Karnataka High Court
M/S. National Insurance Co. Ltd vs Sri. Lakshmi Sagar on 14 November, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A.NO.3473/2017 (MV-I)
C/W.
M.F.A.NO.8506/2015 (MV-I)
IN M.F.A.NO.3473/2017:
BETWEEN:
SRI LAKSHMI SAGAR
S/O. RACHANNA,
AGED ABOUT 31 YEARS,
R/AT NO.31, ANJANADRI NILAYA
RENUKA P.U. COLLEGE,
8TH 'A' MAIN,
OPP. RENUKA P.U.COLLEGE,
DWARAKANAGAR,
HOSAKEREHALLI,
BENGALURU - 85.
ALSO AT:
NO.E/2/2459, UPPER LANE,
NEAR NGO OFFICE, JAGAR,
GULBARGA - 585 102. ...APPELLANT
(BY SRI A.S.GIRISH, ADVOCATE)
AND:
1. SRI NINGE GOWDA A.B.,
MAJOR IN AGE
NO.967/3, BEERESHWARA NAGAR,
2
CHUNCHGATTA, KONANKUNTE POST,
BENGALURU - 78.
2. NATIONAL INSURANCE CO. LTD.,
NO.144, 2ND FLOOR,
SHUBHARAM COMPLEX,
M.G.ROAD, BENGALURU - 01
BY ITS MANAGER. ... RESPONDENTS
(BY SMT.GEETHA RAJ, ADVOCATE FOR R2;
VIDE ORDER DATED 05.01.2021,
NOTICE TO R1 IS DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.08.2015
PASSED IN MVC NO.359/2014 ON THE FILE OF THE XIII
ADDITIONAL SMALL CAUSE JUDGE AND MEMBER MACT,
BENGALURU (SCCH-15), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A.NO.8506/2015:
BETWEEN:
M/S. NATIONAL INSURANCE CO. LTD.,
NO.144, 2ND FLOOR,
SHUBHARAM COMPLEX, M.G.ROAD,
BENGALURU - 560 001 ... APPELLANT
(BY SMT. GEETHA RAJ, ADVOCATE)
AND:
1. SRI LAKSHMI SAGAR
S/O. RACHANNA,
AGED ABOUT 29 YEARS,
RESIDING AT NO.31,
ANJANADRI NILAYA
RENUKA P.U. COLLEGE,
3
8TH 'A' MAIN,
OPPOSITE RENUKA P.U.COLLEGE,
DWARAKANAGAR,
HOSAKEREHALLI,
BENGALURU - 560 085.
ALSO AT:
NO.E/2/2459, UPPER LANE,
NEAR NGO OFFICE, JAGAR,
GULBARGA - 585 102.
2. SRI NINGE GOWDA A.B.,
NO.967/3, BEERESHWARA NAGAR,
CHUNCHANAGATTA
KONANKUNTE POST,
BENGALURU - 560 072. ... RESPONDENTS
(BY SRI A.S.GIRISH, ADVOCATE FOR C/R1;
VIDE ORDER DATED 15.12.2016,
NOTICE TO R2 IS DISPENSED WITH)
THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 18.08.2015
PASSED IN MVC NO.359/2014 ON THE FILE OF THE 13TH
ADDITIONAL SMALL CAUSE JUDGE & MEMBER, MACT,
BENGALURU, AWARDING THE COMPENSATION OF RS.8,18,000/-
WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL
THE REALIZATION.
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondents.
These appeals are filed challenging the judgment and
award dated 18.08.2015 passed in M.V.C.No.359/2014 on the
file of the Motor Accident Claims Tribunal, Court of Small Causes,
Bengaluru (SCCH-15) ('the Tribunal' for short).
2. The parties are referred to as per their original
rankings before the Tribunal to avoid confusion and for the
convenience of the Court.
3. The factual matrix of the case of the claimant before
the Tribunal is that the he is an Engineer and was earning
Rs.34,000/- per month and he met with an accident on
04.12.2013. As a result, he had sustained head injury and
several fractures and he was inpatient at three hospitals for a
period of 20 days i.e., at the first instance at NIMHANS Hospital
for a period of 5 days, at Victoria Hospital for a period of 11 days
and later at Bengaluru Hand Centre for a period of 4 days and he
has also undergone surgeries.
4. In support of his contention, he examined the
Doctors as P.Ws.3 and 4 and also other witnesses with regard to
the employment and got marked the documents as Exs.P1 to
P33. On the other hand, the respondents not examined any
witness.
5. The Tribunal, after considering both oral and
documentary evidence placed on record, awarded compensation
of Rs.8,18,000/- with interest at 9% per annum. Hence, these
two appeals are filed by the Insurance Company as well as the
claimant.
6. The main contention of the appellant-Insurance
Company in the appeal is that the Tribunal committed an error in
not taking the contributory negligence on the part of the injured
himself, who had tried to take U-turn all of a sudden on the main
road. Hence, accident has occurred due to his negligence and
the same has not been considered by the Tribunal. The other
contention of the Insurance Company is that though Doctors
have been examined as P.Ws.3 and 4, the disability to the extent
of 10% assessed is only physical disability and not a functional
disability. Further, the Doctor, who has been examined as P.W.4
has assessed the cognitive disability at 18% as assessed by the
Neuropsychologist. The claimant has not chosen to examine the
Neuropsychologist, who has assessed the cognitive disability at
18% and assessing the disability at 18% is on the higher side.
Hence, it requires interference of this Court. The counsel also
would submit that the Tribunal also committed an error in
awarding compensation on the heads of loss of amenities and
comfort and permanent disability and the same is not
permissible.
7. Per contra, learned counsel for the respondent-
claimant would vehemently contend that the Tribunal committed
an error in taking the income at Rs.15,000/- per month when he
has produced the document of his salary as Rs.34,000/- per
month. It is also contended that the Tribunal also reduced the
disability to 13%, when the Doctor has deposed 38.7% disability
to right upper limb and whole body disability at 10% i.e., in
respect of orthopedic injuries. Apart from that, the Doctor, who
has been examined with regard to the Neuro aspects, assessed
cognitive disability at 18% and committed an error in awarding
only an amount of Rs.75,000/- towards pain and suffering and
compensation awarded on all the heads is very meager and it
requires interference of this Court.
8. Having heard the respective counsel and also on
perusal of the material available on record, the points that would
arise for consideration of this Court are:
(i) Whether the Tribunal committed an error in
taking the contributory negligence as
contended by the appellant/Insurance
Company?
(ii) Whether the Tribunal committed an error in
awarding exorbitant compensation as
contended by the Insurance Company?
(iii) Whether the Tribunal committed an error in
not awarding just and reasonable
compensation as contended by the
appellant/claimant?
(iv) What order?
Point No.(i)
9. The main contention of the appellant-Insurance
Company is that the accident has occurred due to negligence on
the part of the claimant himself since, he entered the main road
without observing the traffic rules and inspite of the document in
terms of Ex.P3-Sketch is produced before the Court, the same
has not been considered by the Tribunal. On the other hand, the
learned counsel for the respondent-claimant would submit that
the claimant had already entered the main road, though he had
come from cross road and the driver of the lorry who came in
the main road drove the same in a rash and negligent manner
and came to extreme left side of the road and dashed against
the motorcycle. The counsel also would submit that the driver of
the lorry has not been examined before the Tribunal and the
Tribunal has considered the same.
10. Having considered the respective submission and on
perusal of the material available on record, particularly Ex.P3-
sketch, no doubt, the rider of the motorcycle entered the main
road from cross road and lorry was also proceeding, the width of
the road was 40 feet and the driver of the lorry came to the
extreme left side of the road wherein there was a provision to
enter into the main road through cross road and there was 28
feet width on the right side of his side and hence, the very
contention of the Insurance Company that the Tribunal
committed an error cannot be accepted, when there was 28 feet
width on the right side of the lorry which came to extreme left
side of the road and caused the accident. It is also not in
dispute that there was a double road and a divider and from the
road divider to the accident spot, there was 28 feet width. When
such being the case, the very contention of the Insurance
Company cannot be accepted and there is a force in the
contention of the learned counsel for the respondent-claimant
that driver of the lorry has not been examined, who is the right
person to speak about the negligence on his part and no such
witness has been examined i.e., either the official witness or the
driver of the lorry. In the absence of any cogent evidence before
the Court, the Tribunal cannot consider the contributory
negligence on the part of the claimant. Hence, I do not find any
force in the contention of the Insurance Company that the
claimant also contributed to the accident. Hence, I answer point
No.(i) as 'negative'.
Point Nos.(ii) and (iii)
11. Both the points are taken up together since the very
contention of the learned counsel appearing for the Insurance
Company is that compensation awarded is on the higher side.
On the other hand, the learned counsel appearing for the
claimant would contend that the compensation awarded is very
meager.
12. Having taken note of the submission of the
respective counsel and also on perusal of the material available
on record, it discloses that the claimant had sustained 8
fractures particularly, facial injury and head injury i.e., base of
skull fracture defused and earlier, the claimant was treated at
NIMHANS Hospital and later on, he was shifted to Victoria
Hospital and Bengaluru Hand Centre and he was inpatient for a
period of 20 days and also took treatment as an outpatient and
both the case sheets of NIMHANS Hospital and Victoria Hospital
also supports the case of the claimant that he had sustained
severe head injury and there were number of fractures.
13. Having taken note of the nature of injuries i.e., 8
injuries in total as contended by the learned counsel for the
claimant which is reflected in the wound certificate and also the
subsequent treatment records i.e., Ex.P6-wound certificate and
Ex.P7-discharge summaries, the Tribunal has only awarded
Rs.75,000/- towards pain and suffering. Having considered the
fact that the claimant had sustained number of fractures, it is
appropriate to award Rs.1,00,000/- on the head of pain and
suffering.
14. The Tribunal has awarded Rs.40,000/- on the head
of loss of income during laid up period. Admittedly, the claimant
was inpatient for a period of 20 days in different hospitals. Apart
from that, he is an Engineer and he was also teaching
mathematics and appointed on a salary of Rs.30,000/- per
month and later, it was enhanced to Rs.34,000/- per month.
When such being the case, the compensation awarded on the
head of loss of income during laid up period in a sum of
Rs.40,000/- requires to be increased to two months salary
instead of Rs.40,000/- awarded by the Tribunal.
15. At this juncture, the counsel for the claimant brought
to notice of this Court the evidence of P.W.7. On perusal of the
same, it is seen that, in the cross-examination, he has admitted
that the claimant was appointed in between June to December,
2013. Hence, it is clear that the accident has occurred in the
first week of December and he was on employment at that time.
However, in the cross-examination, it is stated that last working
day of the claimant in their institute is 30.11.2013 and the
accident has occurred on 04.12.2013. Hence, it is clear that, his
employment was in between from June to December, 2013.
When such being the case, the very contention of the learned
counsel for the Insurance Company cannot be accepted. The
admitted evidence of P.W.7 is that monthly income of the
claimant was Rs.34,000/- per month and having taken the same
for a period of two months, it comes to Rs.68,000/-.
16. Now coming to the aspect of quantum of
compensation is concerned, towards medical expenditure,
medical bills are produced to the tune of Rs.1,05,814/- and the
Tribunal has awarded Rs.1,10,000/- and the same is based on
the documentary evidence and it does not require any
interference.
17. The Tribunal awarded Rs.30,000/- on the head of
future medical expenditure and the Doctor, who has been
examined as P.W.4 has not stated anything about future medical
expenses. Hence, the Tribunal committed an error in awarding
Rs.30,000/- on the head of future medical expenses and the
same is set aside.
18. Now coming to loss of future earning capacity is
concerned, the Tribunal taking the income at Rs.15,000/- per
month, disability at 13% and the relevant multiplier '17' awarded
an amount of Rs.3,97,800/- towards loss of future earning
capacity. Admittedly, the material on record and the evidence of
P.W.7 is very clear that the claimant was getting salary of
Rs.34,000/- per month and the evidence of P.W.7 is very clear
that he was appointed to teach mathematics to 7th and 8th
standard students to complete the syllabus and admittedly, he
was an Engineering Graduate and the fact that he was also
employed to teach mathematics is not in dispute and the
employment is also for a temporary period of 6 months i.e., from
June to December, 2013. When such being the material on
record, the Tribunal ought to have taken 50% of the salary, even
if it is a temporary employment which comes to Rs.17,000/- per
month. With regard to the disability is concerned, the Tribunal
restricted the disability only to 17% and the evidence of the
Doctor is very clear that the claimant has cognitive disability at
18% regarding his head injury, 10% in respect of orthopedic
injuries i.e., fracture of scapula and brachial plexus injury and
10% in respect of right upper limb and he has also suffered 8
fractures, including the skull fracture. When such being the
case, the Tribunal ought to have considered the cognitive
disability and disability in respect of particular limb while taking
the disability to calculate loss of future earning capacity.
19. The Apex Court in ERUDHAYA PRIYA v. STATE
EXPRESS TRANSPORT CORPORATION LTD. reported in 2020
SCC Online SC 601 awarded future loss of income by adding
future prospects and in the case on hand, the claimant is aged
about 29 years. Hence, 40% has to be added as future
prospects.
20. At this juncture, the learned counsel for the
insurance company would submit that the claimant is not having
any permanent disability and in order to substantiate the same,
no material is placed before the Court and the said contention
cannot be accepted for the reason that the Doctor, who has been
examined as P.W.4 comes and deposes before the Court with
regard to cognitive disability is concerned and no doubt, in the
cross-examination of P.W.4 he admitted that competent person
to speak is the person, who assessed the disability, the person
who assessed the disability has not been examined before the
Court. When such being the case, it is appropriate to take 13%
cognitive disability taken by the Tribunal and the Tribunal, while
calculating the percentage of disability, not considered the
orthopedic injuries disability. Hence, it is appropriate to take the
cognitive disability at 13% and orthopedic disability at 10%
which comes to 23%.
21. In view of the judgment of the Apex Court in
ERUDHAYA PRIYA's case and the judgment of the Division
Bench in M.F.A.NO.103807/2016 C/W.
M.F.A.NO.103835/2016 dated 27.05.2022 at Dharwad Bench
and considering the age of the claimant as 29 years, 40% has to
be added as future prospects. If the same is added, the income
of the claimant comes to Rs.23,800/- per month. Hence, taking
the income at Rs.23,800/- per month, disability at 23% and the
relevant multiplier '17', the loss of future earning capacity comes
to Rs.11,16,696/-.
22. The Tribunal awarded an amount of Rs.50,000/- on
the head of loss of amenities and having considered the age of
the claimant as 29 years and he has to lead rest of his life with
the disability of 23%, no grounds are made out to interfere with
the same.
23. The Tribunal awarded Rs.75,000/- towards
permanent disability and the same is not permissible since,
compensation is awarded under the head of loss of income
during laid up period and loss of future earning capacity. Hence,
award of an amount of Rs.75,000/-is set aside.
24. The Tribunal awarded Rs.40,000/- on the head of
attendant charges, diet, conveyance and other charges and the
same is on the higher side. The records disclose that the
claimant was inpatient for a period of 20 days and hence, the
same is reduced to Rs.20,000/- as against Rs.40,000/- awarded
by the Tribunal. Hence, in all, the claimant is entitled for
compensation of Rs.14,64,696/-. Accordingly, I answer point
Nos.(ii) and (iii) as 'affirmative'.
Point No.(iv)
25. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeals are allowed in part.
(ii) The impugned judgment and award of the
Tribunal dated 18.08.2015, passed in
M.V.C.No.359/2014 is modified granting
compensation of Rs.14,64,696/- as against
Rs.8,18,000/- with interest at 6% per annum
on the enhanced compensation and the
claimant is not entitled for the interest for the
delayed period of 491 days as ordered by this
Court vide order dated 01.04.2021.
(iii) The Insurance Company is directed to pay the
compensation amount with interest within six
weeks from today.
(iv) The amount in deposit is ordered to be
transmitted to the concerned Tribunal
forthwith.
(v) The Registry is directed to transmit the records
to the concerned Tribunal, forthwith.
Sd/-
JUDGE
ST
