the State Medical Board, it may take
some more time to receive the opinion. This appeal is
of the year 2015. As argued by Smt. Preeti Patil
Melkundi, the injured appears to have not undergone
any surgery in the last ten years, and Sri. Babu H.
Metagudda did not refute this point of argument.
Therefore, we are of the opinion that instead of
referring the injured to the State Medical Board, we
can decide the appeal itself by awarding a certain sum
of money for the future treatment. Whether the
injured took further treatment or not, it is altogether a
different aspect. But while the claim petition in
relation to the injury is of a serious nature, the
tribunal is bound to presume the fact that the injured
would require some money for future medical
treatment.
13. During hearing, it was also brought to our
notice that when these appeals came up for hearing
before the Co-ordinate Bench on 01.07.2021, the
Bench referred the injured to the Medical Board,
GIMS. Pursuant to his reference, the Medical Board
gave opinion that the extent of whole body disability
was 90%. This was the first opinion given by the
Board and on 21.12.2021, it was felt that the injured
should again be referred to the Medical Board, GIMS
because the Bench was of the opinion that the report
dated 23.09.2021 submitted pursuant to order dated
01.07.2021, was not clear. Sri Babu Metagudda
submitted that having regard to the nature of fracture
and injuries suffered by the injured, whole body
disability can be taken as 90% and Smt. Preeti Patil
also submitted that disability to this extent can be
considered. Therefore, we proceed to examine
whether there are grounds for enhancement of
compensation or not.
14. For computing the compensation, the
Tribunal considered Rs.5,000/- as his monthly income
instead of Rs.15,000/- as the injured did not produce
any document for proving that his monthly income
was Rs.15,000/-. Sri Babu H. Metagudda has argued
that since the accident took place in the year 2012,
the notional income to be considered according to the
chart prepared by the Legal Services Authority is
Rs.6,500/-. Therefore, adopting the notional income
as mentioned in the chart, we hold that income of the
injured could be taken as Rs.6,500/- per month. As
held above, disability is 90%. Appropriate multiplier
applicable is '18'. Another 40% can be added for loss
of future prospects. Therefore, the total amount
awardable towards loss of income due to functional
disability works out at as under:
Rs.6,500 + 40% = Rs.9,100/-
Rs.9,100 x 12x 18 x 90% = Rs.17,69,040/-
Loss of income during laid up period comes to
Rs.39,000/- (Rs.6,500 x 6 months).
15. As discussed above, a certain amount of
money should be granted for the future medical
expenses. In Jagadish vs. Mohan and others
(Civil Appeal No.2217/2018), the injured was a
skilled carpenter and he suffered serious disability to
his both hands consequent to motor vehicle accident.
Taking note of the nature of injuries the claimant
therein had suffered, the Hon'ble Supreme Court felt
that Rs.3,00,000/- could be awarded towards future
medical expenses. Applying the same yardstick, as
the injured was a skilled carpenter in aluminum
materials, we award Rs.3,00,000/- towards future
medical expenses.
16. Sri Babu Metagudda has argued further
that the compensation awarded on other conventional
heads like pain and suffering, loss of amenities, etc. is
very meager and therefore the compensation must be
enhanced on these heads. But we do not find ground
to give enhancement on the conventional heads
because what the Tribunal has done is that instead of
awarding a lumpsum amount towards pain and
suffering and loss of amenities, it has split the figures
to award Rs.25,000/- each towards pain and suffering,
loss of amenities and pleasure, loss of expectation of
life and loss of physical figure. In this view, there is
no need to modify these figures for giving
enhancement. The compensation awarded by the
Tribunal on these heads is maintained. Thus seen, the
total compensation that the injured is entitled to is as
under:
1. Pain and sufferings Rs. 25,000/-
2. Loss of life amenities and Rs. 25,000/-
pleasure
3. Loss of expectation of life Rs. 25,000/-
4. Loss of physical figure Rs. 25,000/-
5. Medical attendant charges Rs. 25,000/-
6. Food and nutrition charges Rs. 25,000/-
7. Transportation charges Rs. 10,000/-
8. Medical expenses Rs. 1,62,000/-
9. Loss of income during laid up Rs. 39,000/-
period (Rs.6,500 x 6 months)
10. Loss of future income Rs. 17,69,040/-
11. Future medical expenses Rs. 3,00,000/-
Total Rs. 24,30,040/-
17. With the above discussion, we come to the
conclusion that both the appeals are to be allowed
partially and the judgment and award dated
30.10.2014 passed by the Tribunal in MVC
No.116/2013 stands modified holding that the injured
is entitled to total compensation of Rs.24,30,040/-
with 6% interest from the date of petition till date of
payment or till deposit. The enhanced compensation
shall be deposited within eight weeks from today.
Statutory deposit made by the Insurance Company
shall be transmitted to the tribunal for disbursement
to the injured.
Sd/-
JUDGE
Sd/-
JUDGE
sd/swk
