Karnataka High Court

New India Assurance Co Ltd vs Sri.Vishwanath on 8 December, 2023

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                                                                 NC: 2023:KHC:44842
                                                                MFA No. 6328 of 2013




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 8TH DAY OF DECEMBER, 2023

                                              BEFORE
                       THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
                                  MFA NO. 6328 OF 2013 (MV-INS)
                      BETWEEN:

                      NEW INDIA ASSURANCE CO LTD
                      REGIONAL OFFICE, #72, MISSION ROAD
                      UNITY BUILDING ANNEXE, BANGALORE-07
                      REP. BY NEW INDIA ASSURANCE COMPANY
                      M.G. ROAD, BANGALORE BY MANAGER               ... APPELLANT

                      (BY SRI R.JAIPRAKASH, ADV.)

                      AND:

                      1.     SRI.VISHWANATH
                             S/O MARISWAMI, AGED ABOUT 41 YEARS
                             R/AT C/O KANTHARAJ, NO.41, 1ST CROSS
                             II MAIN, BHAVANI NAGAR
                             RAILWAY LAYOUT, ULLAL MAIN ROAD
                             BANGALORE-560 056

                      2.     SRI. M. NAGENDRA
                             S/O MANNAJIRAO, MAJOR, NO.539
                             CHINTANAGIRI STREET, M.G. ROAD
Digitally signed by          CHANNAPATNA, RAMANAGARAM DIST-571 501
MALA K N
Location: HIGH COURT                                           ... RESPONDENTS
OF KARNATAKA         (VIDE ORDER DATED 19.3.2019;
                           SERVICE OF NOTICE TO R1 BY WAY OF
                           PAPER PUBLICATION IS ACCEPTED;
                           VIDE ORDER DATED 09.07.2014
                           NOTICE TO R2 IS DISPENSED WITH)

                           THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
                      AGAINST THE JUDGMENT AND AWARD DATED 4.4.2013
                      PASSED IN MVC NO.4478/2010 ON THE FILE OF THE 21ST
                      ADDITIONAL SMALL CAUSES JUDGE, 19TH ACMM, MEMBER,
                      MACT, BANGALORE, AWARDING A COMPENSATION OF
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                                          NC: 2023:KHC:44842
                                         MFA No. 6328 of 2013




RS.3,32,506/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT.

     THIS MFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 24.11.2023 AND COMING        ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:


                     JUDGMENT

In this appeal, the Insurance Company has

challenged the judgment and award dated 04.04.2013

in M.V.C.No.4478/2010 passed by the XXI Addl. Small

Causes Judge and M.A.C.T (SCCH-XXIII) ('the Tribunal'

for short).

2. For the sake of convenience, the parties shall

be referred to as per their status before the Tribunal.

3. Brief facts of the case are, on 20.04.2010 at

about 02:15 pm, the petitioner was riding his Honda

Activa bearing Reg.No.KA-42/H-1948 hit by a Tata

Sumo bearing Reg.No.K-18/M-5382 near L.I.C.

Office, B.M. Road, Chikkamallur, Channapatna, Taluk

injuring him. He was treated at Government

Hospital, Channapatna, NIMHANS, Victoria Hospital

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and KIMS at Bengaluru under hospitalization. After

taking treatment, the petitioner has approached the

Tribunal for grant of compensation of

Rs.10,00,000/-. Claim was opposed by the

Insurance Company. The Tribunal after taking the

evidence, awarded the compensation of

Rs.3,32,506/- with 6% interest p.a. Aggrieved by

the same, the Insurance Company has filed this

appeal on various grounds.

4. Heard the arguments of Shri R. Jaiprakash,

learned counsel for the Insurance Company.

5. It is the contention of learned counsel for the

Insurance Company that the petitioner has sustained

a head injury, after taking treatment, he became

normal, resumed his work and has not suffered any

disability. Contrary, the Tribunal has assessed whole

body disability at 34% and assessed Rs.2,47,860/-

towards loss of future income. When the petitioner

has not sustained any disability, question of

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awarding compensation towards loss of future

income is erroneous and he sought for interference.

6. I have given my anxious consideration to the

arguments addressed and also perused the materials

on record.

7. There is no dispute as to the accident, cause

of the accident, injuries sustained by the petitioner

in the said accident. The material on record did

point out that on the date of accident, the petitioner

was aged 39 years. He has completed his S.S.L.C.

He claims that he was working in M/s Kundan

Bankers, Channapatna, earning Rs.6,500/- monthly

and Rs.3,000/- by doing home tuition. In order to

establish his avocation, he has relied upon

Ex.P13/salary certificate wherein it pointed out that

the petitioner was working in pawn broking shop at

Channapatna and he was paid daily wages of

Rs.135/-, this shows his earning is Rs.4,050/-. In

addition to that, he claims that he was doing home

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tuition and earning Rs.3,000/- per month. Even if

Ex.P13 is accepted as genuine, the monthly income

will come to Rs.4,050/-. In the year 2010, a person

with no proof of income will earn not less than

Rs.5,500/- per month, whereas the petitioner claims

that he is earning Rs.6,500/-, but he produced the

certificate that shows the salary as Rs.4,050/-

instead of Rs.6,500/-. Hence, taking this into

consideration, the income of the petitioner could be

assessed at Rs.4,050/- per month.

8. The material on record did point out that the

petitioner has suffered head injury. Ex.P5/wound

certificate points out that the petitioner has suffered

extradural hematoma (EDH) in right temporoparietal

region, cut lacerated wound in left parietal area and

right calf near knee. The petitioner has been treated

under hospitalization at NIMHANS, Bengaluru and

the treatment records pertaining to NIMHANS are

made available as per Ex.P15 and 17 which points

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out the seriousness of the head injury suffered by

the petitioner and he has been diagnosed right

tempero parietal extraduro hematoma and right

temporal bone fracture undergoing surgery. In order

to explain that he has sustained the permanent

disablement, PW-2 Dr. Jamuna Rajeswaran, Addl.

Professor of Neuropsychology, NIMHANS, Bengaluru

has tendered her evidence. According to her, the

petitioner was tested with Head Injury Battery and

he has sustained 34% cognitive disability. During

the course of cross-examination, she has confirmed

that the petitioner has not suffered any deficiency in

verbal working memory. The petitioner though

claims that he has lost the Accountant job, he can do

other work and there is no material evidence that

the head injury has disabled him to the extent of

34%. Having regard to the circumstances and

gravity of the head injury with fractures, suggests

that the petitioner has sustained disability of 15%

instead of 34% as assessed by the Tribunal.

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Accordingly, compensation has to be calculated. In

a case of this nature, having regard to the head

injury, the petitioner is entitled to be compensated

with just compensation. The award of compensation

shall not be a bonanza nor a peanut. A 39 year old

person doing some clerical job, having sustained

head injury with fractures will certainly affect his

earning capacity. Hence, the argument canvassed

on behalf of the Insurance Company is not fully

persuasive.

9. The petitioner has suffered head injury with

multiple fractures. He has to be compensated

Rs.40,000/- towards pain and sufferings, He was

laid-up for about 6 months for which a sum of

Rs.24,240/- (Rs.4,050/- x 6) has to be paid.

Towards food and nourishment and attendant

charges a sum of Rs.10,000/-, travelling expenses of

Rs.5,000/-, loss of amenities and discomfort at

Rs.30,000/- and medical expenses of Rs.33,000/-

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has to be assessed. He is required to take medicines

as he suffered head injury, hence a sum of

Rs.20,000/- is assessed towards future medical

expenses. As discussed above, the petitioner has

suffered 15% disability and his income is taken at

Rs.4,050/-, future prospects of Rs.1,640/- (40%)

has to be added, then loss of future earnings comes

to Rs.4,050/- + Rs.1,640/- (40%) = Rs.5,670/- x 12

x '15' multiplier x 15% = Rs.1,53,090/-. Then, the

total compensation is hereunder:

Sl. No.               Particulars                   Rs.

     1    Pain and sufferings                       40,000

     2    Loss of income during laid-up for         24,240
          6 months (Rs.4,050/- x 6)

     3    Food, nourishment and attendant           10,000
          charges

     4    Travelling expenses                        5,000

     5    Loss of amenities and discomfort          30,000

     6    Medical expenses                          33,000

     7    Future medical expenses                   20,000

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   8           Loss of future earnings                               1,53,090

                                Total                               3,15,330




         10.    The    petitioner        is        entitled        to        total

compensation          of     Rs.3,15,330/-                  as       against

Rs.3,32,506/-, thereby reduction of Rs.17,176/-.

Accordingly, the appeal merits consideration, in the

result, the following:

ORDER

i) Appeal is allowed in part.

ii) Impugned judgment and award is modified.

iii) The petitioner is entitled to total compensation of Rs.3,15,330/- with interest of 6% p.a. from the date of petition till the date of deposit, excluding interest on future medical expenses.