Karnataka High Court

The Legal Manager vs Sri. M. S. Krishnachary on 23 November, 2022

Bench: H.P.Sandesh

                            1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 23RD DAY OF NOVEMBER, 2022

                        BEFORE

          THE HON'BLE MR. JUSTICE H.P. SANDESH

                M.F.A.No.8333/2016 (MV-I)
                          C/W.
                M.F.A.No.6954/2018 (MV-I)



IN M.F.A.NO.8333/2016

BETWEEN

THE LEGAL MANAGER
TATA AIG GENERAL INSURANCE COMPANY LIMITED
NO.69, 3RD FLOOR
J.P. & DEVI JAMBUKESHWARA ARCADE
MILLERS ROAD
BENGALURU-560 052.
BY ITS LEGAL MANAGER.
                                            ...APPELLANT
(BY SRI O MAHESH, ADVOCATE)

AND

1. SRI M. S. KRISHNACHARY
   AGED ABOUT 31 YEARS
   S/O. SANNASWAMMACHARY
   NO.32, D'SOUZANAGAR
   BEHIND PESIT COLLEGE
   HOSAKEREHALLI
   BANASHANKARI III STAGE
   BENGALURU-560 085
                             2



2. ABDUL REHMAN SHARIFF
   MAJOR
   S/O UMRUDDIN
   R/OF ANCHEPALYA
   KUMBALAGUD POST
   KENGERI HOBLI
   BENGALURU-560 060
                                            ... RESPONDENTS

(BY SRI GIRIMALLAIAH, ADVOCATE FOR R1;
 V/O DT. 17.09.2018, NOTICE TO R2 IS D/W)


     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 14.09.2016
PASSED IN MVC NO.4102/2014 ON THE FILE OF THE MOTOR
VEHICLES ACCIDENT CLAIMS TRIBUNAL, BENGALURU AND ETC.


IN M.F.A.NO.6954/2018

BETWEEN

SRI M S KRISHNACHARY
S/O SANNASWAMMACHARY
AGED ABOUT 33 YEARS
NO.32, D'SOUZANAGAR
BEHIND PESIT COLLAGE
HOSAKEREHALLI
BANASHANKARI 3RD STATE
BENGALURU-560 085
                                               ...APPELLANT
(BY SRI GIRIMALLAIAH, ADVOCATE)

AND

1.    TATA AIG GENERAL INSURANCE COMPANY LTD
      NO.69, 3RD FLOOR, J.P. & DEVI
      JAMBUKESHWARA ARCADE
      MILLERS ROAD
                                     3



      BENGALURU-560 052
      BY ITS MANAGER

2.    SRI ABDUL REHMAN SHARIFF
      S/O UMRUDDIN
      MAJOR
      R/AT ANCHEPALYA, KUMBALAGUD POST
      BENGALURU-560 060
                                                      ... RESPONDENTS

(BY SRI O MAHESH, ADVOCATE FOR R1)


     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 14.09.2016
PASSED IN MVC NO.4102/2014 ON THE FILE OF THE MOTOR
VEHICLES ACCIDENT CLAIMS TRIBUNAL, BENGALURU AND ETC.

    THESE M.F.A.S COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                              JUDGMENT

This appeals are filed by the Insurance Company as well as

the claimant challenging the judgment and award dated

14.09.2016 passed in MVC No.4102/2014 on the file of the

Motor Vehicles Accident Claims Tribunal, Bengaluru ('the

Tribunal' for short).

2. Heard the learned counsel appearing for the

respective parties.

3. The factual matrix of the case is that on 16.08.2014,

when the injured claimant was going on his motorcycle, at that

time, the driver of the offending vehicle i.e., Tempo came in a

rash and negligent manner in a high speed and dashed against

him as a result, he was thrown on the road and sustained

injuries and immediately he was shifted to Rajarajeshwari

hospital, Bengaluru and after the first aid, he was shifted to

Sahana hospital and then to Sairam hospital wherein he took the

treatment as an inpatient and undergone for surgery. It is also

the case of the claimant that due to the alleged accident, he had

suffered permanent disability. In support of his claim, he

himself examined as PW1 and also examined two doctors as PW2

and PW3 and also his wife who was the pillion rider as PW4 and

got the marked documents at Ex.P1 to P17. On the other hand,

the respondents have examined one witness as RW1 and got

marked the documents at Ex.R1. The Tribunal after considering

both the oral and documentary evidence comes to the conclusion

that the accident was on account of negligence on the part of the

driver of the offending vehicle and awarded the compensation of

Rs.13,60,810/-. Hence, these appeals are filed by the Insurance

Company as well as the claimant questioning the negligence on

the part of the claimant and also the quantum of compensation.

4. The learned counsel appearing for the Insurance

Company in his arguments vehemently contend that the accident

was occurred due to the negligence on the part of claimant-

injured and the same was not considered by the Tribunal and

Tribunal ought to have seen that the injured who was riding the

motorcycle along with his wife as pillion rider did not choose to

examine the independent eye-witness to prove the negligence of

the driver of the insured, except his own evidence and his wife

who was not injured at all. The counsel also would submit that

the Tribunal has mechanically considered the material on record

and awarded the compensation of Rs.8,16,000/- under the head

of future loss of earnings holding the income of the injured at

Rs.8,000/- per month and also considered erroneously 50% of

disability when one of the doctor-PW2 who have been examined

opined only global disability of 60% and evidence of

exaggeration was considered by the Tribunal and awarded

exorbitant compensation. PW2 admits in his cross-examination

that he is not aware of disability rating scale and inspite of it, his

evidence has been accepted. The counsel also submits that

another doctor who has been examined as PW3 before the

Tribunal has assessed the disability of 10% and inspite of it, the

Tribunal has considered the disability of 50% and the

compensation as awarded by the Tribunal is exorbitant hence, it

requires interference.

5. Per contra, the learned counsel appearing for the

claimant would contend that in order to consider the contributory

negligence, nothing is elicited from the mouth of PW1 that he

contributed to the accident and also not examined the driver of

the offending vehicle and in the absence of any evidence, the

question of considering contributory negligence does not arise.

The counsel also would submits that the Tribunal while

considering the material on record observed that the driver of

the offending vehicle went wrong side and dashed against him

hence, the Tribunal has rightly considered the material on record

in not taking the contributory negligence on the claimant. The

counsel would submit that PW2 who is a Neurosurgeon who

treated the injured speaks with regard to head injury and has

assessed the disability of 60% and PW3 who is Orthopedic

Surgeon speaks with regard to fracture of humorous and patella

and he assessed the disability with regard to the fractures at

10% and having taken note of 60% disability in respect of head

injury and also the injury to the limb assessed 10% disability,

the Tribunal considered the disability of 50% hence, committed

an error in not taking the disability in entirety and the counsel

submits that the compensation awarded in all heads are very

meager and the income considered as Rs.8,000/- is also very

less when the accident is of the year 2014 and the notional

income would be Rs.8,500/- hence, it requires interference.

6. The learned counsel appearing for the Insurance

Company in reply to the argument of the claimant's counsel

contended that the compensation awarded on the head of

medical expenses is exorbitant when there is no separate bills

for having paid the amount in the hospital hence, the Tribunal

has committed an error in this regard.

7. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material available

on record, the points would arise for consideration of this Court

are:

1. Whether the Tribunal has committed an error in

not taking the contributory negligence on the

part of the claimant as contended by the

counsel for the Insurance Company?

2. Whether the Tribunal has committed an error in

awarding exorbitant compensation as

contended by the counsel for the Insurance

Company?

3. Whether the Tribunal has committed an error in

not awarding just and reasonable compensation

as contended by the counsel for the claimant?

4. What order?

Point No.1

8. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material available

on record it discloses that it is the contention of the claimant

before the Tribunal that when he was proceeding in the

motorcycle, the offending vehicle came to the wrong side and

dashed against him. The claimant not only examined himself as

PW1 but also examined his wife who was the pillion rider at the

time of the accident as PW4. In the cross-examination of PW1,

in order to comes to a conclusion that there was a negligence on

the part of the claimant, nothing was elicited from his mouth

except eliciting the answer that he has not observed the

damages to the tempo and the counsel would contend that while

in the cross-examination of PW4, answer was elicited. But in the

cross-examination of PW4 also only it was elicited that she has

shown the place of accident to the police and the width of the

road is around 15 to 20 feet. It is suggested that the motorcycle

was not hit by tempo, it is a self accident by the rider and the

same was denied by PW4. Having taken note of the cross-

examination of PW1 and 4, nothing is elicited with regard to

considering the contributory negligence on the part of the

claimant. Apart from that Insurance Company is also not

examined the driver of the tempo who is the right person to

speak with regard to how and manner in which the accident was

occurred and Ex.P4-charge-sheet also discloses that after the

investigation, the police have filed the charge-sheet against the

driver of the tempo. Apart from that IMV report at Ex.P3

discloses the damages to both the vehicles i.e., head light

assembly damaged in respect of motorcycle and rear right side

rim bent damage in respect of offending vehicle. It is also the

case of the claimant that the driver of the offending vehicle came

to the wrong side and dashed against him and as against the

evidence of PW1, there is no contra evidence by the

respondents, hence, in the absence of cogent evidence before

the Tribunal that injured-claimant also contributed to the

accident does not arise. Accordingly, Point No.1 is answered as

negative.

9. The main contention of the Insurance Company is

that the compensation awarded by the Tribunal is on the higher

side and the Tribunal blindly accepted the evidences of PW2 and

PW3 with regard to the disability and taken the disability of 50%.

The learned counsel for the claimant would submit that the

nature of injuries are very clear that he had suffered the head

injury and on perusal of wound certificate at Ex.P5 which

discloses that there was a injury to right forehead and CT brain

discloses the depressed fracture right frontal bone and he was

inpatient from 17.08.2014 to 01.09.2014 i.e., for a period of 15

days and the injuries also grievous in nature. The discharge

summary is also marked as Ex.P6 wherein the injuries were

diagnosed as RTA comminuted depression fracture right frontal

bone parenchymal contusion with pneumo-cephalus right frontal

contusion, superior prafalcine SDH with cerebral edema, greater

tuberositn fracture right humerus and right patella fracture with

lacerated wound.

10. In support of his contention, he has examined the

doctor as PW2 who is the Neurosurgeon at Sairam hospital who

treated the injured in his evidence he reiterated the nature of

injury and comminuted fracture of frontal bone and also he

speaks with regard to the CT scan of the brain and recently

examined the injured and he also says that he is in need of one

more surgery for cranioplasty for bone defect and also assessed

the mental disability based on Indian disability evaluation and

assessment scale and permanent disability of 60%. He also

subjected for the cross-examination and in the cross-

examination, he says that final diagnosis is communited

depresses fracture of right centre bone. Since the claimant

vision is normal, he has not taken opinion of ophthalmologist.

The fracture impacted frontal lobe of brain and he has treated

the patient by debridement of wound and craniotomy. The

defect is sealed but not restored to normal. Frontal lobe

functions, executive, motors, social and emotions and he has

takent he report of neuropsychologist pertains to cognitive

functions and the same is not produced. After 21.05.2015, he

has not examined the claimant but he says that as per MRI

report, there is gliosis in the right frontal lobe. He also admits

that he has not produced calculation in arriving disability score

at 11 but he denied the suggestion that the claimant is not

having 60% disability.

11. PW3 who is also a Orthopedic Surgeon has deposed

that the claimant had sustained head injury with SDH with

frontal bone fracture, greater tuberosity fracture on right

shoulder and lacerated wound with patella chip fracture on right

knee and he also assessed the disability in respect of both upper

and lower limb at 10% and the assessment made by the doctor

is bifurcated with regard to the whole body disability to the

extent of 10%.

12. Considered the evidence of both PW2 and PW3 who

have treated the injured. The evidence of PW2 appears little on

higher side giving the disability of 60% to the whole body but in

the cross-examination he admits that he has not produced

calculations arriving disability at 11 and based on the disability

scale of 11 only, he calculated the disability of 60% and also

subsequent to the examination after 21.05.2015, he has not

been examined the claimant however, PW2 was examined before

the Tribunal on 25.08.2015 that is after three months of

examination of claimant hence, the evidence of PW2 cannot be

discarded and nature of injury is very clear that he had sustained

head injury with SDH frontal bone fracture and PW2 and PW3

both confirms that there was a frontal bone fracture and wound

certificate also confirms the same. The doctor - PW3 has

assessed the disability to the extent of 10% with regard to

orthopedic injuries and the same is not exorbitant. Having taken

note of the disability at 60% and 20% by the doctor and whole

body disability of 10% to the upper and lower limb, the Tribunal

has not accepted the evidence of PW2 in entirety and only

considered the disability of 50% including the orthopedic injury

of 10% and 40% in respect of head injury and when the head

injury sustained him, the same cannot be converted as 1/3rd

when the frontal bone was fractured and the claimant was

treated to wound debridement hence, I do not find any error

committed by the Tribunal in taking the disability of 50% as

contended by the counsel for the Insurance Company.

13. Now coming to the aspect of quantum of income

taken by the Tribunal. The Tribunal has taken the income of

Rs.8,000/- per month and it was the accident of the year 2014

and the notional income would be Rs.8,500/-. Having taken

note of the nature of the injuries sustained by the injured and

the period of treatment, the Tribunal has awarded an amount of

Rs.75,000/- towards pain and sufferings and the same is just

and reasonable and it does not require interference.

14. The Tribunal has awarded the compensation of

Rs.40,000/- towards loss of income during laid up period. When

the claimant was an inpatient for a period of 16 days and he had

suffered 3 fractures particularly frontal bone fracture i.e., head

injury, the Tribunal ought to have taken laid up period as 6

months instead of 5 months. If 6 months of laid up period is

taken, the amount towards loss of income during laid up period

will comes to Rs.51,000/- (8,500 x 6).

15. The Tribunal has awarded the medical expenses of

Rs.3,37,810/- and the same is based on the documentary

evidence. The main contention of the counsel for the Insurance

Company that no separate bills are produced before the Tribunal

but on perusal of entire medical records it shows that each and

every bills are produced before the Tribunal and the claimant

had paid the advance amount of Rs.2,00,000/- and the bill of the

hospital was Rs.2,15,000/- and after deducting Rs.2,00,000/-

only, they have collected the balance amount of Rs.15,000/-.

Hence, the very contention of the Insurance Company cannot be

accepted when original bills are produced before the Tribunal

including the inpatient bill and other bills which shows having

purchase the medicines. Hence, medical expenses awarded by

the Tribunal is just and reasonable and it does not requires any

interference.

16. Now coming to the aspect of considering loss of

future income, I have already pointed out that the Tribunal has

rightly taken the disability of 50% and in view of the judgment

of the Apex Court in the case of ERUDHAYA PRIAYA vs

STATE EXPRESS TRANSPORT CORPORATION LIMITED

reported in 2020 SCC ONLINE 601 it is held that in case of

31% disability also, future prospectus has to be added. The

claimant was aged about 29 years at the time of the accident.

Hence, 40% has to be added towards future prospectus. Hence,

to the income of Rs.8,500/-, 40% is added, it comes to

Rs.11,900/- and having taking the disability of 50% and the

multiplier of 17, the amount towards loss of future income

comes to Rs.12,13,800/- (11,900 x 12 x 17 x 50%) as against

Rs.8,16,000/-.

17. The Tribunal has awarded an amount of Rs.50,000/-

towards loss of amenities and in a case of 50% disability, it is

appropriate to enhance the same to Rs.1,00,000/- as against

Rs.50,000/-.

18. The Tribunal has awarded an amount of Rs.12,000/-

towards conveyance, nourishment, food and attending charges

and the same is just and reasonable and it does not require any

interference.

19. The Tribunal has awarded an amount of Rs.30,000/-

towards future medical expenses and the same is just and

reasonable and it does not require any interference. In all the

claimant is entitled for Rs.18,19,610/- as against Rs.13,60,810/-

20. In view of the discussions made above, I pass the

following:

ORDER

(i) The appeal in M.F.A.No.8333/2016 is

dismissed.

(ii) The appeal in M.F.A.No.6954/2018 is allowed

in part.

(iii) The impugned judgment and award of the

Tribunal dated 14.09.2016 passed in

M.V.C.No.4102/2014 is modified granting

compensation of Rs.18,19,600/- as against

Rs.13,60,810/- with interest at 6% per annum

from the date of petition till deposit.