Karnataka High Court
M/S Icici Lombard General Insurance ... vs S Shivakumar on 19 June, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
MFA No.6890/2011 C/W MFA.CROB.No.77/2012 (MV)
MFA No.6890/2011
BETWEEN:
M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD.
ZENITH HOUSE, KESAVA RAO KHADE MARG
MAHALAKSHMI, MUMBAI, MAHARASHTRA
NOW REP. BY ITS MANAGER
M/S ICICI LOMBARD GENERAL INSURANCE CO. LTD.
S V R COMPLEX, NO.89, 2ND FLOOR
HOSUR MAIN ROAD, BANGALORE 68. ...APPELLANT
(BY SRI H N KESHAVA PRASHANTH, ADVOCATE)
AND
1. S SHIVAKUMAR
S/O SRINIVASIAH
AGED 30 YEARS, HALLIDIDDI VILLAGE
CHATRA HOBLI, NANJANGUD-571 301.
2. SATISH KUMAR
S/O RAMACHANDRAN NAIK
PULIYACHIKATHAVEDU, PULAMAN, KOTTARKAR TALUK
KOLLAM DIST., KERALA-686 001.
3. MANJU SARAMANU
S/O MANUCHAI, 30 YEARS
PALAKOTTA, CHAKOB NIVAS
KISSIKIRAKARA, KOTTRAKKARA TALU
KOLLAM DIST., KERALA ... RESPONDENTS
(By SRI P.MAHESHA, ADVOCATE FOR R1; R2 & R3-SERVED)
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THIS APPEAL IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:15.03.2011 PASSED IN
MVC NO.33/2009, ON THE FILE OF SENIOR CIVIL JUDGE AT
NANJANGUD, AWARDING COMPENSATION WITH INTEREST &
ETC.
MFA.CROB.No.77/2012
BETWEEN:
S.SHIVAKUMAR
S/O. SRINIVASA NAIKA
AGED ABOUT 33 YEARS, R/AT: HALLIDIDDI VILLAGE
CHATRA HOBLI, NANJANGUD TALUK
MYSORE DISTRICT. ...CROSS OBJECTOR
(BY SRI P MAHESHA, ADV.)
AND:
1. SATISH KUMAR.R
S/O RAMACHANDRA NAIR
AGED ABOUT 33 YEARS
PULIYAZHIKATHU VEEDU, PULAMON
KOTTARAKARA TALUK, KOLLAM DISTRICT
KERALA STATE.
2. MANJU SARAMANU
S/O MANU JOY
AGED 33 YEARS
R/O. PALAKOTTA, JACOB NIVASA
KIZHAKKARA, KOTTARAKKARA TALUK
KOLLAM DISTRICT, KERALA STATE.
3. M/S. ICICI LOMBARD GENERAL
INSURANCE COMPANY LTD.
ZENITH HOUSE, KESAVA RAO KHADE MARG
MAHALAKSHMI, MUMBAI
MAHARASHTRA STATE, NOW REP.
BY ITS BRANCH MANAGER. ... RESPONDENTS
(BY SRI H N KESHAVA PRASHANTH, ADVOCATE FOR R3 )
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THIS CROSS OBJECTION IS FILED UNDER ORDER 41
RULE 22 CPC, TO MODIFY THE JUDGMENT AND AWARD
DATED:15.03.2011 PASSED IN MVC NO.33/2009 ON THE FILE
OF SENIOR CIVIL JUDGE AT NANJANGUD, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
***
THIS APPEAL & CROSS OBJECTION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
MFA No.6890/2011 is filed by Insurance Company for reduction of compensation.
MFA.CROB.No.77/2012 is filed by claimant for enhancement of compensation.
2. I have heard Sri H.N.Keshava Prashanth, learned counsel for Insurance Company and Sri P.Mahesha, learned counsel for claimant.
3. The learned counsel for Insurance Company has made following submissions:-
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I. The claimant had been reimbursed medical expenses by way of medi-claim policy obtained through his employer. Therefore, Tribunal should not have awarded compensation towards "medical expenses".
II. The claimant continues to work as a machine operator in M/s.ABB Global Industries & Services Limited (Unit:Raman Boards), Nanjangud Taluk. There is neither reduction in salary nor rank. Therefore, Tribunal ought not have awarded compensation towards "loss of earning capacity & loss of future earnings".
III. The claimant was riding motorcycle, carrying an additional pillion rider. In the circumstances, Tribunal should have held that rider of motorcycle was guilty of contributory negligence.
4. The learned counsel for claimant, justifying the findings recorded by the Tribunal would submit that 5 Tribunal has not awarded compensation towards "attendant charges" & "future medical expenses".
Regarding negligence:-
5. As far as claimant is concerned, it was a case of composite negligence. If the insurer or insured of offending vehicle had any grievance against rider of motorcycle, they should have taken steps to implead rider, insurer or insured of motorcycle. The claimant had right to proceed against any one of the joint tort-feasors or both joint tort-feasors. Therefore, submission of learned counsel for Insurance Company that Tribunal should have held that the rider of motorcycle guilty of contributory negligence cannot be accepted.
6. The Tribunal has awarded compensation of Rs.1,56,763/- towards "medical expenses". The claimant has admitted that he had group insurance policy through his employer and he had received a sum of Rs.99,388/- from 6 Insurance Company under group insurance policy held by him.
7. In MFA No.6950/2007 c/w MFA Nos.6952/2007 & 15422/2007 dated 11.10.2012, this court has referred to a decision of this court, reported in 2010 ACJ 2742, wherein the learned single Judge of this court has drawn an analogy in the case of a Government Servant inasmuch as whatever the amount a Government Servant gets reimbursed from his employer, the said amount will be deducted from out of the total amount arrived at by the Tribunal and the balance will have to be paid to him. On the same lines, whatever the amount the claimant gets from any scheme like Mediclaim etc., the said amount will have to be deducted from the actual amount payable to claimant.
8. The learned counsel for claimant, relying on the judgment of this court, reported in ILR 2000 KAR 3443 (in the case of United India Insurance Co. Ltd. Vs. D.C. Rajanna & Another) and judgment of this court, reported in ILR 2008 7 KAR 3277 (in the case of Shaheed Ahmed Vs. Shankaranarayana Bhat and Another) would submit that amount reimbursed to claimant under medi-claim policy was consequent to premium paid by claimant. There was contractual obligation between claimant and Insurance Company. Therefore, it cannot be held that claimant had paid premium to mitigate hardship to tort-feasor.
9. In a decision reported in ILR 2008 KAR 3277 (in the case of Shaheed Ahmed Vs. Shankaranarayana Bhat and Another), this court has held that amount received by claimant therein under mediclaim policy from Sundaram Insurance Company would not come within the periphery of Motor Vehicles Act to be termed as 'pecuniary advantage' liable for deduction.
In the case on hand, claimant was covered under group insurance policy held by his employer. The evidence on record does not disclose that claimant had paid premium. Therefore, compensation of Rs.1,56,763/- awarded by 8 Tribunal has to be reduced by a sum of Rs.99,388/-, which claimant had received under group insurance policy held by him through his employer. Thus, claimant would be entitled to compensation of Rs.57,375/- towards "medical expenses".
10. It is true that employer of claimant has deposed that even after accident, claimant continues to work as an operator in M/s.ABB Global Industries & Services Limited (Unit:Raman Boards), however he has deposed that work turned out by him has been reduced after accident. The Tribunal has awarded compensation of Rs.2,33,950/- towards "loss of earning capacity & loss of future earnings"
by determining permanent physical disability vis-à-vis loss of earning capacity at 10%, taking salary of deceased at Rs.13,000/- per month as multiplicand and applying '15' multiplier appropriate to the age of claimant.
11. It is true that consequent to injuries suffered by him in accident, the income of claimant has not been reduced. The learned counsel for Insurance Company, relying on the 9 judgment of this court, reported in ILR 2000 KAR 3443 (in the case of United India Insurance Co. Ltd. Vs. D.C. Rajanna & Another), would submit that claimant had not suffered future loss of earnings. The question of awarding compensation under this head does not arise.
In the aforestated case, claimant was working as a Deputy Manager in HMT and there was neither reduction in rank nor salary.
In the case on hand, claimant was working as a machine operator. His work involves physical activity. The claimant had suffered fractures of right acetabulum & right inferior public rami, fracture of shaft of middle 1/3rd of right tibia & fibula, depressed fracture of lateral right tibial condyle. The Medical Officer has assessed permanent physical disability vis-à-vis loss of earning capacity at 10%. The claimant may not have immediate apprehension of loss of earnings.
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12. In a decision reported in 2009(2) KCCR 1288 (in the case of N.Obalaranga Vs. The United India Insurance Co. Ltd., Bangalore and Another), this court has held:-
(a) future loss cannot usually be proved only a broad estimate can be made by the Court, on the proved facts and probabilities of each particular case.
(b) It would be a matter of evidence in each case, whether there is a total loss of earning or a permanent partial loss of earning or whether the loss is at a rate slowly tapering-off, as the claimant may become readjusted; or it could even be a loss total, partial or tapering, for a limited period. It would in the discretion of the Court to arrive at an average of the varying loss.
(c) Only because, a claimant returns to his former work at the same rate or takes up other work with a similar or better pay indicating that there is no visible continuing loss, the Court ought not to lose sight of the innumerable ways that a claimant may be worse-off in future.
Whether the loss of the present employment 11 which is a possibility usually envisaged or that he may be handicapped in getting a new job, even his appearance may tell against him, as for instance, if he has a visible eye or hand injury, though he would have adapted with complete success. In other words, in cases where there is no immediate loss and future loss, if uncertain, it ought not to prevent an award of damages. The Court ought to access and value the chance that there will be actual loss sooner or later.
(d) The award of compensation ought not to be excessively generous, under the head of loss of future earnings, as would far exceed the claimant's earnings if he had not sustained the impairment."
In the case on hand, if the claimant had not suffered aforestated permanent physical disabilities consequent to injuries suffered in the accident, claimant might have used his experience to pursue gainful avocation after his retirement. Though permanent physical disability had not resulted in immediate loss of earning capacity & loss of 12 future earnings, yet the permanent physical disabilities would come in the way of claimant pursuing gainful avocation with his aforestated experience after his retirement. In the circumstances, claimant is entitled to compensation of Rs.1,09,200/- (Rs.13,000/- x 12 x 7 x 0.10) towards "loss of earning capacity & loss of future earnings". The Tribunal has not awarded compensation towards "loss of amenities & enjoyment of life". The claimant had suffered aforestated multiple fractures. Even after complete treatment, claimant suffers from permanent physical disabilities. The claimant has to suffer from pain and inconvenience during the rest of his life. Therefore, I award compensation of Rs.50,000/- towards "loss of amenities & enjoyment of life". The Tribunal has not made provision for "future medical expenses". Having regard to number of fractures, I award compensation of Rs.30,000/- towards "future medical expenses".
13. Thus, compensation awarded by Tribunal is modified as follows:-
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I. Pain & suffering : Rs. 40,000/-
II. Medical expenses Rs.57,375
rounded off to : Rs. 57,500/-
III. Loss of earnings during laid up period Rs.55,454/-, rounded off to : Rs. 55,500/-
IV. Attendant charges, Conveyance & Nourishment food : Rs. 10,000/-
V. Loss of earning capacity & loss of future earnings (Rs.13,000/- x 12 x 7 x 0.10) Rs.1,09,200/- rounded off to : Rs.1,09,000/- VI. Loss of amenities & enjoyment of life : Rs. 50,000/- VII. Future medical expenses : Rs. 30,000/-
Total compensation : Rs.3,52,000/-
14. In the result, I pass the following:-
ORDER MFA No.6890/2011 filed by Insurance Company is accepted in part. The impugned award is modified, compensation of Rs.4,77,467/- awarded by Tribunal is reduced to Rs.3,52,000/-. The rest of the impugned award as it relates to rate of interest, period of accrual of interest, ratio of payment and investment is confirmed. In view of acceptance of MFA No.6890/2011 filed by Insurance 14 Company in part, MFA.CROB.No.77/2012 filed by the claimant is dismissed. The amount deposited by Insurance Company shall be transferred to Tribunal.
Sd/-
JUDGE SNN