Karnataka High Court
Sri. Abdul Jalil vs United India Insurance Co on 3 June, 2024
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MFA No. 590 of 2023
NC: 2024:KHC:18811-DB
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MS JUSTICE J.M.KHAZI
M.F.A NO.590 OF 2023 (MV-I)
BETWEEN:
SRI. ABDUL JALIL
S/O MOOSABBA K
AGED ABOUT 30 YEARS,
SINCE THE APPELLANT IS IN BED RIDDEN
REPT. BY HIS NATURAL GUARDIAN MOTHER
SMT. SAIRABANU
W/O MOOSABBA
R/AT NO 3/241, NEAR WELL,
JYOTHINAGARA KAVOR KUNJATHBAIL
DAKSHINAKANNADA 575015
...APPELLANT
(BY SRI. C ANANTHARAMA, ADVOCATE)
Digitally AND:
signed by
REKHA R 1. UNITED INDIA INSURANCE CO.,
Location: REGIONAL OFFICE, 5TH FLOOR
High Court of
Karnataka NRUPATHUNGA ROAD, KRISHIBAVANA
NEAR HUDSON CIRCLE, BENGALURU - 560 001
BY ITS MANAGER
2. SRI KANTHARAJU K
S/O KRISHNAPPA,
MACHOHALLI COLONY
BAPAGRAMA, MACHOHALLI,
MAGADI ROAD - 560 091
...RESPONDENTS
(BY SMT. HARINI SHIVANANDA, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH)
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MFA No. 590 of 2023
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THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT,
PRAYING TO SET ASIDE THE AWARD IN MVC NO.630/2019
DATED 23.09.2022 ON THE FILE OF THE XXII ADDL. SCJ-ACMM
AND MEMBER MACT, BENGALURU (SCCH-24) AND ENHANCE
THE COMPENSATION TO 1,00,00,000/- (RUPEES ONE CRORE
ONLY) AS CLAIMED BY THE APPELLANT IN THE PETITION IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
J.M.KHAZI J., DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 173 (1) of Motor
Vehicles Act, petitioner is seeking enhancement of the
compensation granted by the Tribunal for the injury
sustained by him in a motor vehicle accident dated
04.01.2019.
2. For the sake of convenience, the parties are
referred to by their ranks before the Tribunal.
3. Facts: It is the case of the petitioner that on
04.01.2019 at about 11-00 p.m, he was waiting for the
bus at Garvebavipalya Subway, Madiwala, Bengaluru.
Suddenly, a Tempo Traveller bearing registration
No.KA-02-AA-9952 (for short 'offending vehicle'), being
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driven by its driver in a rash or negligent manner,
endangering human life came in a high speed and after
losing control dashed against the petitioner. As a result of
the impact, petitioner fell down and sustained multiple
injuries resulting in total permanent disability. Despite
prolonged treatment and spending more than Rs.10 lakhs,
he is not completely cured. Before the accident, he was
hail and healthy and working as a Manager at AEGIS. He
was drawing monthly salary of Rs.50,000/-. After the
accident, petitioner is not able to work and as such he has
lost income. As the insurer and owner, respondents are
jointly and severally liable to pay the compensation and
hence the petition.
4. Despite due service of notice, respondent No.2
owner of the offending vehicle did not appear and as such
was placed ex-parte by the Tribunal.
5. Respondent No.1 appeared through counsel and
filed written statement, admitting issue of valid policy
covering the offending vehicle. However, its liability is
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subject to the terms and conditions of the policy. At the
time of accident, the driver of the offending vehicle was
not possessing a valid and effective driving license and
thereby the insured violated the terms of the policy.
Respondent No.2 disputed the age, occupation, income,
nature of the injury suffered by the petitioner and that
they resulted in permanent partial disability affecting the
total earning capacity of the petitioner. The compensation
claimed is highly exorbitant, fanciful and without any basis
and sought for dismissal petition.
6. Based on the pleadings, the Tribunal framed
necessary issues.
7. On behalf of the petitioner, his mother was
examined as PW-1, 5 witnesses as PWs-2 to 6 and Ex.P1
to 45 were marked.
8. On behalf of respondent No.1, one witness was
examined as RW-1 and Ex.R1 to 3 were marked.
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9. Vide the impugned judgment and award, the
Tribunal quantified the compensation at Rs.9,33,918/- and
disallowed 25% of it on the ground that there was
contributory negligence on the part of the petitioner and
therefore granted 75%, i.e. Rs.7,00,500/- only and
directed respondent No.2 to pay the same with interest at
6% per annum. The details of the compensation granted
by the Tribunal is as under:
Heads Amount
In Rs.
Pain and sufferings 1,00,000
Loss of income during laid up period 56,000
Medical expenses 3,37,718
Loss of future income 4,03,200
Loss of future amenities and 17,000
happiness
Attendant, conveyance, food and 20,000
nourishment charges
TOTAL 9,33,918
75% which petitioner is entitled 7,00,500
10. Aggrieved by the same, the petitioner has come
up with this appeal, contending that the compensation
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granted is highly inadequate and insufficient. The findings
of the Tribunal that there was 25% contributory
negligence on the part of petitioner is erroneous and
without any basis. The Tribunal has failed to appreciate
the fact that the petitioner has suffered 72% disability,
erred in taking only 15% disability for calculating the
compensation. Despite the petitioner establishing that at
the time of accident, he was drawing salary of Rs.50,000/-
p.m, the Tribunal has erred in taking the income on
notional basis and thereby reducing the compensation
payable to the petitioner. Viewed from any angle, the
impugned judgment and award are not sustainable and
calls for interference and pray to enhance the appeal.
11. On the other hand, learned counsel
representing respondent No.2 supported the impugned
judgment and award and sought for dismissal of the
appeal.
12. We have heard elaborate arguments of both
sides and perused the record.
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13. Having regard to the fact that respondents have
not challenged the impugned judgment and award, the
findings of the Tribunal that the accident occurred due to
the rash or negligent driving of the offending vehicle,
resulting in permanent partial disability and that at the
time of accident, the offending vehicle was covered by
valid policy issued by respondent No.2 and as such it is
liable to pay the compensation has attained finality. Of
course, there is finding of the Tribunal that petitioner
contributed for the cause of accident and quantified it at
25% and thereby petitioner is not entitled for
compensation to the extent of 25%, which we would deal
a little later.
14. In the petition, the petitioner has given his age
as 30 years. In the medical records, his age is given as 31
years when he was admitted to hospital. Petitioner has
not chosen to produce SSLC marks card or any other
authentic document to prove his exact age at the time of
accident. However, his Aadhaar card is produced according
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to which his year of birth is 1987. Therefore, the Tribunal
justified in taking his age as 32 years at the time of
accident and 16 as the appropriate multiplier.
15. It is the definite case of the petitioner that at
the time of accident, he was working in AEGIS company as
Assistant Manager and drawing salary of Rs.50,000/- p.m.
Ex.P38 is the order of appointment issued by AEGIS. As
per this document, he is offered salary of Rs.50,000/-
p.m. Ex.P17 is the termination letter issued by the
employer of the petitioner on the ground that due to his
illness, he is not able to attend the work. Ex.P18 is the
statement of accounts of the petitioner according to which
his last drawn salary is Rs.46,473/-, which is for the
month of December 2018. The unfortunate accident took
place on 04.01.2019 and therefore it appears that the
petitioner could not draw the salary for the month of
January 2019. All these entries in the account statement
of petitioner are prior to the date of accident.
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16. PW-4 Punit S, working in the Human Resources
Department of AEGIS Company is examined to prove that
petitioner was working in the said company and drawn
salary as noted in the account statement of the petitioner.
In the light of these documents, the suggestions made to
PW-4 that to help the petitioner to claim higher
compensation, he is giving false evidence is incorrect.
Thus, through the evidence of PW-4 and the documents
placed on record, the petitioner has proved that he was an
employee of AEGIS Company and drawing regular salary.
Therefore, his last drawn salary for the month of
December 2018 i.e., Rs.46,473/- is required to be taken
as his income per month for calculating the compensation.
In the presence of this evidence, the Tribunal is not
justified in taking the salary of petitioner on notional basis.
17. Now coming to the nature of injuries sustained
by the petitioner and the compensation which he is
entitled for the same. It is pertinent to note that
immediately after the accident, the petitioner was taken to
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NIMHANS. On the advice of the Doctors, he was taken to
Baptist Hospital, Bengaluru. From there, he was taken to
Father Muller Hospital, Kankanady, Mangaluru. PW-2
Alwyn Roshan V.P has produced the medical records of
petitioner maintained at Father Muller Hospital. PW-5
R.Vimalraj has produced the records maintained at Baptist
Hospital, Bengaluru. The petitioner has not examined any
of the Doctor who have treated him at NIMHANS, Baptist
Hospital or Father Muller Hospital.
18. However, he has examined PW-3 Dr Srihari B.G
who is working as Assistant Professor in the Department of
Neurosurgery at Bangalore Medical College and R I Super
Speciality Hospital, Victoria Hospital complex, Bengaluru.
He has examined the petitioner for the purpose of
ascertaining disability. As per Ex.P32, the petitioner was
examined by PW-3 Dr Srihari BG. Ex.P33 is the MRI
(Brain) with films, Ex.P34 is the X-ray (2 Nos). He has
referred the petitioner to NIMHANS. Ex.P35 is the clinical
data sheet along with the report of NIMHANS. Based on
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the these documents as well as the earlier records and on
the clinical examination of the petitioner, PW-3 has
assessed the disability of petitioner at 72% of the whole
body. The relevant portion of Ex.P35 the neurobehavioural
and cognitive assessment reads is as follows:
"CT Brain showed-
Traumatic brain injury - contusion right frontal lobe
and basifrontal region diffuse axonal injury, SAH
along bilateral anterior frontal lobes.
Patient was apparently doing well before this
accident happened both at home and in his work as a
assistant manager in a company. Did not have any of
the below mentioned problems apparently.
Now patient has some behavioral changes like easy
irritability, aggressive at times, feels low and
depressed at times. Prefers to keep to himself.
Forgetfulness-forgets names, conversations, feels
tired most of the time. Gets headache on and off.
Needs some help for the ADL (activities of daily
living) but needs to be told. Is not spontaneous.
Sleep is alright but wakes up very early because of
calf pain and appetite is alright. Has some difficulty
in walking because of right side leg weakness
and severe pain. He has pain and weakness in the
right hand also. Unable to work like before because
of leg pain, hand pain and tiredness.
Diagnosis:
Traumatic brain injury - contusion right frontal lobe
and basifrontal region, diffuse axonal injury, SAH
along bilateral anterior frontal lobes.
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(Details based on the discharge summery and
personal interview with the patient and his Mother
informant. The interview with the patient and the
Mother were done separately)".
19. Of course, after the accident, petitioner could
not attend to his work and therefore was terminated. After
the treatment, if at all the petitioner was able to function
normally, he could have certainly reported to work. In the
above facts and circumstances, the Tribunal is not justified
in reducing the disability to 15% of the whole body. The
report and evidence of PW-3 is consistent with the medical
records produced by the petitioner which are earlier in
point of time. The petitioner did not examine the treating
doctor. However, having regard to the fact that the
disability suffered by the petitioner is on account of head
injury and it resulted in permanent partial disability
affecting the earning capacity of petitioner, even in the
absence of evidence of the treating doctor, the extent of
disability calculated by PW-3 is required to be accepted.
Therefore, the permanent partial disability is taken at 72%
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of the whole body. The same cannot be reduced to 1/3 as
done in case of other physical disability.
20. The learned counsel for petitioner submitted
that when the injury sustained by the petitioner has
resulted in permanent partial disability affecting his
earning capacity then, while calculating the compensation
under the head loss of earning capacity, the loss of future
prospects is required to be added. In this regard, he has
relied upon the Full Bench decision of the Hon'ble Supreme
Court in Sanjay Verma Vs Haryana Roadways (Sanjay
Verma)1, where having regard to the age of the
petitioner, nature of the injury suffered the Hon'ble
Supreme Court added 50% of the monthly income towards
future prospects and calculated the Compensation under
the head loss of income due to permanent partial
disability. In fact, in Sanjay Batham vs Munnalal Parihar
and Ors. (Sanjay Batham)2, Rekha Jain Vs. National
2014 ACJ 692
(2011)10 SCC 665
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Insurance Company Ltd and Ors (Rekha)3, Jagdish Vs
Mohan and Ors (Jagadish)4 and Erudaya Priya Vs. State
Express Transport Corporation (Erudaya Priya)5 also, the
Hon'ble Supreme Court held that when the personal injury
is of such nature that it affects the earning capacity of the
petitioner, then a specific percentage is required to be
added to the income under the head loss of future
prospects and then calculation is required to be made
towards loss of income on account of permanent partial
disability.
21. Though in National Insurance Co. Ltd. Vs.
Pranay Sethi and others (Pranay Sethi)6 and Magma
General Insurance Co Ltd Vs. Nanu Ram Alias Chuhru Ram
and others (Magma General Insurance)7, the Hon'ble
Supreme Court dealt with compensation in death cases
and formulated how loss of future prospects is to be
calculated, the same formula may be adopted even to
(2013) 8 SCC 389
(2018) 4 SCC 571
2020 SCC online SC 601: 2020 ACJ 2159
(2017) 16 SCC 680
(2018) 18 SCC 130
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permanent partial disability cases, where there is loss of
earning capacity, for calculating loss of future prospects.
In Erudaya Priya referred to supra which is a case of
personal injury, relying upon the decision in Pranay
Sethi, the Hon'ble Supreme Court added 50% income
towards loss of future prospects and calculated the
compensation under the head loss of income on account
of permanent partial disability. In the present case,
petitioner was employed in a private service. His age was
less than 50 years and therefore 40% of his income is
required to be added to calculate compensation under the
head loss of earning capacity. Since the last drawn salary
of the petitioner was Rs.46,473/-, 40% of it comes to
Rs.18,589/-. Therefore, the income required to be taken is
46,473+18,589=Rs.65,062/-. At this rate the annual
income of petitioner is Rs.7,80,744/-. As per the decision
of the Hon'ble Supreme Court in Shyamwati Sharma and
Ors Vs. Karam Singh and Ors. (Shyamwati)8, where the
annual income of deceased/injured is in taxable range,
(2010) 12 SCC 378
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appropriate deductions should be made towards income
tax/surcharge by calculating his net income. As per the
income tax slab and tax rates for the financial year 2018-
2019 (Assessment year 2019-2020) the income tax +
educational cess payable is Rs.70,708/-. Deducting the
same, the remaining amount is to be taken for calculating
loss of income on account of permanent partial disability
i.e., 7,80,744-70708= Rs.7,10,036/-.
22. With the income at Rs.7,10,036/-, multiplier 16
and disability at 72%, the compensation under the head
loss of income due to permanent partial disability is
Rs.7,10,036x16x72%= Rs.81,79,614/- as against
Rs.4,03,200/- calculated by the Tribunal. Since the
monthly income is required to be taken at Rs.46,473/-, for
a period of four months, the loss of income during laid up
period is required to be granted at Rs.1,85,892/- as
against Rs.56,000/- granted by the Tribunal. Based on
medical bills, the Tribunal has rightly granted
compensation in the sum of Rs.3,37,718/- and it requires
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no reconsideration. Since substantial compensation is
granted under the head loss of future income, due to
permanent partial disability, compensation granted in a
sum of Rs.1,00,000/- under the head pain and sufferings,
Rs.17,000/- under the head loss of amenities of life and
Rs.20,000/- under the head attendant, conveyance, food
and nourishment charges also does not require any
reconsideration.
23. Now coming to the question of contributory
negligence on the part of petitioner in the cause of
accident. It is argued by the learned counsel for
respondent No.2 that at the time of accident, petitioner
was crossing the road and this fact is forthcoming in
Ex.P41 which is MLC Register extract of Bengaluru Baptist
Hospital, wherein the history of injury is given as a road
traffic accident while the injured was crossing the road at
Bommanahalli. It was submitted by the learned counsel
for respondent No.2 that this is the earliest version. Later,
to help the petitioner to claim compensation, it was
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projected as though he was standing by the side of the
road and the offending vehicle came and dashed against
him.
24. However, as rightly observed by the Tribunal, in
the sketch at Ex.P4, it is noted that petitioner was
standing on the left end of the service road and the
offending vehicle which was coming from Garvebavipalya
junction side and proceeding towards Bommanahalli
junction side, came from the middle of the road and
moved towards left extreme of the road and dashed
against the petitioner. The sketch also indicates that the
Hosur Main Road (National Highway) is barricaded on both
sides with high iron grills. On both sides of the iron grill,
the service road is situated. From the sketch it is evident
that the petitioner was standing on the left portion of the
service road in order to cross the same, when the accident
took place.
25. It has also come in the evidence that there is a
sub-way available which is also indicated in the sketch and
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the petitioner has not chosen to use the sub-way to cross
the road safely. However, it is relevant to note that when
the accident took place it was 11-00 p.m. Normally it is
found that the sub-ways are not properly maintained.
Safety is also an issue in the sub-ways, especially during
night time. It is not clear whether the sub-way in question
was maintained properly with lighting facility. Of course
lack of the same is not a ground for the petitioner to cross
the service road from a place where no crossing is
permitted. Taking into consideration these aspects, we are
of the considered opinion that there is contributory
negligence on the part of petitioner. However, the Tribunal
has erred in quantifying the same to 25%. In the above
facts and circumstances, we are of the considered opinion
that it would be appropriate to restrict the contributory
negligence to 10%. Consequently, the petitioner is entitled
for 90% of the compensation.
26. Since the total compensation payable is
Rs.88,40,224/-, 90% of it comes to Rs.79,56,202/-. Thus,
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in all petitioner is entitled for total compensation in a sum
of Rs.79,56,202/- together with interest at 6% p.a. on the
enhanced compensation, as against Rs.7,00,500/- granted
by the Tribunal as detailed below:
Heads Amount granted Amount granted
by the Tribunal by this Court
In Rs. In Rs.
Pain and sufferings 1,00,000 1,00,000
Loss of income during laid 56,000 1,85,892
up period
Medical expenses 3,37,718 3,37,718
Loss of future income 4,03,200 81,79,614
Loss of future amenities and 17,000 17,000
happiness
Attendant, conveyance, food 20,000 20,000
and nourishment charges
TOTAL 9,33,918 88,40,224
Rounded off to 9,34,000 -
75% of 9,34,000 is - 7,00,500
90% of 96,54,780 is - 79,56,202
27. In the light of enhancement of compensation
payable, appeal is allowed in part and accordingly, the
following:
ORDER
(i) Appeal is allowed in part.
(ii) Petitioner is entitled for compensation in a
sum of Rs.79,56,202/- as against
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Rs.7,00,500/- granted by the Tribunal
together with interest at 6% p.a. on the
enhanced compensation.
(iii) Respondent No.1 being the insurer is
directed to pay the compensation together
with interest at 6% p.a on the enhanced
compensation from the date of petition till
realization (minus the amount already
paid/deposited, if any) within a period of six
weeks from the date of this order.
(iv) The Registry is directed to send back the
trial Court records along with copy of this
judgment forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
RR
