Karnataka High Court
Ivan D Souza @ Ivan Stany D Souza vs Kushith Kumar on 4 January, 2022
Author: Ravi V. Hosmani
Bench: Ravi V. Hosmani
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MISCELLANEOUS FIRST APPEAL NO.388 OF 2019 (MV)
BETWEEN:
IVAN D'SOUZA @
IVAN STANY D'SOUZA,
S/O MICHAEL D'SOUZA,
AGED 32 YEARS,
R/AT NEAR OLD FATHIMA CHURCH,
THANNIR BAVI, PANAMBUR POST,
MANGALURU,
D.K. DISTRICT - 575 006.
...APPELLANT
(BY SRI.RAVISHANKAR SHASTRY G., ADVOCATE)
AND:
1. KUSHITH KUMAR,
S/O SEETHARAMA A,
ADULT,
R/AT ANUGRAHA TALLERY ROAD,
MULIHITHLU, MANGALURU,
D.K. DISTRICT - 575 012.
2. NEW INDIA ASSURANCE CO. LTD.,
RAM BHAVAN COMPLEX,
II FLOOR, KODIALBAIL,
MANGALURU,
D.K. DISTRICT - 575 003.
REPRESENTED BY ITS MANAGER.
...RESPONDENTS
(BY SRI.E.I.SANMATHI, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH VIDE ORDER
DATED 01.04.2021)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND
AWARD DATED 14.08.2018, PASSED IN MVC NO.1027/2017,
ON THE FILE OF THE VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND MACT, D.K., MANGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Challenging judgment and award dated 14.08.2018 passed by VI Additional District and Sessions Judge and MACT., D.K., Mangaluru ( for short 'the Tribunal') in MVC No.1027/2017, this appeal has been filed by claimant seeking for enhancement of compensation.
2. Brief facts of case is as under:
On 9.1.2017, when claimant was proceeding as pillion rider on Honda Scooter bearing Registration No.KA-19-EG-6807 from Kuloor towards Panambur of Mangaluru, driver of Pajero Vehicle bearing registration No.KA-37-M-5418 drove it in a rash and negligent manner and dashed against Honda Scooter. As a result 3 claimant fell down and sustained grievous injuries. He was admitted to A.J. Hospital, Kuntikana of Mangaluru.
Despite taking treatment, he did not recovered fully and sustained physical disability and consequent loss of earning capacity. Hence, he filed claim petition under Section 166 of Motor Vehicles Act against owner and insurer of Pajero vehicle.
3. Despite service of notice, respondent No.1 - owner did not contest matter. He was placed ex-parte. Respondent No.2 - Insurer filed objections and admitted issuance of insurance policy, subject to terms and conditions. It denied other petition averments and alleged contributory negligence against rider of two wheeler and also contended that petition was bad for non-joinder of necessary parties viz., owner and insurer of two wheeler. Claim petition was also opposed as being excessive.
4. Based on pleadings, Tribunal has framed following issues for its consideration: 4
1) Whether the petitioner proves, that on 9.1.2017, he was proceeding as a pillion rider on Honda Scooter bearing Regn.No.KA-19-EG-6807 from Kuloor towards Thannirubavi, Ivon D'Souza was riding the Honda Scooter, at about 7.30 P.M., near NMPT Silver Jubilee Gate, Thannirbavi Road, Panambur, Mangalore, driver of a Pajero vehicle bearing Regn.No.KA-37-M-5418, taken the same in a rash and negligent manner with high speed, from opposite side and dashed the Honda Scooter in which petitioner was proceeding, in the result he fell down and he has sustained injuries?
2) Whether the petitioner is entitled for compensation? If so, from whom and what extent?
3) What order or award?
5. In order to establish his case, claimant examined himself as PW.1 and three other witnesses as PWs.2 to 4 and got marked Exs.P1 to P137. Respondent did not lead any evidence but got produced copy of the insurance policy.
6. On consideration, tribunal answered issue no.1 holding that accident occurred due to rash and negligent driving of driver of Pajero Jeep and rider of two wheeler and apportioned contributory negligence between them 5 in the ratio of 10%:90% i.e. 10% against rider of two wheeler and 90% against driver of Jeep. It answered issues no.2 & 3 partly in affirmative. Tribunal determined age of claimant as '33' years, occupation as 'driver', his monthly income at Rs.11,000/-, functional disability at 24% awarded total compensation of Rs.17,21,962/- (Rupees seventeen lakhs twenty one thousands and nine hundred and sixty two only) with interest @ 6% per annum and held insurer is liable to pay at 90% of compensation i.e. Rs.17,21,962/-. Being not satisfied with quantum of compensation awarded by the Tribunal, claimant is in appeal.
7. Sri Ravishankar Shastry, G., learned counsel for claimant/appellant submitted that claimant was working a driver in a Private Firm and earning monthly salary of Rs.12,190/- as per salary certificate at Ex.P.131. In the accident, claimant sustained following several grievous injuries:
1. abrasion on the right cheek.6
2. bone deep laceration on the middle of forehead extending to the root of the nose with CT scan showing
a) sub-dural haematoma
b) Sub-arachnoid haemorrhage
c) Fracture of right maxilla.
d) Right zygoma, sphenoid, both nasal bones, right orbit, right parietal bone and right temporal bone
3) abrasion injury on the left side of chest
4) abrasion injury on the back of left hand with underlying fracture of 5th metacarpal
5) Contusion injury on the left lower back with ultra sound laparotomy showing rupture of left kidney, spleen and tail of pancreas with blood in the peritoneal cavity
6) Bone deep laceration on the right leg with underlying comminuted fracture of right tibia and fibula
7) Abrasion injury on the left knee
8) Swelling and deformity of left leg with underlying fracture of tibia, fibula and medical malloelus.
8. These injuries were assessed by PW4- Dr.Mayur Rai at 13% permanent physical disability in respect of right lower limb and 31% in respect of left lower limb and 30% to whole body due to loss of one 7 kidney. However, Tribunal considered functional disability as 24% and awarded meager compensation. It was submitted that claimant lost his employment due to injuries sustained by him in accident and therefore, percentage of loss of earning capacity assessed by Tribunal was meager. It was further submitted that though claimant had produced salary certificate as per Ex.P.131, Tribunal considered monthly income at Rs.11,000/- which was inadequate. It was also submitted that claimant sustained loss of income during period of treatment for about 11 months. But tribunal did not award any compensation towards the same. It was further submitted that claimant sustained loss of one kidney apart from his disability to his limbs. However, Tribunal awarded meager compensation of Rs.10,000/- towards 'loss of amenities'. It was also submitted that PW.4 - Dr.Mayur Rai had deposed that claimant requires Rs.50,000/- towards 'future medical expenses' viz., for removal of implants. However, Tribunal awarded only Rs.20,000/- towards 'future medical expenses'. Lastly, he 8 submitted that claimant was admittedly, pillion rider on two wheeler and therefore, denial of 10% of compensation due to contributory negligence of rider of scooter was unjustified.
9. On the other hand, Sri E.I. Sanmathi, learned counsel for respondent-insurer supported award and opposed appeal in question. It was submitted that claimant had stated that he was working as drive, but no evidence was placed on record to establish that he surrendered driving licence or discontinued driving so as to establish loss of employment. It was submitted that claimant would be able to earn income by alternate employment and therefore, assessment of functional disability by Tribunal at 24% to whole body was justified. It was further submitted that the Tribunal by considering deduction towards income tax etc., had taken the income at Rs.11,000/- per month which was justified in the facts and circumstances of this case. It was further submitted that normally loss of one kidney would not affect the loss 9 of earning capacity, therefore, no disability could be assigned. It was lastly submitted that accident occurred in the middle of road, insurer had taken a specific objection regarding non-joinder of necessary party. As Tribunal had given a finding that rider of two wheeler also contributed to some extent, claimant ought to have impleaded owner and insurer of Scooter. His failure, led to passing of impugned award and same was justified. It was alternatively submitted that in case this Court were to shift burden of payment of entire compensation on insurer of Jeep, liberty be reserved to recover 10% share from owner and insurer of scooter.
10. Heard the learned counsel for both parties.
11. From above submission, occurrence of accident involving insured vehicle due to rash and negligent driving by its driver and claimant sustaining grievous injuries therein is not in dispute. Issuance of insurance policy and its validity as on date of accident is also not in dispute. Tribunal determined age of claimant as 33 years 10 at the time of accident and his occupation as driver. It assessed compensation and passed award. Insurer has not challenged award, therefore, liability of insurer to pay compensation is not in dispute. Claimant is in appeal challenging finding insofar as contributory negligence and seeking enhancement of compensation. Therefore, points that arise for consideration are:
(i) Whether finding of Tribunal insofar as apportionment of contributory negligence to the extent of 10% against rider of scooter and consequent denial of compensation to said extent is justified?
(ii) Whether claimant is entitled for enhancement of compensation as sought for?
12. In order to establish negligence, claimant produced copy of FIR, complaint, spot mahazar, Motor Vehicles Inspector's report and Charge Sheet marked as Exs.P1 to P4 and P136 respectively. Complaint, FIR, charge sheet are against driver of Jeep. Claimant was admittedly, pillion rider. While answering issue regarding 11 contributory negligence, Tribunal has taken note of contents of Ex.P3 - Spot Mahazar, which indicate that width of road accident spot was 40 feet with 5 feet footpath on either side. Accident spot was towards centre of road. From contents of Ex.P4, accident appears to be a head-on collision. Neither driver of jeep nor rider of motorcycle are examined before Tribunal. Merely the ground that accident occurred in middle of road, it would not be available for Tribunal to apportion contributory negligence especially when complaint, FIR and charge sheet are against driver of jeep. Therefore, finding of Tribunal regarding contributory negligence would be contrary to record and unjustified. Point No.1 is answered in negative. Finding of Tribunal regarding contributory negligence is set aside.
Point No.2:
13. In order to establish his age, claimant has produced copy of his Aadhar Card as Ex.P11. Date of birth indicated therein is 24.10.1984. Accident occurred 12 on 09.01.2017. Therefore, as on date, claimant would be 33 years of age.
14. Insofar as occupation, claimant has produced salary certificate as Ex.P.131 issued by M/s Antony Waste Handling Cell Pvt. Ltd., which indicates that he was employed as a driver from 01.02.2015 with gross salary of Rs.12,190/- per month. Claimant has also examined an official of employer as PW.2. He corroborated contents of Ex.P131. Monthly salary of Rs.12,190/- would not attract income tax. Therefore, Tribunal was not justified in assessing monthly income at Rs.11,000/-. Same has to be taken at Rs.12,190/-.
15. In order to establish injuries and disability, claimant produced wound certificate as per Ex.P5 and disability certificate as per Ex.P6. Claimant also examined doctor as PW.4. He examined claimant on 15.09.2017 and noted following disabilities::.
"1) Restriction of right ankle and left knee joint movements.13
2) Difficulty in walking, climbing upstairs, walking slope and squatting.
3) X-ray shows fracture union with implant in both tibia and left medial malleolus."
He also stated that"
"5. I state that, after perusal of wound certificate, case sheet, physical & radiological examination, we are of the opinion that he has permanent physical disability of 13% in right lower limb, 31% in left lower limb % 30% with respect to whole body through kidney loss. The removal of implant will cost about Rs.50,000/- in general ward of above said hospital. This permanent disability will interfere with profession of Mr.Ivan D'souza and future earning capacity."
16. Admittedly, claimant sustained fracture of both bones and suffered 13% of permanent physical disability in respect of right lower limb and 31% in respect of left lower limb apart from loss of one kidney. Considering occupation of claimant as driver, disability sustained would indeed affect earning capacity. PW.3 - representative of claimant's employer stated that after accident, services of claimant were discontinued. 14 Therefore, claimant has lost employment on account of injuries sustained in accident. However, claimant would still be able to earn from alternate employment. There is no evidence led by claimant in order to establish exact extent of loss of income on account of injuries sustained in accident. Though PW.4 - Dr. Mayur Rai has stated that due to accident, claimant is suffering 30% disability on account of loss of kidney, normal, removal of one kidney would not affect earning capacity except in case of strenuous jobs. There is no evidence led to establish that claimant was required to do strenuous jobs. Therefore, loss of employment and restriction of options in alternate employment require to be considered. Tribunal has taken loss of earning capacity at 24% to whole body. As there is loss of employment and restriction of options in alternative avocation, it would be just and proper to assess loss of earning capacity at 35%. Claimant was aged about 33 years. Multiplier applicable would be '15'. Therefore, 'future loss of 15 income' would be Rs.12,190/- X 35% x 12 x 15 = Rs.7,67,970/-.
17. Tribunal has awarded a sum of Rs.90,000/- towards pain and suffering and Rs.11,85,300/- towards medical expenses. Compensation awarded towards pain and suffering appears to be just and proper. Considering extent of bills submitted, since there is complete reimbursement of medical expenses, there is no scope for enhancement.
18. Claimant was inpatient for a period of 70 days. Tribunal awarded Rs.90,000/- towards 'food, attendant and conveyance' which appears to be just and proper. There is no scope for enhancement.
19. Claimant sustained permanent physical disability. As per evidence of PW.4, there is 13% disability in respect of right lower limb, 31% in respect of left lower limb and 30% to whole body due to loss of kidney. Tribunal awarded meager compensation of Rs.10,000/- towards 'loss of amenities', which would be 16 grossly inadequate. It would be appropriate to award Rs.1,40,000/- in addition to Rs.10,000/- awarded by Tribunal i.e., Rs.1,50,000/- is awarded towards 'loss of amenities'. Tribunal awarded Rs.20,000/- towards 'future medical expenses'. As per evidence of PW.4 cost of implants of removal of implants, would be Rs.50,000/- Hence, it would be appropriate to award Rs.30,000/- in addition to Rs.20,000/- awarded by Tribunal. Totally Rs.50,000/- is awarded towards 'future medical expenses'.
Claimant was inpatient for a period of 70 days. Apart from the same, he would have lost income during period of recuperation. Hence, it would be appropriate to consider loss of income during treatment and recuperation, for a period of five months and which would be Rs.60,950/-(Rs.12,190 x 5).
Thus, claimant would be entitled for a total compensation of Rs.23,94,220/-. Point No.2 is answered partly in affirmative.
17
21. Hence, following:
ORDER
(i) Appeal is allowed in part with costs.
Compensation is enhanced to Rs.23,94,220/- as against Rs.17,21,962/- warded by Tribunal, with interest at 6% p.a from date of claim petition till deposit.
(ii) Insurance company is directed to deposit entire award amount within a period of six weeks from the date of receipt of copy of this order.
(iii) On deposit, a sum of Rs.16,00,000/- (Rupees Sixteen Lakhs only including amount released, if any), is ordered to be released to claimant. Remaining amount is to be kept in Fixed Deposit in any Nationalised Bank or postal deposit for a period of three years. Claimant would be entitled to withdraw interest accrued thereon periodically.
Sd/-
JUDGE BS