Karnataka High Court
Sri Anil Kumar M vs The New India Assurance Company Ltd on 1 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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MFA No. 95 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
MISCELLANEOUS FIRST APPEAL NO. 95 OF 2021 (MV-I)
BETWEEN:
SRI. ANIL KUMAR M
AGEDA BOUT 59 YEARS,
S/O RAMACHAR M,
R/A NO.3091, 4TH MAIN,
4TH CROSS, WATER TANK ROAD,
KUMARASWAMY LAYOUT, 1ST STAGE,
BENGALURU SOUTH,
JP NAGAR, BENGALURU - 560 078.
...APPELLANT
(BY SRI. NAGARAJA REDDY D., ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE COMPANY LTD.,
NO.9, 2ND FLOOR,
Digitally signed by
VEDAVATHI A K MAHALAKSHMI CHAMBERS,
Location: High MG ROAD, BANGALROE - 560 001.
Court of
Karnataka REPRESENTED BY ITS MANAGER.
2. SRI. MADHUSUDAN REDDY N
AGED ABOUT 58 YEARS,
S/O DASARADHARAMI REDDY N,
R/A NO.50/1, PALACE ROAD,
NO.125, CUNNINGHAM ROAD,
BENGALURU - 560 052.
...RESPONDENTS
(BY SRI. M. P. SRIKANTH, ADVOCATE FOR R1;
R2 SERVED, BUT UNREPRESENTED)
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MFA No. 95 of 2021
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND
AWARD DATED.02.03.2020 PASSED IN MVC NO.711/2019 ON
THE FILE OF THE IX ADDITIONAL SMALL CAUSES JUDGE AND
ACMM, COURT OF SMALL CAUSES, MEMBER, MACT-7,
BENGALURU (SCCH-7), PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant under Section 173 (1)
of the Motor Vehicles Act,1988 (for short, hereinafter referred
to as 'MV Act') against the judgment and award dated
02.03.2020 passed in MVC No.711/2019 by the IX Additional
Small Causes and Additional MACT, Bengaluru for enhancing
the compensation awarded by the Tribunal.
2. Heard the arguments of learned counsel for appellant
and learned counsel for respondents.
3. The status of the parties before the Tribunal is retained
for the sake of convenience.
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4. The case of the petitioner is that petitioner has filed
the claim petition under Section 166 of M.V. Act for claiming
compensation for the injuries sustained by him in the road
traffic accident dated 05.12.2018. It is alleged by him that on
the said day, when he was proceeding on the Motorcycle
bearing Reg.No.KA-50-K-5733 in front of BSNL Office Junction,
80 feet road, Indiranagar, a driver of the Car bearing
Reg.No.KA-03-ME-5599 drove the same without observing
traffic rules and regulations and not showing any signal
suddenly opened the Car door and due to which, the claimant
dashed to the door and fell down and sustained grievous
injuries on vital parts of the body and he was taken to the
hospital and he was treated as an inpatient and spent
Rs.1,00,000/- towards medical expenses. He was working as
Marketing Manager in Ventura Bioceaticals Pvt. Ltd., and
earning Rs.46,000/- per month and due to the injury, he lost
the income and job. Hence, he has filed the claim petition.
5. Respondent No.1-Insurer has appeared and filed
statement of objections by denying the accident in question
and also contended that the driver of the vehicle did not have
any valid licenses at the time of the accident. The vehicle was
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insured with the respondent No.1 in favour of respondent No.2.
Hence, prays for dismissal of claim petition.
6. Respondent No.2 has also filed objections by denying
the nature of accident. However, it is contended that vehicle
was insured with the respondent No.1. Hence, prays for
dismissal of this petition.
7. Based upon the pleadings, the Tribunal has framed the
following issues:-
1. Whether the Petitioner proves that he has
sustained injuries on account of road
traffic accident took place infront of BSNL
office, 80 feet road, Indiranagar,
Bengaluru due to rash and negligent
driving of the driver of the Car bearing
registration No.KA-03-ME-5599 dated
05.12.2018 at about 4.20 a.m., as
alleged in the petition?
2. Whether the Petitioner is entitled for
compensation? is so, how much and from
whom?
3. What Order or Award?
8. The claimant to prove his case, examined himself as
P.W.1 and got marked 20 documents i.e., Exs.P.1 to P.20 and
examined Doctor as P.W-2 and got marked two documents i.e.,
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Exs.P.21 and P.22. The respondents have not produced any
evidence.
9. After hearing the arguments, the Tribunal has
answered issue No.1 in the Affirmative, issue No.2 Partly in the
Affirmative and awarded compensation of Rs.2,69,387/-
which is as under:-
Heads Amount in Rs.
For pain and sufferings, 50,000-00
mental agony
Actual medical expenses 1,39,387-00
For Special diet and 10,000-00
Conveyance
Loss of amenities 50,000-00
Future medical expenses 20,000-00
TOTAL 2,69,387.00
10. Being aggrieved by the same, the claimant is before
this Court.
11. Learned counsel for the appellant has contended that
the Tribunal has committed an error in not awarding any
compensation towards the loss of future income due to
disability. The Doctor was examined and he has given disability
certificate stating that the claimant has suffered 23% disability
to the whole body and due to the accident, he is unable to
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attend the work. Therefore, he should be awarded under the
head 'loss of income during laid up period' and also contended
that the petitioner has left his job and is unable to work.
Therefore, he has totally lost the income and the same was not
properly considered by the Tribunal. The Tribunal has awarded
a sum of Rs.20,000/- towards future medical expenses wherein
the Doctor has stated that the claimant requires Rs.60,000/- to
Rs.70,000/- for future medical expenses. Therefore, the
claimant prays for enhancing the same.
12. Per contra, learned counsel for the respondents
supported the judgment and award passed by the Tribunal
contending that the petitioner has given oral evidence that he
has lost the job but no documents are produced and no
employer has been examined before the Court to show that he
has lost the job due to the injuries whereas, he is a permanent
employee getting salary under various heads i.e., HRA and
other allowances. Such being the case, the oral contentions
that he has lost the job cannot be accepted and no documents
are produced before the Court to prove that he has lost the job
and income. The claimant is a permanent employee and he
has continued to work in the same company. Such being the
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case, question of granting any compensation towards 'loss of
future income due to disability' does not arise. Hence, prays
for dismissal of the appeal.
13. Having heard the arguments and on perusing the
records, the point that arises for my consideration is as under:-
Whether the appellant is entitled for the
enhanced compensation as prayed for?
14. On perusal of the records, the accident in question
dated 05.12.2018 has occurred due to the sudden opening of
the door by the driver of the Car bearing No.KA-03-MV-5599 is
not in dispute. Charge sheet is also filed against the driver of
the Car for the offences punishable under Sections 279 and 338
of IPC. The only contention before this Court is with regard to
the quantum of compensation to be enhanced.
15. The petitioner said to be working as a Marketing
Manager in a private firm earning Rs.38,720/- per month. The
petitioner has contended that he was admitted in the hospital
for 6 days and there was a fracture of right tibia and air crack
fracture. He has also taken treatment as an out patient and
could have taken rest for 1 or 2 months. Therefore,
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considering the same, I deem it appropriate to consider the laid
up period for atleast two months. But the Tribunal has not
granted any amount under this head. Therefore, compensation
has to be awarded under this head. Hence, an amount of
Rs.77,440/- (Rs.38,720/- x 2) is awarded under the head
'loss of income during laid up period'.
16. Towards 'pain and sufferings', the Tribunal has
awarded a sum of Rs.50,000/-, which is just and proper and
needs no interference.
17. Towards medical expenses, the Tribunal has awarded
a sum of Rs.1,39,387/-. Though the respondents' counsel
contended that the claimant has got reimbursed the said
amount by his company, but the salary certificate of the
claimant reveals that towards reimbursement of the medical
expenses, there was some deduction in his salary. Such being
the case, the question of deducting the medical expenses does
not arise. Hence, the petitioner is entitled for the medical
expenses as it is.
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18. Towards 'Special diet and Conveyance', the Tribunal
has awarded a sum of Rs.10,000/-, which is just and proper
and needs no interference.
19. Towards 'loss of amenities', the Tribunal has awarded
a sum of 50,000/-. The petitioner has suffered communited
fracture of upper end right tibia with medial collateral ligament
tear and right knee abrasion, right ankle right leg swelling.
Such being the case, there is difficult for him to sit and squat
and walk speedily and he cannot stand for long time.
Therefore, Rs.50,000/- awarded towards 'loss of amenities' is
appropriate and needs no interference.
20. Towards future medical expenses, the Tribunal has
awarded a sum of Rs.20,000/-. It is submitted by the learned
counsel for the claimant that implants fixed on the leg is still
inside and he may require future medical expenses. As per the
evidence of Doctor, he requires atleast Rs.60,000 to 70,000/-
for removing the implants. Such being the case, awarding
Rs.20,000/- by the Tribunal is not correct and therefore, I
proceed to award a sum of Rs.50,000/- towards 'future
medical expenses'.
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21. Towards 'loss of income due to disability', the Doctor
has given evidence that claimant has suffered 23% disability to
the whole body. However, the Doctor has not given what is the
disability suffered by the claimant to the particular limb in order
to come to the conclusion about the total disability to the whole
body was 23%. Though he has given some calculations
regarding disability but there is no disability as he calculated to
the leg. However, in the cross-examination, the counsel for the
respondent - insurer has contended that the petitioner has not
sustained disability to the whole body. Normally, the Tribunal
has to consider 1/3rd of the disability assessed by the Doctor,
when the Doctor examined is not a treated Doctor. Such being
the case, the Tribunal ought to have considered some disability
to the whole body if not 23% disability assessed by the Doctor.
22. Though the counsel for the petitioner contended that
the petitioner has lost his job prior to giving evidence due to
the disability suffered by him, the respondents' counsel has
brought to the notice of this Court that the petitioner is a
permanent employee as Marketing Manager and as per
employment terms and conditions, for leaving the job he has to
give notice or for terminating him, the Company is required to
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give prior notice to the employee. Therefore, mere oral
evidence stating that he has lost the job cannot be accepted as
there is no positive evidence adduced by the petitioner.
Therefore, it cannot be said that he has lost income due to the
disability. However, due to the injuries suffered by him, there
must be disability for some extent and it may affect the
petitioner in future or for any promotions or getting any
incentives in his career. Such being the case, looking into the
facts and circumstance, I proceed to consider some disability to
the whole body even if the petitioner is working or not.
Therefore, it is just and appropriate to consider 1/3rd of 23%
i.e., the disability assessed by the Doctor, which comes to 7%
disability to the whole body. The income of the petitioner is
taken at Rs.38,720/-. The petitioner is aged about 58 years
and the multiplier applicable is '9'. Hence, an amount of
Rs.2,92,723/- (38720 x 12 x 9 x 7/100) is awarded under the
head 'loss of income due to disability'.
23. Accordingly, appellant is entitled for compensation as
under:-
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Heads Amount in Rs.
Pain and sufferings, mental 50,000-00
agony
Actual medical expenses 1,39,387-00
For Special diet and 10,000-00
Conveyance.
Loss of amenities 50,000-00
Future medical expenses 50,000-00
Loss of laid up period 77,440-00
Loss of income due to 2,92,723-00
disability
Total 6,69,550-00
24. Accordingly, I pass the following:
ORDER
i. Appeal is allowed in-part.
ii. The judgment and award dated 02.03.2020 passed in
MVC No.711/2019 by the IX Addl. Small Causes and addl.
MACT., Bangalore (SCCH-7) is modified;
iii. The appellant is entitled for compensation of
Rs.6,69,550/- together with interest at 6% per annum
from the date of petition till the date of realization.
excluding the future medical expenses.
iv. Respondents are directed to deposit the award amount
within two months from the date of receipt of a copy of
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this order, out of which, the entire enhanced amount is
directed to be released to the petitioner.
v. Draw award accordingly.
Sd/-
JUDGE
VS
CT:SK
