Karnataka High Court
Regional Manager vs Srikanth on 4 July, 2014
Bench: N.K.Patil, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JULY, 2014,
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
M.F.A.NO. 9231 OF 2013 (MV)
Between:
Regional Manager,
Oriental Insurance Co., Ltd.,
Regional Office,
No.44/45, Leo Shopping Complex,
Residency Road,
Bangalore-25.
... Appellant
(By Shri. A.N.Krishna Swamy, Advocate)
And:
1. Srikanth,
S/o. K.Babu,
Now aged about 31 years,
R/at. No.1225, HIG, 8th Cross,
Yelahanka New Town, Bangalore.
Also at Divyashree Greens,
Sy.No.12/1, 12/2A, 13/1A,
Challaghatta, Varthur Hobli,
Bangalore-71.
2. T.G. Gurudev,
S/o. Garudaiah, Major,
R/at. Ranganathaswamy Nilaya,
2
III Main, Vinobanagara,
Tumkur.
3. The Managing Director,
KSRTC., Shanthinagara,
Double Road, Bangalore-27.
... Respondents
(By Shri. B.S. Jeevan Kumar, Advocate for R1;
Shri. V.F. Kumbar, Advocate for R2;
Shri. D. Vijayakumar, Advocate for R3)
******
This MFA is filed U/S 173(1) of MV Act against the
Judgment and Award dated: 08/07/2013 passed in MVC
No.3001/2011 on the file of the II Additional Small Causes
Judge & XXVIII ACMM, Motor Accident Claims Tribunal,
Bengaluru (SCCH-13), awarding a compensation of
`28,48,399/- (future medical expenses of `25,000/- will not
carry any interest) with interest at 6% p.a. from the date of
petition till realization.
This MFA coming on for Admission, this day,
N.K. PATIL. J., delivered the following:
JUDGMENT
This appeal by the Insurance Company is directed against the judgment and award dated 8th July 2013, passed in MVC No.3001/2011, by the II Additional Small Causes Judge & XXVIII ACMM, Motor Accident Claims Tribunal, Bengaluru (SCCH-13), (for short, 'Tribunal') for reduction of compensation on the ground 3 that, the compensation of `28,48,399/- with 6% interest per annum, awarded in favour of the injured claimant as against his claim for `50,00,000/-, is highly exorbitant and excessive.
2. The facts in brief are that, at about 2:45 A.M, on 09-11-2010, when the injured claimant was travelling in Maxi cab bearing No.KA-06/B-8959 from Kannur to Bengaluru on Mysore -Hunsur Main Road near Bilikere Santhemela turning, at that time, the the driver of said vehicle drove the same, at high speed in a rash and negligent manner and dashed against the hind portion of KSRTC Bus bearing Registration No.KA-09/F- 4090 on account of which, the injured claimant sustained grievous injuries all over the body. Immediately, he was shifted to the Hospital, where he took treatment for a period of 16 days and thereafter took follow-up treatment.
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3. It was the case of the injured claimant that, he was hale and healthy prior to the date of accident, which resulted in grievous injures to him and that he was working at Dell International Services India Private Limited, earning a sum of `2,75,000/- per annum. It was the further case of the injured claimant that, on account of the grievous injuries sustained and disability, he has spent considerable amount towards conveyance, nourishing food and attendant charges apart from other incidental expenses and therefore, he has to be compensated reasonably.
4. On account of the injuries sustained, the claimant filed the claim petition before the Tribunal, seeking compensation of a sum of `50,00,000/- against the Insurer and two others. The said claim petition had come up for consideration before the Tribunal on 8th July, 2013. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim 5 petition in part, awarding a sum of `28,48,399/- under different heads, with 6% interest per annum, from the date of petition till the date of deposit. Being aggrieved by the quantum of compensation awarded by the Tribunal, the Insurer is in appeal before this Court, seeking reduction of compensation.
5. We heard the learned counsel appearing for Insurer and learned counsel appearing for injured claimant, gone through the grounds urged in the memorandum of appeal carefully and perused the impugned judgment and award passed by Tribunal.
6. Learned counsel appearing for Insurer, Shri. A.N. Krishna Swamy vehemently submits that the Tribunal grossly erred in awarding exorbitant compensation towards all the heads, particularly loss of future income and medical expenses in a sum of `5,89,493/-, for the reason that, the employer of the injured claimant has already reimbursed a sum of `4,25,000/- towards medical expenses and therefore, 6 the said amount ought to have been deducted from out of the medical expenses of a sum of `5,89,493/-. Therefore, he submitted that the injured claimant is entitled to only a sum of `1,64,493/-, i.e. `5,89,493/- (-) `4,25,000/-, towards medical expenses. To substantiate the said submission, he strongly relied upon the decision of the Division Bench of this Court reported in 2013 (1) Kar.Law Journal Page 624 (New India Assurance Company Limited, Bangalore Vs. Manish Gupta and another) and drew our specific attention to paragraph 20 of the said judgment, wherein it is held that an injured person cannot claim benefit out of his own misfortune and he cannot claim medical expenses under the Medi-claim policy and also claim damages in the nature of amount expended for medical treatment under the claim petition which is filed under the Motor Vehicles Act. Therefore, he submitted that a sum of `4,25,000/- may be deducted from out of `5,89,493/- and a sum of `1,64,493/- may be awarded 7 towards medical expenses as against `5,89,493/- awarded by Tribunal.
Further, he vehemently submitted that, considering the nature of injuries sustained, the whole body disability assessed by PW4, Doctor, is on the higher side and therefore, the Tribunal was also not justified in accepting the said disability for computing compensation payable towards loss of future income. To substantiate the said submission, he drew our attention to the nature of injuries sustained, viz. vertebra fractures T3 to T8, T10 and L4, comminuted supracondylar fracture right femur, Type 2 open comminuted fracture both bones of right leg, comminited fracture both bones of left leg, proximal tibia fracture on right side, fracture of ribs 3rd, 4th, 5th and 8th on right side with pneumothorax and lung contusion, head injury (Cerebral edema), post polio residual paralysis both lower limbs and diabetes mellitus, bronchial asthma. Therefore, considering the nature of injuries sustained, oral evidence of the Doctor 8 and also the Wound Certificate, the total whole body disability assessed at 43% by the Doctor and accepted and adopted by the Tribunal at 43% is on the higher side and at best the whole body disability could be assessed between 15% and 20%, to meet the ends of justice. Therefore, he submitted that, the compensation payable towards loss of future income is liable to be computed afresh and the impugned judgment and award passed by Tribunal is liable to be modified, reducing the compensation substantially.
7. As against this, learned counsel appearing for injured claimant, inter alia substantiated the impugned judgment and award passed by Tribunal stating that the Tribunal, after critical evaluation of the oral and documentary evidence available on file, has rightly awarded compensation under all the heads and interference in the same is uncalled for.
Further, he vehemently submitted that, the Tribunal, taking into consideration the age, avocation, 9 year of accident, nature of injuries sustained, disability, nature and duration of treatment undergone, and the several surgeries underwent by the injured claimant, has awarded just and reasonable compensation towards loss of future income and in fact, the injured claimant has discontinued his job and at present he is doing some part time job and therefore, the compensation awarded towards loss of future income may not be interfered with.
8. However, so far as the compensation awarded by Tribunal at `5,89,493/- towards medical expenses and the submission of the learned counsel appearing for Insurer that a sum of `4,25,000/- received by the injured claimant through Mediclaim is liable to be deducted, is concerned, he does not dispute the fact that the injured claimant has received a sum of `4,25,000/- through Medi-claim and in fact, to that effect, he has also filed the necessary document along with a memo. He fairly submitted that in the light of 10 the ratio of law laid down by the Hon'ble Division Bench of this Court reported in 2013 (1) Karnataka Law Journal 624 (supra), a sum of `4,25,000/- may be deducted from out of `5,89,493/- and a sum of `1,64,493/- be awarded towards medical expenses incurred by the injured claimant.
9. Further, regarding the quantum of compensation awarded by Tribunal, he vehemently submitted that, in view of the road traffic accident, the injured claimant has sustained grievous injuries and undergone lot of unsaid pain and agony during treatment and follow-up treatment period and that he is not in a position to bear weight, difficulty to stand, to sit cross legged, to squat, use Indian toilet, climb up and down the stair case, walk on slope, walk on plain surface, kneel and he always limps and walks with support of 1 axillary crutch shortening of right lower limb is about 3 cms. and he has undergone three surgeries, viz. implants removal from right femur, 11 correction of Non union of fracture of right tibia by bone grafting and non union of left tibia by bone grafting and he is not in a position to the work effectively and it has affected his career and he has to pull on the life with the permanent disability for the rest of his life. Therefore, considering all these aspects of the matter, interference in the compensation awarded under the other heads is also not called for.
10. After hearing the rival contentions of the parties, after perusal of the impugned judgment and award passed by Tribunal and after re-appreciation of the oral and documentary evidence available on file, the only point that arise for our consideration in this appeal is:
Whether the quantum of compensation awarded by Tribunal is excessive and liable to be reduced?
After careful perusal of the impugned judgment and award passed by Tribunal and after critical 12 evaluation of the oral and documentary evidence available on file, it emerges that, occurrence of accident and the resultant injuries sustained by injured claimant are not in dispute. It is further not disputed that the injured claimant has sustained vertebra fractures T3 to T8, T10 and L4, comminuted supracondylar fracture right femur, Type 2 open comminuted fracture both bones of right leg, comminuted fracture both bones of left leg, proximal tibia fracture on right side, fracture of ribs 3rd, 4th, 5th and 8th on right side with pneumothorax and lung contusion, head injury (Cerebral edema), post polio residual paralysis both lower limbs and diabetes mellitus, bronchial asthma and was hospitalized for a total period of 16 days and also underwent three surgeries, viz. implants removal from right femur, correction of Non union of fracture of right tibia by bone grafting and non union of left tibia by bone grafting. It is further not disputed that the injured claimant was aged about 29 years and working as Service Engineer at 13 Dell International Services India Pvt.Ltd. It is stated that he was earning a sum of `2,75,000/- per annum.
11. As rightly pointed out by the learned counsel appearing for Insurer, the permanent disability assessed by Doctor and accepted and adopted by Tribunal at 43% is on the higher side, considering the nature of injuries sustained by injured claimant. The same is an exaggeration one. It can be seen that the injured claimant has sustained fracture of left leg tibia and fibula, which shows non union with implants in situ and fracture of right leg tibia non union with implants in situ, fracture of right femur and fracture of 3rd, 4th 6th to 9th ribs on right side shows union. Therefore, considering the nature of injuries sustained, age, avocation, etc, we re-assess the whole body disability at 25%, to meet the ends of justice, as against 43% assessed by Doctor and accepted and adopted by Tribunal. The injured claimant, being aged about only 14 29 years, has to endure this disability for the rest of his life.
12. So far as the compensation of `5,89,493/- awarded by Tribunal towards medical expenses is concerned, it can be seen, as rightly pointed out and relied upon by the learned counsel appearing for Insurer that, in the light of the ratio of law laid down by the Division Bench of this Court, the claimant is not entitled to get medical reimbursement twice. It is worthwhile to extract paragraph 20 of the judgment of the Division of this Court 2013 (1) Kar.Law Journal Page.624 (supra), which reads thus:
"20. Indeed an injured person cannot claim benefit out of his own misfortune. He cannot claim medical expenses under the Mediclaim policy and also claim damages in the nature of amount expended for medical treatment under the claim petition, which is filed under the Motor Vehicles Act. In similar, if not identical circumstances, a Division Bench of this Court in the case of Karnataka State 15 Road Transport Corporation, Bangalore v H. Anantharam Singh, has observed that once a claim is satisfied with respect to the damages caused to the car by the insurer, the question of the owner of the car claiming damages as against the tort-feasor before the Claims Tribunal does not arise inasmuch as the cost of repair having been already recovered through the insurer, the claimant or the owner of the car cannot claim compensation under the claim petition filed under the Act." (underlining by us) Therefore, in the light of the ratio of law laid down by the Division Bench of this Court in 2013 (1) Kar.L.J.Page.624 (supra), and as rightly pointed out by learned counsel appearing for Insurer and not disputed by the learned counsel appearing for injured claimant, we deem it fit and proper to award a sum of Rs.1,64,493/- towards medical expenses as against Rs.5,89,493/-, awarded by Tribunal.
13. Further, so far as income of the injured claimant is concerned, it is seen that he was drawing a 16 sum of `22,552/- per month. Having regard to the facts and circumstances of the case and age, avocation and the documentary evidence, we accept the said income of the injured claimant and adopt the same for computation of compensation payable towards loss of future income and also loss of income during laid up period. Further, it is stated that he took treatment for a period of 16 days as in-patient in the Hospital. Looking at the nature of injuries sustained, we presume that he must have taken bed rest and follow-up treatment at least for a period of six months. Further, as per the evidence of the Doctor, he has to undergo three more surgeries. Therefore, some compensation has to be awarded towards future medical expenses including incidental expenses. But, the compensation awarded by Tribunal at `25,000/- towards future medical expenses is on the lower side and liable to be enhanced. Further, since the injured claimant was aged about 29 years, his marriage prospects is also likely to be affected in view of the grievous injuries and the disability 17 sustained by him. Therefore, he is entitled to some compensation towards loss of marriage prospects also, which the Tribunal has failed to consider.
14. Accordingly, having regard to the facts and circumstances of the case, including age, avocation, nature of injuries sustained, surgeries undergone and nature and duration of treatment, etc. we award a sum of `1,50,000/- towards pain and sufferings as against `1,00,000/-; `50,000/- towards conveyance, nourishing food and attendant charges as against `16,000/-; `1,35,312/- towards loss of income during treatment period at the rate of `22,552/- per month for a period of six months as against `67,656/-; `1,00,000/- towards loss of amenities, discomfort and unhappiness as against `40,000/-; `50,000/- towards future medical expenses as against `25,000/- awarded by Tribunal.
15. Further, so far as compensation awarded towards loss of future income is concerned, the same is on the higher side as the Tribunal has adopted 43% disability towards whole body. Since we have re- 18 assessed the whole body disability at 25%, the compensation payable towards loss of future income has to be computed again.
16. The injured claimant was aged about 29 years as on the date of accident and the proper multiplier applicable is '17' as per the decision of the Hon'ble Apex Court Sarla Verma's case (2009 ACJ 1298) as rightly adopted by Tribunal. Thus, the compensation towards loss of future income would work out to `11,50,152/- (i.e. `22,552/- x 12 x '17' x 25/100) as against `20,10,250/- awarded by Tribunal.
17. Further, as per the discussion made above at paragraph 12, we award compensation of `1,64,493/- towards medical expenses as against `5,89,493/- awarded by Tribunal, after deducting a sum of `4,25,000/- received by the injured claimant from his employer towards medi-claim policy.
18. Further, it can be seen that the Tribunal has failed to award any compensation towards loss of marriage prospects. It can be seen that the injured 19 claimant was aged about 29 years and considering the nature of injuries sustained, the marriage prospects of the injured claimant is likely to be affected. Therefore, having regard to the facts and circumstances of the case, we award a sum of `1,00,000/- towards loss of marriage prospects as the Tribunal has not awarded any compensation.
19. Thus, the total compensation would come to `18,99,957/- as against `28,48,399/- awarded by Tribunal, with interest at 6% per annum, from the date of petition till the date of realization. There would be reduction of compensation by `9,48,442/-.
20. Further, regarding the submission of the learned counsel appearing for Insurer that the accident occurred on account of the contributory negligence on the part of the injured claimant and therefore, some percentage of negligence is liable to be fixed on the injured claimant also, is concerned, it can be seen that the said submission has not substance nor it has got 20 any force, for the reason that the Tribunal, after critical evaluation of the oral and documentary evidence available on file has recorded specific finding of fact, holding that the accident occurred due to rash and negligent driving by the driver of the KSRTC Bus. The said finding of fact recorded by Tribunal is just and proper and we do not find any justification or good ground to interference in the liability fixed by Tribunal.
21. In the light of the facts and circumstances of the case, as stated above, the appeal filed by the Insurance Company is allowed in part. The impugned judgment and award dated 8th July 2013, passed in MVC No.3001/2011, by the II Additional Small Causes Judge & XXVIII ACMM, Motor Accident Claims Tribunal, Bengaluru (SCCH-13), is hereby modified, reducing the total compensation from `28,48,399/- awarded by Tribunal, to `18,99,957/- (reduction being `9,48,442/-), with interest at 6% per annum, from the date of petition till the date of realization. 21
The Insurance Company is directed to deposit the remaining compensation, with interest thereon at 6% per annum, within four weeks from the date of receipt of copy of the judgment and award.
The apportionment of compensation made by Tribunal gets proportionately reduced to the extent of reduction of compensation made by this Court.
The statutory amount in deposit by the Insurance Company is directed to be transmitted to the jurisdictional Tribunal, forthwith.
Office to draw award, accordingly.
SD/-
JUDGE SD/-
JUDGE BMV*