Karnataka High Court
The New India Assurance Co Ltd vs Sri M Lakshmaiah on 20 June, 2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
M.F.A.NO.1511/2008 (MVC)
BETWEEN:
THE NEW INDIA ASSURANCE CO., LTD.,
DIVISIONAL OFFICE-VII, 5TH FLOOR,
VOKKALIGARA BHAVAN, HUDSON CIRCLE,
BANGALORE - 560 027
REP. BY ITS DULY
CONSTITUTED ATTORNEY ...APPELLANT
(BY SRI.C.R.RAVISHANKAR, ADV.,)
AND:
1. SRI.M.LAKSHMAIAH
AGED ABOUT 44 YEARS
S/O SRI.MUNISANNAPPA
R/AT BYRAVESHWARA LAYOUT
HENNUR BANDE, KALYANANAGAR POST,
BANGALORE - 560 043
2. SR.NANU. V.K.
AGED ABOUT 55 YEARS
S/O SRI. AMBUKUTTY
R/AT NO.65, TEJUS PATEL
NANJUNDAPPA LAYOUT
KOTHANUR POST
BANGALORE-560 077. ...RESPONDENTS
(BY SRI.M.R.NANJUNDA GOWDA, ADV., FOR R1
R2 - SERVED)
2
THIS MFA IS FILED UNDER SECTION 173(1) OF MV
ACT, AGAINST THE JUDGMENT AND AWARD DATED
24.10.2007 PASSED IN MVC NO.7864/2006 ON THE FILE
OF THE VIII ADDL. JUDGE, COURT OF SMALL CAUSES,
MEMBER, Motor Accident Claims Tribunal, METROPOLITAN
AREA, BANGALORE (SCCH. NO.5), AWARDING A
COMPENSATION OF RS.3,70,600/- WITH INTEREST AT 6%
P.A. EXCLUDING FUTURE MEDICAL EXPENSES OF
RS.10,000/- FROM THE DATE OF PETITION TILL DEPOSIT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal filed by the insurance company is directed against the judgment and award dated 24.10.2007 passed by VIII Additional Judge Court of Small Causes and Motor Accident Claims Tribunal V, Bangalore City, in MVC No.7864/2006.
2. Respondent No.1 claimant filed claim petition under Section 166 of Motor Vehicles Act seeking compensation of Rs.10,00,000/- for the personal injuries sustained by him in the Road Traffic accident that occurred on 14.10.2006 in front of BMTC 10th Depot on Hennur Main Road. According to the claimant while he was proceeding on his scooter, the 3 tempo trax bearing No.KA-3-Z-8520 driven by its driver in a rash and negligent manner dashed against the scooter as a result, he sustained injuries for which he took treatment in Hosmat Hospital. The claim petition was contested by the insurer of offending vehicle. The Tribunal on assessment of oral and documentary evidences placed by the claimant, answered issue No.1 in the affirmative and regard being had to the nature of injuries sustained as well as the duration of the treatment and the permanent disability incurred quantified compensation payable at Rs.3,70,000/- under different heads as under:
a) Pain and sufferings - Rs. 30,000/-
b) Loss of amenities - Rs. 40,000/-
c) Medical Expenses - Rs. 73,000/-
d) Loss of income during
treatment - Rs. 16,000/-
f) Loss of future earning - Rs.2,01,600/-
g) Future medical expenses - Rs. 10,000/-
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TOTAL - Rs.3,70,600/-
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3. The Tribunal directed the appellant insurer to pay the compensation amount with interest at the 4 rate of 6% from the date of petition to the date of payment. Aggrieved by the said judgment and award insurer has filed this appeal. During the course of the argument the learned counsel for appellant contended that the Tribunal has committed serious error in determining the monthly salary of the claimant as Rs.8,000/- though the claimant has failed to prove the same by acceptable evidence. He further contended that in the absence of proofs regarding salary certificate produced as per Exhibit P11, the Tribunal ought not to have placed any reliance on the same to come to the conclusion that the claimant was drawing monthly salary of Rs.8,000/-. It is the further contention of the learned counsel that assessment of percentage of disability by the doctor is without any basis and since the claimant has not suffered any functional disability, the Tribunal has committed error in awarding Rs.2,10,600/- as compensation towards loss of future earning. It is also his submission that compensation awarded under other heads are exhorbitant as such 5 compensation has to be reduced. On the other hand the learned counsel for respondent sought to justify the judgment and award passed by the Tribunal and that there are no grounds to interfere with the quantum of compensation awarded by the Tribunal. He contended that since the appellant insurer has not challenged the evidence of PW1 and 2 with regard to the claimant being an employee of Auto Component Manufacturers & Press Tools on a salary of Rs.8,000/- per month the Tribunal has not committed any error in accepting the case of the claimant with regard to his salary, though the author of Exhibit P11 has not been examined. He contended that the medical evidence placed by the claimant on record clearly establishes that the claimant has suffered functional disability of more than 15% and therefore the Tribunal has not committed any error in awarding compensation of Rs.2,01,600/- towards loss of future earning. It is his further submission that the awards under different heads are just and reasonable, as such it does not call for interference by this Court. 6
4. As noticed supra, in this appeal finding of the Tribunal on Issue No.11 regarding actionable negligence is not seriously challenged. The finding recorded by the Tribunal on issue No.1 in my opinion is sound and reasonable, having regard to the evidence on record, therefore the said finding does not warrant interference by this Court.
5. As noticed supra the main grievance of the appellant is grant of award of Rs.2,01,600/- towards loss of future earnings by accepting the salary of claimant at Rs.8,000/- per month. It is the specific case of the claimant that at the time of the accident he was working as supervisor / tool and dye maker in Auto Component Manufacturers & Press Tools and was drawing monthly salary of Rs.8,000/-. In support of this say claimant has produced the salary certificate at Exhibit P11 issued by authorized signatory of Auto Component Manufacturers & Press Tools. According to the contents of Exhibit P11 the claimant was working in the said organization as supervisor and tool and dye 7 maker and he was incharge of the tools room and tools maintenance and he was being paid salary of Rs.8,000/ per month and that the claimant has not attended his duty from 16.10.2011. No doubt, the person who issued Exhibit P11 has not been examined before the court. Therefore it may be said that the contents of Exhibit P11 are not proved.
6. Nevertheless the assertion made by PW1 in his examination in chief with regard to his employment in Auto Component Manufacturers & Press Tools as a supervisor and dye maker with a monthly salary of Rs.8,000/- has not been challenged. Perusal of the cross examination PW1 indicates that the learned counsel for appellant-insurer has not made any suggestion to the witness that he was not employed in Auto Component Manufacturers & Press Tools and he was not drawing salary of Rs.8,000/-. The only answers elucidated in the cross examination of PW1 is about 6 to 7 workers were working in the said organization, no appointment order was issued to him. He has came out 8 with an explanation in this regard to the effect that "since it was a small company no appointment order was issued". He has denied that suggestion that Exhibit P11 was created by him. Thus the say of PW1 in his examination in chief that he was employed in Auto Component Manufacturers & Press Tools and was drawing salary of Rs.8,000/- has remained uncontroverted and challenged. The evidence of PW1 with regard to his employment and salary gains, corroborates from the evidence of PW2, Sri.Ravichandra Kumar. According to PW2 he was also an employee in Auto Component Manufacturers & Press Tools from 7 years. According to PW2 claimant was working in the said organization for 4 to 5 years as supervisor / tool and dye maker and claimant was drawing a salary of Rs.8,000/- per month.
7. Perusal of the cross-examination of PW2 by learned counsel for insurance Company indicates that there is no challenge to the evidence of PW2 with regard to his employment in the said company as well as 9 employment of the claimant therein as also monthly salary. The only suggestion put to PW2 in the cross examination was that he does not have identity card to show that he is an employee in Auto Component Manufacturers & Press Tools. There is no suggestion to PW2 that he was not employed in Auto Component Manufacturers & Press Tools nor there is any suggestion that claimant was not working in Auto Component Manufacturers & Press Tools and was not drawing salary of Rs.8,000/- per month. Thus even the evidence of PW2 in this regard has remained uncontroverted and unchallenged. Thus when the evidence of PW1 and 2 with regard to the employment of the claimant and the monthly salary drawn by him has not been seriously controverted in the cross examination, even if it is assumed that Exhibit P11 is not proved, there is no reason to discard the evidence of PW1 and 2 in this regard. In the absence of any challenge to the evidence of PW1 and 2 in this regard, in my opinion, the Tribunal has not committed any error 10 in holding that the claimant was an employee and was drawing a salary of Rs.8,000/-. The said finding is sound and reasonable having regard to the evidence and record. There is no ground to interfere with the said findings. Therefore I reject the argument of the learned counsel for appellant in this regard.
8. The Tribunal for the purpose of assessing functional disability at 15% has relied on the evidence of PW2, Dr. Sudhakanth. Perusal of evidence of PW2 indicates that he treated the claimant in Hosmat Hospital and he also assessed the disability suffered by the claimant. According to PW2 the claimant has suffered permanent disability of left lower limb to an extent of 45% and the whole body disability at 15%. There is no serious cross examination in this regard. The evidence of PW1 and 2 clearly establishes that on account of the disability he has left the job in Auto Component Manufacturers & Press Tools. However, it is not the say of PW1 that he is not working elsewhere. Therefore regard being had to the facts and 11 circumstances of the case and the evidence, I am of the view that the Tribunal has not committed error in assessing the functional disability at 15%. Therefore Tribunal is justified in awarding Rs.2,01,600/- towards loss of future earning.
9. Having regard to the nature of injuries suffered by the claimant the length of treatment, and surgery undergone by the claimant and the permanent disability incurred by him, in my opinion compensation under other heads are just and reasonable. Therefore, I find no merit in this appeal. Accordingly appeal is dismissed. The amount deposited if any in this appeal is ordered to be transferred to the Tribunal concerned.
Sd/-
(JUDGE) DR