Karnataka High Court
Mr. Syam Prakash T.S vs M/S Oriental Insurance Company Limited on 8 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 8116 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 8116 OF 2016 (MV-I)
BETWEEN:
MR. SYAM PRAKASH T.S.
S/O. OF THANKAPPAN O.
AGED ABOUT 39 YEARS,
NO.111/2, CVSR HOMES,
G-1, II CROSS, REDDY'S LAYOUT,
T.C.PALYA ROAD, RAMURTHY NAGAR,
K.R.PURAM, BENGALURU 560 016.
...APPELLANT
(BY SRI. GIRISH K.V., ADVOCATE)
AND:
1. M/S. ORIENTAL INSURANCE COMPANY LIMITED,
NO.19/1, IST FLOOR,
III CROSS, CHIKKANNA GARDEN,
SHANKAR MUTT COMPOUND,
SHANKARPURAM
BENGALURU 560 040.
REP. BY MANAGING DIRECTOR.
2. D. KUMAR,
S/O. LATE DEVE GOWDA,
AGE: MAJORNO.24, 4TH CROSS
2ND MAIN ROAD,
-2-
MFA No. 8116 of 2016
GOVINDRAJNAGAR,
BENGALURU 560 040.
...RESPONDENTS
(BY SRI. C.R.RAVISHANKAR, ADVOCATE FOR R1
NOTICE TO R2 IS DISPENSED WITH V/O/DATED 29.07.2021)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.30.01.2016 PASSED IN MVC NO.6600/2013 ON THE FILE OF
THE 5TH ADDITIONAL SMALL CAUSES JUDGE AND XXIV
A.C.M.M. MEMBER, MACT, MAYOHALL UNIT, BENGALURU
(SCCH-20) PARTLY ALLLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal has been filed by the appellant against
the impugned judgment and award dated 30th January
2016 in MVC No.6600/2013 passed by the MACT and V
Additional Judge, Court of Small Causes, Mayo Hall Unit,
Bengaluru, urging various legal grounds and contentions
for enhancement of compensation in the case of motor
accident wherein the Tribunal has awarded compensation
of a sum of `5,00,000/- under various heads with interest
at the rate of 9% p.a. from the date of filing the petition till
the date of its realisation.
The brief facts of the case are stated hereunder:
2. It is the case of claimant before the Tribunal
that, on 6.4.2012 at about 1.45 a.m., when he was
proceeding in a Tata Indica Car bearing Registration No.
KA-02-AA-9662 along with his wife, daughter and other
passengers on National Highway No. 206, Kadur Town,
Chikkamagalur District, near Pragna School, the driver of
the said car drove the car in a rash and negligent manner
and dashed against a stationed KSRTC Bus bearing
Regn.No.KA-31/F-1061. Due to the said impact, the
claimant sustained grievous injuries. Immediately, he was
shifted to Nanjappa Hospital, Shivamogga, wherein he took
the treatment as in-patient. Thereafter, on the advise of
the doctor, he was taken to BGS Hospital, Kengeri,
Bengaluru for higher treatment.
3. It is the further case of the claimant that, he has
spent more than `5,50,000/- towards medical expenses,
Food and Nourishment and transportation and other
charges. He also had to spend more than `5,00,000/-
towards future medical expenses. Thus, he has claimed a
total compensation of sum of `3 crores.
4. It is his further case that prior to the accident,
he was hale and healthy, aged 35 years, was working as
Software Engineer at Values Soft Solutions Pvt.Ltd.,
K.R.Puram, Bengaluru. According to him, he was earning a
salary of `44,000/- per month at that time. It is his further
case that due to the accidental injuries, he has suffered
pain and mental agony. Now he is unable to continue his
duties as a Software Engineer. He has been disabled and
he cannot work as he was working prior to the accident.
5. He has further stated that, as the said accident
has taken place because of rash and negligent driving by
the driver of the Tata Indica Car bearing KA-02/AA-9662,
the first respondent being the Insurer and the second
respondent being the owner of the car are jointly and
severally liable to pay the compensation. Hence, he prayed
before the Tribunal to award the compensation as prayed
for.
6. Pursuant to the notice issued by the Tribunal,
the first respondent appeared through its counsel and filed
its written statement. The second respondent despite
service of notice, did not appear before the Tribunal,
hence, he was placed ex parte.
7. The respondent No.1-Insurance Company in its
written statement, denying all the assertions made in the
claim petition with regard to income, avocation of the
claimant as well as loss of income, amenities etc.., has
specifically contended that, there was no rash and
negligent driving of the car by its driver in the manner as
stated by the claimant. It is also contended that the
liability of respondent no.1 is subject to terms and
conditions of the policy. It is also contended that the
petition filed by the claimant is bad for non-joinder of
necessary parties. Thus, it was prayed by respondent
no.1.to dismiss the petition.
8. Based upon the pleadings of both the parties,
the Tribunal framed in all four issues, they read as under:
"1. Whether the petitioner proves that, on
6.4.2012 at about 1.45 a.m. when the
petitioner was passenger in Tata Indica Car
bearing Reg.No.KA-02/AA-9662 along with wife
and daughter, at that time one KSRTC bus
bearing Reg.No.KA-31/F-1061 came from high
speed and dashed against the said car, due to
impact, petitioner was sustained grievous
injuries?
2. Whether the 1st respondent proves
that, the driver of said Tata Indica Car had no
valid and effective driving licence to drive the
same as on the date of the accident?
3. Whether the petitioner is entitled for
compensation? If so, to what amount and from
whom?
4. What order or award?"
9. Before the Tribunal, in order to prove his case,
the claimant got himself examined as PW.1, also examined
one Dr.Santhosh N.U as PW.2, produced and got marked
the documents from Exs.P-1 to P-33. On behalf of the
respondents, no witnesses were examined however, one
document - Insurance Policy was got marked as Ex.R1.
10. After hearing the arguments and on perusal of
the records, the learned Tribunal by the impugned
judgment and award dated 30.01.2016 held that, the
accident took place due to rash and negligent driving of
offending Indica car, as a result of which, the appellant
suffered injuries and awarded pecuniary as well as non-
pecuniary damages. The Tribunal awarded the
compensation under different heads as per table below:
HEADS AMOUNT
1. Pain and suffering `30,000-00
2. Conveyance, Attendant `25,000-00
Charges and Nourishing
food etc.
3. Medical Expenses `2,25,000-00
4. Loss of pay during `1,20,000-00
treatment period
4. Loss of amenities in life `1,00,000-00
TOTAL ``5,00,000-00
11. Being aggrieved by the said award of the
Tribunal, the claimant has preferred this appeal before this
Court praying for enhancement of the compensation on the
ground that the Tribunal ought to have awarded the
compensation as prayed for by the claimant on the basis of
the evidence placed on record.
12. The respondent No.1 Insurance Company is
represented by its learned counsel. Notice to respondent
No.2 is dispensed with vide Court order dated 29.7.2021.
13. The records from the Tribunal were called for
and same are placed before the Court.
14. Heard the learned counsel for both parties and
perused the materials placed before this Court including
the impugned judgment and award and the records of the
Tribunal.
15. For the sake of convenience, the parties would
be henceforth referred to as per their rankings before the
Tribunal.
16. During the pendency of this appeal, the
appellant has filed I.A.II/2016 on 30.11.2016 under Order
XLI Rule 27 of CPC to produce additional evidence. Along
with the application, he has produced, one document
showing that he has been relieved of his services in which
he was working i.e. with Inncrewin Technologies Pvt. Ltd.,
According to the claimant, now he is not working and he is
relieved of his duties as Software Engineer from that
Company. As such, he prays to take into consideration the
document filed in support of his contention.
17. Learned counsel for the appellant-claimant in his
arguments submits that, due to the accident, the claimant
sustained grievous injuries. Further, the doctor has also
opined that the claimant has sustained 40% intellectual
disability, 10% carnial nerve disability and 20% sensory
system disability and assessed the disability to the whole
body at 56.8%. Further, the Tribunal has awarded
compensation towards `pain and suffering' to the extent of
`30,000/- which is quite low. So also the claimant has
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spent sufficient amount towards conveyance, nourishment,
medical expenses so also he has lost his income during the
laid up period and, amenities etc. It is his further
submission that, the Tribunal has not taken into
consideration the evidence of the doctor who has deposed
before the Tribunal. Without assessing the evidence
properly, the Tribunal has awarded a meagre
compensation. Therefore, it is prayed by the counsel for
the claimant/appellant to enhance the compensation
awarded by the Tribunal.
18. In support of his submission, he relied upon
judgment of Hon'ble Supreme Court in R.D.Hattangadi
vs. Pest Control (India) Pvt. Ltd., 1 wherein it has been
categorically stated, in injury cases, compensation ought to
be assessed as pecuniary damage i.e. cost incurred by the
claimant and special damages which includes damages for
mental and physical shock, loss of amenities, loss of
expectation of life and inconvenience.
(1995) 1 SCC 551
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19. Per contra, the learned counsel for the
respondent No.1 Insurance Company submits that, the
present appeal is filed by the claimant challenging the
impugned award passed by the Tribunal. According to him,
whatever compensation so awarded by the Tribunal is just
and proper. By filing this appeal, though the claimant has
sought for enhancement of the award, but, the Tribunal,
after considering the evidence placed on record has rightly
awarded the compensation. There is proper appreciation of
evidence. He further submitted that the doctor who was
examined as PW.2 is not a treating doctor even according
to the claimant, but, he has just medically examined him
and issued certificate of disability. As per the evidence of
PW.1 claimant himself after the accident, though he was
earning `44,000/- prior to the accident, he changed the
company and his salary was enhanced. Now by producing
the additional evidence, the claimant is claiming that he
has been relieved of his duties, therefore, now he is
unemployed which cannot be accepted as a truthful
evidence.
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20. It is his further submission that, the claimant
has wrongly claimed enhancement towards various heads
as stated in the appeal memo. There cannot be any loss of
future income as still the appellant is working and earning
more than what he was earning prior to the accident.
Therefore, there was no loss of income as alleged by the
claimant. It is further submitted that, the claimant has not
suffered any physical disability and has not produced any
document to substantiate his contention regarding his
disability, as such, now he cannot say there is a functional
disability.
21. It is further submitted by the counsel for
respondent no.1 that there are no legal or factual grounds
to interfere into the reasonable award passed by the
Tribunal wherein just compensation has been awarded.
Therefore, it is prayed by respondent no.1 to dismiss this
appeal as devoid of merits.
22. We have given our anxious consideration to the
arguments of both the side. Having heard the learned
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counsel appearing for the parties and having gone through
the materials on record, the question that arise for our
consideration are as to -
Whether, the appellant-claimant has
made out any case for further enhancement
of the amount of compensation?
23. It is settled principles of law that, "money
cannot bring back any physical frame that has been
battered." This principle was laid down in H.West and
son Ltd., vs. Shepherd2 is consistently followed by
various Courts in India also. It is now well settled position
of law that, even in the case of permanent disablement
incurred as a result of motor accident, the claimant can
seek apart from compensation, for future loss of income.
The Hon'ble Apex Court in catena of judgments
emphasised time and again that `Just Compensation'
should include all elements that would go to place the
victim as in earlier position he or she was before the
occurrence of the accident. It is true that, no money or
1964 AC 326
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other material compensation can erase the trauma, pain
and suffering that a victim undergoes after the serious
accident. Monetary compensation is the manner known to
law whereby, Society assures measure of restitution for
survival of the victim.
24. The Hon'ble Apex Court in Rajkumar vs. Ajay
Kumar3 has considered the heads under which
compensation is to be awarded for personal injuries. The
heads under which compensation awarded in personal
injury cases are the following:
1. Pecuniary damages (Special
damages):
i) expenses relating to treatment,
hospitalization, medicines, transportation,
nourishing food and miscellaneous
expenditure.
ii) loss of earnings (and other gains)
which the injured would have made had he
not been injured, comprising;
(2011) 1 SCC 343
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a) loss of earning during the period of
treatment
b) loss of future earning on account of
permanent disability
iii) Future Medical Expenses:
Non pecuniary damages (general damages)
iv) Damages for pain, suffering and
trauma as a consequence of the injuries,
v) Loss of amenities and/or loss of
prospects of marriage.
vi) Loss of expectation of life (shortening of
normal longevity)
25. It is settled principle of law in R.D.Hattangadi's
case supra, that while fixing an amount of compensation
payable to a victim in an accident, the damages have to be
assessed separately as pecuniary damages and special
damages.
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26. In Pappu Deo Yadav vs. Naresh Kumar and
others4, the Hon'ble Apex Court held that Court should not
adopt stereo typical or myopic approach but, instead, view
the matter taking into account the realities of life, both in
the assessment of the extent of disabilities and
compensation under various heads.
27. In this case, the Tribunal considering the
evidence placed on record by the claimant, has awarded
the compensation to the extent of `5,00,000/-. Now, what
is to be seen as emphasised by the decisions of the Hon'ble
Apex Court is, the impact of injury upon the earning
capacity of the victim. The loss of limb and its severity on
that account is to be judged in relation to the profession,
vocation or business of the victim. There cannot be blind
arithmetic formula for ready application.
28. Now let us proceed to examine the appellant's
claim for enhancement of compensation awarded to him by
(2022) 13 SCC 790
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the Tribunal. PW.1 being the claimant has reiterated the
assertions made in the petition. As per the wound
certificate, the injuries found on the claimant and as
narrated by PW.2 the doctor in his examination-in-chief are
as under:
(a)Sutured wound over Right
Suprorbital ridge
(b)Sutured wound over left
Supraoribtal Ridge
(c) Fracture oribit
(d) Leforte Fracture type II
(e) Optic Nerve Applexy
(f) Frarumatic Brain Injuries and
other injuries.
29. According to the claimant after necessary
treatment at Govt.Hospital, Kadur thereafter at Nanjappa
Hospital, Shivamogga, he was referred to BGS Global
Hospital, Kengeri, Bengaluru, there POP cast was applied,
operation was conducted, internal fixation was done and
other necessary treatment was administered on him. After
discharge, even he was advised to undergo the physio-
therepy treatment. Thus, according to him he has spent
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more than `5,00,000/- for treatment both as in-patient as
well as out patient.
30. According to his evidence, because of the
accidental injuries, he is unable to comb the hair, often he
gets headache, giddiness, loss of memory and unable to
see properly. He is also experiencing blur image while
seeing, unable to do any normal activities, unable to hold,
lift any objects, unable to drive any vehicle, not able to
squat, sit, stand, jump, climb and not able to squat. Thus,
according to him, his normal activities are hampered. Thus,
claimant claims that he has suffered permanent disability.
31. As per to the doctor's evidence, when he
examined the claimant on 31.8.2015, he noticed following
physical deformities on the person of the claimant. They
read as under:
* Intellectual disability- 40%
(Neuropsychological assessment report dated
16/04/2015).
* Speech disability- Nil
* Cranial nerve disability- 10% (Audiometry
report dated 11/04/2015).
* Motor system disability -Nil
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* Sensory system disability 20%
* Bladder disability Nil
* Post head injury, epilepsy and fits- Nil
32. Hence he has Global disability of 56.8% as on
31/08/2015. Thus, the doctor has assessed disability at
56.8% as on 31.8.2015. He has been cross-examined by
counsel for respondent no.1. He has stated in his cross-
examination that, he was not a treating doctor and based
upon the documents, he came to know the nature of
treatment administered on the claimant. Based upon WHO
AIMS guidelines, he has issued the disability certificate. As
he was not a treating doctor, it is hard to believe the
evidence of the doctor. His evidence shows that, for the
purpose of speaking about the disability, this PW.2 has
been examined by the claimant. Nothing prevented PW.1
claimant to examine the doctor who has treated him. The
doctors who have treated are the best witnesses to speak
about the disability. Based upon the documents only, PW.2
has given his evidence.
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33. So far as documentary evidence is concerned,
Ex.P7 is the discharge summary issued by Nanjappa
Hospital, Shivamogga wherein from 6.4.2012 6.25 a.m. till
11.4.2012 claimant took treatment as an in-patient. He
was diagnosed with head injury with laffods II with Saha
due to road traffic accident. The clinical investigation was
done. CT scan was taken. The various tests have been
conducted. It was the impression of the Radiologist that
there was fracture of medial and lateral valve right orbit,
interior and lateral wall, maxillary sinus, right zogomatic
arch and right nasal bone and Minimal subramild bleeding.
34. As per the X-ray, all other organs were in tact.
Ex.P8 is the discharge summary issued by BGS hospital,
Bengaluru wherein on 14.4.2012 he was admitted as in-
patient and surgery was conducted on 19.4.2012.
Thereafter, on 23.4.2012, the claimant was discharged. At
BGS Hospital, he was diagnosed as under:
1. Traumatic brain injury
2. Laffods fracture type II
3. Fracture orbit
4. Optic nerve apoplexy
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35. To show that the claimant is still under
treatment, except the evidence of PW.1, no evidence is
placed on record by the claimant. The claimant has claimed
that he has spent more than `5,50,000/- towards medical
expenses, but, has produced the medical bills at Ex.P9
amounting to `2,31,308/-. The Tribunal has awarded the
said amount considering the medical bills and
prescriptions. We do not find any reason to enhance the
same.
36. So far as loss of future income because of
disability is concerned, the Tribunal has come to the
conclusions that, he was Software Engineer as per the
evidence placed on record at Value Soft Solutions Pvt.Ld.,
K.R.PUram Bengaluru, prior to the accident and was
earning a sum of `44,000/- per month. To prove the said
fact, he has produced letter of appointment as per Ex.P11.
He also has produced pay slips from Ex.P14 to P20. Thus,
these documents prove that, prior to the accident, monthly
salary of the claimant was `48,000/-. In the cross-
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examination as culled out above, it is his evidence that
prior to the accident, he was earning `48,000/- per month,
and subsequently he joined Inncrewin Technologies and
earning a salary of `50,000/- per month. He joined the
said company during July 2015. That means as per the
findings of the Tribunal, now he is working in another
company and continuing his profession as a Software
Engineer. He is earning more salary than what he was
earning prior to the accident. Therefore, the Tribunal has
come to the conclusion that, there is no question of
granting any compensation towards loss of future income.
That means the disability so alleged by the claimant has
not affected his earning capacity. Therefore, the Tribunal
has not awarded any compensation towards loss of future
income due to permanent disability. Though the doctor has
assessed the physical disability, but, in view of admission
in cross-examination, as he is still working, the question of
awarding compensation towards loss of income due to
disability does not arise at all.
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37. However, the claimant has filed I.A.II/2016 by
invoking the provisions of Order XLI Rule 27 of CPC
seeking leave of the Court to produce additional evidence,
wherein, along with his I.A. he has produced the document
issued by Inncrewin Technology private Ltd.,. It shows
that, he joined the service in the said company on
1.7.2015 and resigned on 01.06.2016. He was relieved on
01.06.2016 itself. For what reason the claimant has
resigned his job is not made clear. Initially he was working
in Values Soft Solutions Pvt.Ltd.,, K.R.Puram, Bengaluru
and was earning `48,000/- and after accident, he joined
this new company called as Inncrewin Technolgoy
Pvt.Ltd.,. From there also he resigned. What was the
reason for resigning Value Soft Solutions and resigning
from service of Inncrewin Technology Pvt.,Ltd., is not
made clear. That means, there is no termination of the
claimant from both the companies. Though it is the
evidence of PW.1 that, he has been terminated, but, his
own document itself shows that he has not been
terminated from the aforesaid company. He voluntarily
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resigned from the first company and joined the second
company after the accident. Therefore, self-serving
document produced by claimant is not at all helpful to his
case. There is no concrete evidence that, now the appellant
is unemployed. Therefore, rightly the Tribunal has come to
the conclusion that, there is no loss of any future income
due to disability. The Tribunal has rightly denied the
compensation towards loss of future income due to
disability. We do not find any factual or legal error
committed by the Tribunal in denying the compensation
towards the permanent disability also. Therefore,
I.A.No.1/2016 filed by the Appellant/claimant to receive
the additional evidence has no merit.
38. It has come in the evidence of claimant that,
because of this accident, from the date of accident i.e.
from 6.4.2012 to 14.7.2012, he was under treatment.
From the date of accident he was admitted in the hospital
both at Nanjappa Hospital, as well as BGS Hospital. For
about three to four months he was under medical
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treatment. A medical certificate is produced by the
claimant as per Ex.P26 issued by the BGS hospital on
30.1.2014. Therefore, as per the evidence of the claimant,
from 06.04.2012 to 14.12.2012 he was under treatment.
This period was required to the claimant for medical
treatment to get his health restored to its earlier position.
He was also treated in the BGS hospital from 14.12.2012
to 23.12.2012 as per the discharge summary. As rightly
observed by the Tribunal, except the aforesaid discharge
summary, no other document is produced by the claimant
to show that, he abstained from his duties for a period of
three years because of this accidental injuries. No such
document is produced. The Tribunal by calculating his
absence from duties, has rightly awarded `1,20,000/-
towards loss of income during the laid up period, which, in
our opinion is just and proper. Therefore, whatever the
award towards loss of income during laid- up period is just
and proper.
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39. While assessing the evidence on record, we are
of the opinion that, the award of the Tribunal to some
extent deserves to be modified so that the claimant
receives proper and just compensation for the injuries
suffered by him. It is well settled that, compensation for
personal injuries is higher as compared to fatal cases, since
in the former case, it is to be utilised by the survivor/victim
of the accident and in the latter by the legal heirs. It is
true that the compensation cannot bring back the victim to
the stage he enjoyed before the accident, but, it would
provide him some solace and security for future.
40. As discussed above, the appellant/claimant has
suffered fractures as well as other injuries as noticed by
the doctor that means there is loss of bodily integrity gives
a right to damage even if there is no damage at all to the
earning capacity or even to enjoyment of life. But,
damages in such cases are awarded commensurate with
the extent, gravity and duration of the injury. The test in
the case of bodily injury ought to be as to whether the
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breaking of the physical integrity is of a temporary nature
or permanent nature and what impact i.e. to what extent is
the physical incapability or temporary or permanent
disability will be reflected in the earning capacity of the
injured.
41. Keeping the aforesaid settled principle, the
learned Tribunal though awarded compensation towards
`pain and suffering' to the extent of `30,000/-, looking to
the gravity of the injuries, if the compensation so awarded
under the head `pain and suffering' is enhanced to the
extent of `50,000/- from `30,000/-, it would meet the ends
of justice. Therefore, appellant/claimant is entitled for
enhanced compensation of `20,000/- in all.
42. Accordingly, we proceed to pass the following :
ORDER
[i] The Appeal filed by the appellant is
allowed in-part,
[ii] I.A.2/2016 filed under Order XLI Rule
27 of CPC, is dismissed.
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[iii] The impugned judgment and award
dated 30.01.2016, passed by the learned V
Addl.Senior Civil Judge and XXIV Addl.Chief
Metropolitan Magistrate, Motor Accidents Claims
Tribunal, Mayohall Unit, Bengaluru, in
M.V.C.No.6600/2013, is hereby modified to the
extent that the compensation awarded at
`5,00,000/- is enhanced by a sum of `20,000/-
(Rupees Twenty thousand only) thus, fixing
the total compensation at `5,20,000/- (Rupees
Five Lakhs Twenty Thousand only).
[iv] Enhanced amount may be released in
favour of the claimant immediately after its
deposit.
[v] The rest of the order of the Tribunal
with respect to fixing the liability upon the
respondents and directing respondent No.1 -
Insurance Company to deposit the awarded
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amount, awarding the interest, its rate, shall
remain unaltered.
Draw the modified award accordingly.
Registry to transmit a copy of this judgment along
with records to the concerned Tribunal without delay.
Sd/-
JUDGE
Sd/-
JUDGE
Sk/-
