Karnataka High Court
United India Insurance Co Ltd vs Shyamala G on 21 June, 2022
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A.NO.6206/2017 C/W
M.F.A.CROB.157/2017 IN
MFA.NO.6206/2017 (MV-I)
IN MFA NO.6206/2017
BETWEEN:
UNITED INDIA INSURANCE CO. LTD.,
KOLAR BRANCH OFFICE, KOLAR
NOT AT THROUGH ITS
REGIONAL OFFICE, NO.18,
5TH & 6TH FLOORS, KRISHIBHAVAN,
BANGALORE-560001.
REP. BY ITS MANAGER
OLD ADDRESS:
SUGUNA NURSING HOME COMPLEX,
ANTHARAGANGE ROAD,
NEAR KSRTC BUS STAND,
KOLAR-563010.
... APPELLANT
(BY SRI JANARDHAN REDDY, ADVOCATE)
AND:
1. SHYAMALA G.,
W/O LATE N.V.PRASAD,
AGED ABOUT 44 YEARS,
R/AT NO.2268,
WARD NO.21, ARALE PETE,
2
SIDLAGHATTA,
CHIKKABALLAPURA-562102.
2. M. ERAPPA REDDY,
S/O LATE VENKATASWAMY,
R/AT DODDABANDARLAHALLI VILLAGE,
KASHETTIHALLI POST,
SRINIVASAPURA TALUK,
KOLAR DISTRICT-563101.
(OWNER OF THE JCB NO.KA-07-M-5820)
... RESPONDENTS
(BY SRI.SHARATH S.GOWDA, ADVOCATE FOR R-1,
R2-SERVED)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
DATED:03.04.2017 PASSED IN MVC NO.4769/2016 ON
THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF
SMALL CAUSES MACT BANGALORE, AWARDING
COMPENSATION OF RS.2,61,000/- WITH INTEREST AT 9%
P.A. FROM THE DATE OF PETITION TILL THE DATE OF
PAYMENT AND ETC.,
IN MFA CROB NO.157/2017
BETWEEN
SHYAMALA G.,
W/O LATE N.V. PRASAD,
AGED ABOUT 45 YEARS,
R/AT NO.2668,
WARD 21, ARALE PETE,
SIDLAGHATTA,
CHIKKABALLAPUR-562105.
...CROSS OBJECTOR
(BY SRI. SHARATH S. GOWDA, ADVOCATE)
3
AND:
1. SRINIVASAMURTHY B.V.,
S/O VENKATESHAPPA, MAJOR,
R/AT BOMMANAHALLI VILLAGE,
DEVARAMALLUR POST,
SHIDLAGHATTA TALUK,
CHIKKABALLAPUR-562105.
DRIVER OF JCB BEARING,
REG.NO:K.A-07-M5820.
2. M.R. ERAPPAREDDY,
S/O LATE VENKATASWAMY, MAJOR,
R/AT DODDABANDARLAHALLI VILLAGE,
KASHETTIHALLI POST,
SRINIVASAPURA TALUK,
KOLAR DISTRICT,
KOLAR-563101.
OWNER OF THE VEHICLE.
3. UNITED INDIA INSURANCE CO. LTD.,
SUGUNA NURSING HOME COMPLEX,
ANTHRAGANGE ROAD,
NEAR KSRTC BUS STAND,
KOLAR-563010.
HAVING REGIONAL HEAD OFFICE AT
HUDSON CIRCLE, NRUPATHUNGA ROAD,
BANGALORE-560001.
REP. BY ITS MANAGEER.
POLICY NO:BRF0715013115P102005239
VALID FROM 23.05.2015 OT 22.05.2016
....RESPONDENTS
(BY SRI.JANARDHAN REDDY, ADVOCATE FOR R3,
R1 & R2-NOTICE ARE D/W V/O DATED:26/03/2018)
M.F.A.CROB.No.157/2017 IN MFA NO.6206/2017
FILED UNDER ORDER XLI RULE 22 OF THE CPC READ
WITH SECTION 173(1) OF MV ACT, 1988, AGAINST THE
JUDGMENT AND AWARD DATED 03.04.2017 PASSED IN
MVC NO.4769/2016 ON THE FILE OF THE MEMBER, MACT,
XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES,
4
MOTOR VEHCILCES ACCIDENT CLAIMS TRIBUNAL,
BENGALURU CITY (SCCH-14), ON THE FILE OF PARTLY
ALLWOING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMEPNSATION AND
ETC.,
M.F.A.NO.6206/2017 AND MFA. CROB. NO 157/2017
IN MFA NO.6206/2017 COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING.
JUDGMENT
MFA.No.6206/2017 is filed by the Insurance
Company challenging the judgment and award dated
03.04.2017 passed in MVC.No.4769/2016 by XVI
Addl. Judge, Court of Small Causes and MACT,
Bangalore.
MFA.Crob.No.157/2017 in MFA.No.6206/2017 is
filed by the claimant seeking enhancement of
compensation.
2. Brief facts of the case are as under:
On 27.02.2016 at about 3.15 p.m., the claimant
along with her husband N.V.Prasad and one
Manjunath were traveling in Maruthi 800 car bearing
No.KA-40-M-1615 towards Srinivasapura from
Shidlaghatta. When they were one kilometer away
from west of Kadirinayakanahalli gate on
Chinthamani-Shidlaghatta main road, at that time,
JCB bearing No.KA-07-M-5820 driven by its driver in
rash and negligent manner came from the opposite
side and dashed against claimant's car. Due to
impact, N.V.Prasad/husband of the claimant sustained
severe injuries and died on the spot. The claimant
sustained grievous injuries. Immediately, the claimant
was taken to General hospital, Siddlaghatta,
Chikkaballapur District, wherein she took first aid
treatment and thereafter, she was shifted to St.John's
Medical College Hospital, Sarjapur Road, Bengaluru,
wherein she was treated as an inpatient for a period of
10 days from 28.02.2016 to 08.03.2016. She was
discharged with an advise to take regular follow up
treatment.
3. Learned counsel appearing for the
Insurance Company submitted that the amount of
compensation on each head is on the higher side.
Therefore, prays for reducing the compensation
amount. Further submitted that the Tribunal had
committed error in awarding Rs.1,00,000/- towards
disability, but the claimant had continued her job in
the same designation with the same salary. Therefore,
awarding of compensation of Rs.1,00,000/- under the
head disability is not correct. Therefore, prays to
modify the judgment and award by allowing the
appeal.
4. Learned counsel appearing for the
Insurance Company has relied on the decision of the
Division Bench of this Court in the case of Sri Subash
Vs. The New India Assurance Co., Ltd., reported in
ILR 2010 KAR 2439, wherein it is held that the
compensation cannot be awarded under the head
disability, if the injured is continued in the same job.
5. The principles of law laid down by the
Division Bench of this Court in the above cited case is
that if the injured claimant is continued in the same
job with the same salary/income, then the
compensation towards loss of future income cannot be
granted. In the present case, the Tribunal has
correctly observed that due to occupational disability,
the compensation cannot be awarded, because, the
claimant has continued in the same job with the same
salary, but certainly, the appellant/claimant being a
woman and also lost her husband in the same
accident being a widow and the disability in the
present case is the living conditions disability has to
suffer through out her life. Therefore, the disability
always cannot be linked for the purpose of calculation
to award compensation under the head loss of future
income due to disability. Therefore, I distinguish
above said judgment.
6. On the other hand, learned counsel for the
cross-objector/claimant submitted that the amount of
compensation awarded on each head is on the lower
side and the same needs to be enhanced. Further
submitted that considering the nature of injuries
sustained as evidenced from the medical records and
from the deposition of PW.2-doctor, the claimant has
to live with the disability through out her life.
Therefore, even though, the claimant has continued in
the same designation with the same salary, but the
compensation awarded under the head loss of
amenities is on the lesser side. Therefore, prays for
enhancement of compensation. Further submitted that
the Tribunal has awarded compensation of
Rs.15,000/- towards "Nourishment, conveyance and
attendant charges", which is on the lower side
considering the period spent as inpatient and taking
follow up treatment for a period of 10 months.
Therefore, prays for enhancement of compensation.
7. The Tribunal has awarded compensation
under various heads as follows:
1 Pain and sufferings Rs. 60,000/-
2 Medical expenses Rs. 5,000/-
3 Nourishment, conveyance and Rs.
15,000/-
attendant charges
4 Loss of leave Rs. 16,000/-
5 Disability Rs. 1,00,000/-
6 Loss of amenities Rs. 25,000/-
7 Future medical expenses Rs. 40,000/-
TOTAL Rs. 2,61,000/-
8. On perusal of Ex.P.8-Discharge Record and
Ex.P.14-OP File, which reveals the nature of injuries
sustained by the appellant and also Ex.P.16 - CD and
Ex.P.17 - X-ray reveals that the claimant had suffered
fracture of right hip and also fracture of right leg and
knee. The above said injuries are grievous in nature.
The doctor- P.W.2 has deposed that the claimant has
suffered permanent disability of 10.6% towards the
whole body.
9. It is worthwhile to mention the permanent
physical disability suffered by the appellant as follows:
"Right hip and thigh, multiple surgical scar
present over right hip and thigh over lateral
aspect healed by primary intention. Scar joint
line and fracture sit tenderness present, range
of movement flexion decreased by 20 degree,
abduction decreased by 15 degree, internal
rotation decreased by 10 degree, thigh muscles
wasting of 1.5 cms. On examination of right
knee, multiple surgical scar present over lateral
aspect of lower thigh, tenderness present over
distal locking screw, scar and joint line, range of
movement flexion decreased by 10 degree,
extension decreased 5 degree, calf muscles
wasting of 1 cm. present."
10. Considering the submission made by the
learned counsel for the Insurance Company that the
amount of compensation awarded at Rs.1,00,000/-
towards disability cannot be considered as the
contention of the learned counsel for the Insurance
Company is that the disability is always linked to the
loss of future earning. With such disability, the
claimant has to live through out her life along with
such disability. Therefore, the living conditions
disability also has to be taken into consideration.
Therefore, the Tribunal is correct by observing that
the claimant had continued her job in the same
designation with the same salary, but the disability
suffered by the appellant is not only occupational
disability, but also living conditions disability.
Therefore, the Tribunal is right in observing that there
is no loss of future earning capacity due to disability.
Therefore, the compensation cannot be awarded
under the head loss of future earning capacity due to
disability, but the Tribunal had observed that the
claimant has to live with 10% of disability through out
her life. Therefore, even the appellant is not entitled
to compensation under the head loss of earning
capacity due to occupational disability, but the
claimant is entitled to compensation under living
conditions disability, because with such disability as
explained by P.W.2-doctor, the appellant has to live
throughout her life. Therefore, considering these
aspects, the Tribunal has awarded compensation of
Rs.1,00,000/- towards disability, which is found to be
correct. Further the Tribunal has awarded
compensation of Rs.25,000/- under the head loss of
amenities. Therefore, there is no need to make any
interference by this Court.
11. Further, the medical records reveals that,
as per Ex.P.16-out patient record, the
appellant/claimant had taken follow up treatment till
November, 2016. The accident has occurred on
27.02.2016. Therefore, for such a long period, the
claimant was constrained to take follow up treatment
by paying amount towards transportation and
conveyance expenses etc., but under this head the
Tribunal has only awarded compensation of
Rs.15,000/-, which needs to be enhanced. Therefore,
considering the fact that the appellant was in patient
for 11 days and had undergone surgeries and was
constrained to take follow up treatment nearly for ten
months till 26.11.2016 as per the records, a sum of
Rs.30,000/- is awarded under the head
"Nourishments, food, conveyance and attendant
charges."
12. The amount of compensation awarded
under other heads is found to be correct and proper.
Therefore, there is no need to make any disturbance
on other heads, which is based on the evidence on
record. Therefore, compensation amount is enhanced
by Rs.30,000/-, which shall carry interest at the rate
of 6% per annum from the date of petition till the date
of realization. Accordingly, appeal filed by the
Insurance Company is liable to be dismissed and the
appeal filed by the claimant is liable to be allowed-in-
part. Hence, I proceed to pass the following
ORDER
MFA.No.6206/2017 filed by the Insurance
Company is dismissed. MFA.Crob.No.157/2017 filed
by the claimant is allowed-in-part.
The impugned judgment and award dated
03.04.2017 passed in MVC.No.4769/2016 by XVI
Addl. Judge, Court of Small Causes and MACT,
Bangalore, is modified to the extent of enhancing
compensation amount by Rs.30,000/- and it shall
carry interest at 6% per annum from the date of
petition till the date of realization.
The amount deposited by the Insurance
Company shall be transmitted to the Tribunal along
with TCR and copy of this order forthwith.
Draw award accordingly.
No order as to costs.
Sd/-
JUDGE
PB
