Karnataka High Court

Brigges C J vs Cholamandalam on 14 December, 2023

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                                                          NC: 2023:KHC:45560
                                                         MFA No. 368 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 14TH DAY OF DECEMBER, 2023

                                           BEFORE
                            THE HON'BLE MR JUSTICE C M JOSHI
                   MISCELLANEOUS FIRST APPEAL NO. 368 OF 2017 (MV-I)
                   BETWEEN:

                   BRIGGES CJ,
                   S/O. CX.JOSEPHA,
                   AGED ABOUT 49 YEARS,
                   R/O. NO.246, 2ND CROSS,
                   KONDAPPA LAYOUT,
                   YELAHANKA, BANGALORE-64

                                                                ...APPELLANT
                   (BY SRI VIJAYA KUAMR.T, ADVOCATE [V/C])

                   AND:

                   1 . CHOLAMANDALAM,
                       M.S GENERAL INSURANCE CO. LTD.,
                       BY ITS MANAGER,
                       NO.9/1, ULSOOR ROAD,
Digitally signed       SHIVAN CHETTY GARDEN, ULSOOR,
by T S
NAGARATHNA             BANGALORE-560 042.
Location: High
Court of           2 . RAMANNA.N,
Karnataka
                       S/O. NARAYANAPPA,
                       AGED MAJOR,
                       R/O. NO.1739, BHOVI COLONY,
                       KARANJIKATTE, KADRIPURA ROAD,
                       KOLAR-563 101.
                                                              ...RESPONDENTS
                   (BY SRI O MAHESH, ADVOCATE FOR R1 [V/C];
                       R-2 SERVED, BUT UNREPRESENTED)

                       THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
                   JUDGMENT AND AWARD DATED:20.08.2016 PASSED IN MVC
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                                      NC: 2023:KHC:45560
                                     MFA No. 368 of 2017




NO.2434/2015 ON THE FILE OF THE IX ADDITIONAL SMALL
CAUSES JUDGE, & XXXIV ACMM, MEMBER, MACT-7, COURT OF
SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal is directed against the judgment and

award dated 20-08-2016 passed in MVC No.2434/2015 by

the learned IX Additional Small Causes Judge and XXXIV

ACMM and Member, MACT-VII, Court of Small Causes,

Bangalore, whereby the Tribunal awarded a sum of

Rs.7,77,588/- with interest at 9% p.a. as compensation

and fastened the liability on respondent No.1 Insurance

Company.

2. The petitioner contended that on 06.05.2015 at

about 8.30 p.m., when he was returning to his house by

walk, near Gangapura, Hosakote Taluk, Bangalore Rural

District, after his work at Confident Amoon Resorts, the

driver of Canter bearing Registration No.KA-07-9423 came

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from behind in a rash and negligent manner and dashed

against him. As a result, he fell down and sustained

grievous injuries. Immediately, he was taken to M.V.J.

Hospital, Hosakote in 108 Ambulance, wherein, he took

first-aid and later, shifted to Hosmat Hospital, Bangalore,

for further treatment, wherein, he was operated several

times. It was contended that the petitioner spent

Rs.8,00,000/- towards medicine, and other incidental

expenses. It was further contended that, the accident

occurred due to rash and negligent driving of Canter

bearing Registration No.KA-07-9423 by its driver. Prior to

the accident, he was working as Administrative Officer at

M/s. Confident Amoon Resorts, Gangapura, Hoskote Taluk

and drawing a salary of Rs.30,000/-. Due to the injuries

and prolonged treatment, he has suffered permanent

disability. It was further contended that the Nandagudi

Police registered a case against the driver of the Canter

bearing Registration No.KA-07-9423 in Crime No.99/2015.

Respondent No.1 is the insurer and respondent No.2 is

the R.C. Owner of the Canter bearing Registration No.KA-

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07-9423 are jointly and severally liable to pay

compensation.

3. On issuance of notice, respondent No.1-Insurance

Company has appeared before the Tribunal through its

counsel and filed the written statement. Respondent No.

2- owner of offending vehicle remained absent and hence,

he was placed as exparte.

4. Respondent No.1 contended that petition is not

maintainable as the insured/respondent No.2 has not

complied with statutory provisions. The driver of the

Canter was not holding a valid and effective driving licence

at the time of accident and respondent No.2 has handed

over the vehicle to the said driver and therefore, has

committed the breach of the terms and conditions of the

policy. However, admitted the issuance of policy of

insurance in favour of respondent No.2 in respect of Lorry

bearing No.KA-07-9423, the liability of its Company. It

was contended that accident occurred due to the

negligence on the part of the petitioner himself, who

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without having proper look out vehicular movements, was

crossing the road in a place not meant for pedestrian

crossing and caused the accident and also alleged that the

compensation claimed is highly excessive, exaggerated,

arbitrary and speculative and prayed to dismiss the

petition.

5. On the basis of the above pleadings, the Tribunal

framed appropriate issues for its consideration and

petitioner examined himself as PW1, examined Dr. Krishna

Prasad as PW2 and marked Exs.P1 to P19. No oral and

documentary evidence were produced by the respondent.

6. The Tribunal after hearing the learned counsel for

both the sides and considering the oral and documentary

evidence available on record, awarded the compensation

of Rs.7,77,588/- together with interest at 9% p.a. and

directed the Insurance Company to deposit the same.

7. The Tribunal has awarded the compensation as

under:

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Pain and suffering Rs. 50,000/-

Loss of amenities of life Rs. 20,000/- Actual medical expenses Rs.6,67,588/- Future medical expenses Rs. 20,000/-

          Conveyance                       Rs. 06,000/-
          Attendant charges                Rs. 06,000/-
          Food, nourishment and       diet Rs. 08,000/-
          charges
          Total                            Rs.7,77,588/-

8. Being aggrieved by the said judgment and award,

the petitioner has approached this Court in appeal.

9. On issuance of notice, respondent No.1-Insurance

Company has appeared through its counsel and despite

service of notice respondent No.2 remained

unrepresented.

10. On admitting the appeal, the Tribunal records

have been secured and heard the arguments on both the

sides.

11. The learned counsel appearing for the appellant/

petitioner contends that the finding of the Tribunal that

the petitioner continued in the said job is based on a stray

admission and in fact, he has not continued in the said

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job. It is contended that there is 30% disability as per the

say of PW2 and this aspect was not properly considered by

the Tribunal. It is contended that the loss of future

prospects should have been considered by the Tribunal in

view of the fact that the petitioner could not continue his

job as Assistant Manager Engineering in his employment.

It was further contended that the assessment of the

compensation by the Tribunal is not proper and therefore,

there shall be reassessment which needs to be done.

12. Per contra, the learned counsel appearing for

respondent No.1-Insurance Company contended that it is

not a stray sentence in the cross-examination of PW1, but

there is absolutely no material on record to show that the

petitioner had really employed in the Confident Amoon

Resorts. He further contends that the Tribunal has

properly assessed the compensation and when there was

no document to show that the petitioner was employed

and in the absence of acceptable evidence through the

author of Ex.P10, the Tribunal is justified in holding that

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the petitioner has not proved that he has suffered the

disability and it affected the earning capability of the

petitioner.

13. The fact that there was an accident involving the

tanker lorry which came from behind the petitioner while

he was walking on the road and caused the accident is not

in dispute. So also, the fact that the said vehicle was

insured by respondent No.1-Insurance Company is also

not in dispute. The Tribunal has come to the conclusion

that the accident occurred due to the negligence on the

part of the driver of the tanker lorry and therefore, the

liability has to be fastened upon respondent No.1-

Insurance Company is not assailed before this Court.

Therefore, those aspects have attained finality.

14. The learned counsel appearing for the petitioner

has drawn the attention of this Court to the cross-

examination of PW1. In the cross-examination of PW1,

though initially, petitioner states that he is not working in

the said employment, in the later part of his cross-

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examination, he admits that he has continued in the job.

It is evident in the cross- examination of PW1 at page

No.6 that he denied that now also he is working in the

same company and later he says that now also he is an

employee in the same company i.e. M/s Confident Amoon

Resorts. Based on this admission of PW1, the Tribunal has

not considered the loss of future prospects.

15. A perusal of Ex.P9, the letter of indent shows

that M/s Confident Palaces, Hotels and Resorts had

offered the job to the petitioner as Assistant Manager-

Engineering and he has to commence his duty from

9-1-2015. This letter is accompanied by annexures,

wherein, the pay particulars of petitioner are mentioned

and the pay was to the extent of Rs.30,570/-. Further, the

petitioner has produced the few pay slips at Ex.P10 which

show that for the Month of 26th February to 25th March,

he was paid a gross salary of Rs.28,367/- and after

deduction, his net pay was Rs.26,280/-. Exactly, the same

salary was also drawn by him as per the pay slip for the

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month of 26th January 2015 to 25th February 2015. The

letter of indent produced at Ex.P11 shows that petitioner

was on probation for a period of three months. There are

no reasons as to why pay slips for the subsequent months

till the date of accident i.e. May 2015 are produced by the

petitioner.

16. It is relevant note that Ex.P9 and Ex.P10 are

issued by the alleged Confident Palaces, Hotels and

Resorts and Confident Resorts and Retreats (India)

Private Limited. but none of the authorized officers of the

said company had come before the Tribunal to say that in

fact, the petitioner was employed in the said company.

Therefore, Ex.P9 and Ex.P10 are not proved as required

under law. In order to accept Ex.P9 and Ex.P10, the

petitioner should have examined an official of the

employer. Therefore, Ex.P9 and Ex.P10 having not been

proved in accordance with law, it could not have been

said that the petitioner continued to work in the said

company or he was earning the salary as claimed by him.

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17. It is pertinent to note that the cross-examination

of PW1 does not show what was the nature of the work

entrusted to PW1. The petitioner says that he was an

administrator in the said Resort. However, Ex.P9 shows

that he was Assistant Manager, Engineering. From the

available evidence, it can be deciphered that the petitioner

was supervising the work of the Engineering Division in

the Resort. Obviously, it involved movement of the

petitioner in the said Resort. Even though Ex.P9 and

Ex.P10 are not proved as required under law, so far as to

arrive at a conclusion about the earnings of the petitioner,

they can very well be relied to hold that the petitioner was

doing the job of Assistant Manager Engineering. The cross-

examination of PW1 does not show that such nature of the

job of the petitioner was not denied in any way.

18. Further, it is relevant to note that in the cross-

examination of PW1, at once stretch he denies that he has

continued to serve in the said company and in another

breath, he says that he has continued to serve in the

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company. Obviously, Ex.P9 show that the petitioner was

on probation for a period of three months. It is not known

whether he has continued in the said job. In any

circumstances, it can safely be said that the petitioner was

involved in the job of looking after the engineering works

in an establishment like of the Resort.

19. Under the above circumstances, in the absence

of any conclusive proof in respect of the income of the

petitioner, the notional income of the petitioner could have

been taken by the Tribunal. The Tribunal, obviously, did

not venture into the probable monthly income of the

petitioner at all. The accident has occurred in the year

2015. The guidelines issued by KSLSA for the purpose of

settlement of disputes before the Lok Adalats prescribe a

notional income of Rs.9,000/- per month for the year

2015. In umpteen number of decisions, this Court has held

that the wages fixed under the Minimum Wages Act are in

general conformity with the guidelines prescribed by

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KSLSA. Therefore, the notional income of the petitioner

can be safely be said to be Rs.9,000/- per month.

20. The petitioner had sustained the closed fracture

of midshaft right femur, closed fracture mid 1/3rd and

lateral 1/3rd right clavicle degloving injury left leg with

exposed lateral malleolus. The petitioner was treated

initially at Hosmat Hospital and he was inpatient from

7-5-2015 to 6-6-2015. The discharge summary at Ex.P7

discloses that there was deglolving injury and in the

hospital the fractures were treated with IMIL Nailing. He

was prescribed skin grafting and such other treatment.

Later, he was shifted to Father Muller Hospital, Mangalore

and he was inpatient from 7-6-2015 to 22-6-2015. Thus,

he was an inpatient for a period of 45 days. It is evident

that he underwent skin grafting and as such other

surgeries at Father Muller Hospital. The case sheet

produced by the petitioner at Ex.P17 show the same.

21. The petitioner has examined PW2- Dr. Krishna

Prasad, and he states that there was a massive degloving

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injury of the left ankle with severe crushing with exposure

of lateral malliolus. He states that the petitioner had

approached him for the assessment of disability and there

is non-union of the fracture of clavicle. He further states

that the left ankle has 25% disability, left knee has about

7% disability and right knee has 16% and inclusive

disability components, there is disability of about 74% to

the left lower limb. He states that the petitioner walk with

limp and needs frequent period of rest to relieve his pain,

stiffness and swelling in his left ankle. He says that left

lower limb is totally deformed and he has multiple donor

site scars on his thighs as the skin grafting was done. He

further states that the petitioner need implant removal

which would cost Rs.50,000/- and ankle fusion and also

bone grafting is required for clavicle fractures which would

cost him Rs.1.2 lakhs each. Apart from that he states that

the application of the Vaseline over the skin grafted areas

is necessary for the rest of his life which would cost him

Rs.10,000/- per year. The cross- examination of PW2 has

not shown anything which would negate his say. However,

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he admits that he has not treated the petitioner while

petitioner was in the hospital.

22. From the perusal of above evidence on record, it

is evident that the petitioner being the Assistant Manager

Engineering in the Resort, his movement has become

difficult. In any such similar avocation also, the petitioner

is unable to move freely as earlier. This has definitely

resulted in a disability to the petitioner. The functional

disability of the petitioner has to be assessed by the Court

based on the physical disability stated by PW2. Though

PW2 states that there is a disability to the extent of 6% on

account of the fracture to clavicle, I am unable to accept

this contention as the clavicle is only a cosmetic bone in

the anatomy of body of the human being. Therefore, 74%

disability attributed to the left lower limb has to be

considered and translated into the functional disability.

Considering the difficulties stated by PW1 as well as the

assessment of PW2, this Court holds that the functional

disability of the petitioner would be 15%.

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23. The petitioner, evidently is unable to prove his

employment as well as the income. Though there is a

stray admission in the cross-examination of PW1 that he

has continued the job, there is no material on record to

establish the same. Under these circumstances, this Court

holds that the Tribunal should have considered the

notional income of the petitioner and should have

calculated the comparative hardship and loss of earning

capacity of the petitioner vis-a-vis the nature of avocation

stated by him. Hence, the Tribunal has obviously lost sight

of the functional disability of the petitioner and erred in

holding that the stray admission of the petitioner would

disentitle him from claiming any loss of future earnings.

24. In view of the above, the loss of future earning is

calculated as: Rs.9,000/- x 12 x 13 x 15%=Rs.2,10,600/-

by adopting a multiplier of '13' for the age of 48 years.

25. The Tribunal has awarded a sum of Rs.50,000/-

under the head of 'pain and suffering' and in the

considered opinion of this Court, the same needs to be

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enhanced to Rs.75,000/- having regard to the degloving

injury suffered by the petitioner.

26. Medical expenses are awarded by the Tribunal

based on the bills and no interference is required in the

same.

27. The Tribunal has awarded the compensation of

Rs.20,000/- under the head of 'loss of amenities in life', in

the considered opinion of this Court, the same needs to be

enhanced to Rs.40,000/-.

28. The Tribunal has awarded a sum of Rs.20,000/-

under the head of 'future medical expenses'. Having

regard to the say of PW2, though the sum of

Rs.1,20,000/- on two counts is stated by him, the actual

estimate of such requirements are not available.

However, the skin grafting needs a constant treatment as

stated by PW2. Therefore, a sum of Rs.40,000/- is

awarded to the petitioner under this head.

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29. The Tribunal has awarded a sum of Rs.6,000/-

each under the head of 'conveyance' and 'attendant

charges', having regard to the fact that the petitioner had

to take the treatment at Father Muller Hospital at

Mangalore and has to attend several follow up visits, the

compensation under this heads needs to be enhanced to

Rs.10,000/- each.

30. The Tribunal has also awarded a sum of

Rs.8,000/- under the head of 'food, nourishment' and the

same needs to be enhanced to Rs.10,000/-.

31. The Tribunal has not considered the

compensation to be awarded under the head of 'loss of

income during the laid up period'. Having regard to the

nature of the injuries suffered by the petitioner, it can

safely be said that he was unable to resume his work

atleast for a period of six months. Hence, a sum of

Rs.54,000/- (9,000/- x 6) is awarded to the petitioner.

Thus, the petitioner is entitled for a total compensation of

Rs.11,17,188/- under following heads:

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Pain and suffering                          Rs. 75,000/-
Loss of amenities of life                   Rs. 40,000/-
Actual medical expenses                     Rs. 6,67,588/-
Future medical expenses                     Rs. 40,000/-
Conveyance                                  Rs. 10,000/-
Attendant charges                           Rs. 10,000/-
Food, nourishment and diet charges          Rs. 10,000/-
Loss of future earnings                     Rs. 2,10,600/-
Loss of income during laid up period        Rs.    54,000/-
Total                                       Rs.11,17,188/-
Less: Awarded by the Tribunal               Rs. 7,77,588/-
Enhancement                                 Rs. 3,39,600/-

32. Thus, the petitioner is entitled for a sum of

Rs.3,39,600/- in addition to what has been awarded by the

Tribunal along with the interest and the appeal filed by

the petitioner deserves to be allowed in part. Hence, the

following:

ORDER

(i) The appeal filed by the petitioner is

allowed in part.

(ii) The judgment and award passed in MVC

No.2434/2015 on 20-08-2016 by the Tribunal

is modified. The petitioner is entitled for a sum

of Rs.3,39,600/- in addition to what has been