Karnataka High Court
The Divisional Manager The Oriental ... vs Justin Anthony on 8 November, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF NOVEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.11440/2012
C/W
M.F.A.NO.10985/2012 (MVC)
M.F.A.NO.11440/2012
BETWEEN:
The Divisional Manager,
The oriental Insurance Co. Ltd.,
1/24, Shah Building,
Ashoknagar, Nippani,
Karnataka
Now represented by its
Regional Manager
The Oriental Insurance Co. Ltd.,
Regional Office, No.44/45
Leo shopping complex,
Residency road,
Bangalore-25. ... Appellant
(By Smt. Harini Shivananda, Advocate)
AND:
1. Justin Anthony,
Aged about 32 years
S/o E.J. Anthony
R/o Eyyalli house,
2
Konalu village and post
Puttur Taluk,
D.K-574 229.
2. Smt. Gayathri Devi Jalan
Aged about 38 years
W/o V.K. Jalan
Prop: M/s Kumar Agencies
Bhagavathi Nagar
1st main Road
Mangalore-575 001.
3. Bajaj Alianz General Insurance co. Ltd.,
403 & 404, IV Floor,
Crystal Arc, Near Hotel Roopa
Balmatta Road,
Mangalore-01.
4. Maruthi Kallappa More
S/o Kallappa More,
Aged about 50 years
R/o Kanagala, Hukkeri Taluk
Belgaum District-591 225. ... Respondents
(By Sri. Pundikai Ishwara Bhat, Advocate)
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 14.06.2012
passed in MVC No.165/2010 on the file of the III
Additional Senior Civil Judge, Member, MACT,
Mangalore D.K, awarding a compensation of
Rs.6,53,200/- with interest @ 6% p.a. on Rs. 2,71,000/-
from the date of petition till realisation.
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M.F.A.NO.10985/2012
BETWEEN:
Mr. Justine Anthony,
Aged about 33 years
S/o E.J. Anthony
R/o Eyyalli house,
Konalu village and post
Puttur Taluk,
D.K-574 229. ...Appellant
(By Sri. Pundikai Ishwara Bhat, Advocate)
AND:
1. Smt. Gayathri Devi Jalan
Aged about 38 years
W/o V.K. Jalan
Prop: M/s Kumar Agencies
Bhagavathi Nagar
1st main Road
Mangalore-575 001.
2. Bajaj Alianz General Insurance co. Ltd.,
403 & 404, IV Floor,
Crystal Arc, Near Hotel Roopa
Balmatta Road,
Mangalore-01.
3. Maruthi Kallappa More
S/o Kallappa More,
Aged about 50 years
R/o Kanagala, Hukkeri Taluk
Belgaum District-591 225.
4. The oriental Insurance Co. Ltd.,
1/24, Shah Building,
4
Ashoknagar, Nippani,
Karnataka
Now represented by its
Regional Manager ... Respondents
(By Smt. Harini Shivananda, Advocate for R-4;
Notice to R-1 to R-3 are dispensed with)
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 14.06.2012
passed in MVC No.165/2010 on the file of the III
Additional Senior Civil Judge, Member, MACT,
Mangalore D.K partly allowing the claim petition for
compensation and seeking enhancement of
compensation.
These Appeals are coming on for hearing this day,
the Court delivered the following:
JUDGMENT
These appeals are directed against the judgment and award passed in MVC No.165/2010 dated 14.06.2012 by III Addl. Senior Civil Judge, Mangalore, Dakshina Kannada, whereunder claim petition has been allowed in part and a total compensation of Rs.6,53,000/- with interest @ 6% p.a. has been awarded.
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2. MFA No.11440/2012 is by the insurer questioning the quantum of compensation as exorbitant and MFA No.10985/2012 is by claimant seeking for enhancement not being satisfied with the compensation awarded by the Tribunal.
3. Both the appeals are taken up together for disposal, since appeal MFA No.10985/2012 has already been admitted and as also records have been secured from Tribunal connected appeal in MFA No.11440/2012 is also taken-up for final disposal.
4. Heard Sri Pundikai Ishwara Bhat, learned counsel appearing for claimant and Smt. Harini Shivanand, learned counsel appearing for insurer.
5. Facts in brief leading to the filing of these appeals are as follows:
On account of a road traffic accident that occurred on 27.08.2009 at about 4.00 P.M when claimant who was driver of a oil tanker bearing registration No.KA-6
19AB-0999 was proceeding towards Gulbarga was hit by a lorry bearing Registration No.KA-22A-4787 which was carrying cylinders near Kantihalla on Sindgi-
Vijapur Road and due to the impact claimant sustained injuries and he was admitted to hospital for treatment.
On account of injuries sustained in said accident claimant suffered consequential disability and as such a claim petition under section 166 of Motor Vehicles Act was filed seeking compensation of '20,00,000/-.
Appellant appeared and contested the matter by filing a detailed written statement by denying the averments made in the claim petition. Respondent No.3 herein was deleted and respondents 2 and 4 had remained exparte. Tribunal on appreciation of both oral and documentary evidence has awarded a total compensation of Rs.6,03,200/- under the following heads:
Sl.
Heads Amount
No.
1 Pain and Sufferings Rs.50,000=00
7
2 Medical Expenses and future Rs.1,20,000=00
Medical expenses
3 Food, extra nourishment and Rs.20,000=00
attendant charges
4 Loss of income during Rs.96,000=00
treatment period
5 Loss of future income due to Rs.3,07,200=00
disability
6 Conveyance charges Rs.10,000=00
TOTAL Rs.6,03,200=00
6. It is the contention of Smt.Harini
Shivananda, learned counsel appearing for the
appellant-insurance company that Tribunal committed a serious error in construing the income of claimant at '8,000/- per month and it is on the higher side and that too when there is no documentary evidence to the said effect and as such, she contends award of compensation of ' 3,07,200/- towards 'loss of future income' and '96,000/- towards 'loss of income during laid up period' is excessive and prays for same being reduced and prays for construing the income of claimant at Rs.4,000/- per month.8
7. Per contra, Sri Pundikai Ishwara Bhat, learned counsel appearing for claimant would submit that compensation awarded by Tribunal under all heads is abysmally on the lower side and he would contend that Tribunal committed a serious error in construing the disability sustained by the claimant at 20% when undisputedly claimant was a driver of hazardous material carrying vehicles and at the undisputed point of time he was driving the vehicle carrying hazardous chemicals/materials and on account of injuries sustained he has suffered functional disability to an extent of 100% and now he is unable to carry on the avocation of a driver and as such, he seeks for construing the disability of the claimant at 100% instead of 20%. He would elaborate his submission by contending that Tribunal ought to have awarded higher compensation towards 'pain and suffering' and just and reasonable compensation towards 'loss of amenities in life' which claimant is now deprived of on account of 9 injuries sustained and consequential disability suffered.
He would draw the attention of the Court to the memo filed today enclosing original license, which would indicate that license of the claimant has not been renewed according to the learned counsel for claimant and this would indicate that he has 100% functional disability. On these grounds he seeks for enhancement of compensation.
8. In reply to Smt Harini Shivanand, learned counsel appearing for insurance company would submit that while considering disability or permanent physical disability or functional disability to a claimant, Courts will have to examine as to whether the disability suffered by the claimant would prevent him from doing any job or any other avocation, which he was carrying earlier to the date of accident and in this perspective functional disability is to be construed and compensation is to be determined. As such, she contends that reasoning given by Tribunal at paragraph 10 19 of the award in question, is in consonance with the medical evidence available on record and in view of the same, she seeks for affirming the judgment and award passed by the Tribunal.
9. I have the heard the learned Advocates appearing for the parties and on perusal of judgment and award passed by the Tribunal, as also records secured from Tribunal, it would indicate that on 27.08.2009 claimant who was a driver of the oil tanker was carrying petroleum products in the offending vehicle after loading the same from Indian Oil Corporation, at Mangalore and was proceeding towards Gulbarga. It is an undisputed fact that said vehicle is classified as a hazardous substance carrying vehicle and taking a judicial notice of said fact, it requires to be held that the drivers of such vehicles will possess extra skill and for the said purpose the transport authorities would endorse on the licenses issued to such drivers. The license issued to the claimant herein would indicate 11 that such an endorsement has been made on 04.04.2008. Endorsement reads as under:
"The certificate Sl. No.11/dt 07.03.2008 issued by IOC Ltd, Mangalore, he has undergone training in safe Transportation of Hazardous goods valid - 06.03.2009.
Sd/-
RTO Puttur D.K.574 201 04.04.2008"
10. In view of the said entry it would clearly indicate that claimant was a driver of heavy goods vehicle. This is also evidenced from the driving license issued by jurisdictional transport authority, which came to be produced and marked at Ex.P-20. I do not find any good ground to disbelieve the said evidence. Thus, the only conclusion that can be drawn would be is claimant was a driver possessing extra skill and as such, he was driving a heavy goods vehicle carrying hazardous chemicals.
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11. Now turning my attention towards the quantum of compensation awarded by Tribunal, which is already extracted hereinabove and on evaluation of entire evidence available on record, it would indicate that claimant had sustained fracture of both bones middle third right forearm with ulnar styloid process fracture, fracture distal end of left radius with intra- articular extension with ulnar styloid process fracture, segmental fracture of both right and left femur with comminution, avulsion fracture of tibial attachment of right ACL and PCL, fracture of left superior and inferior public rami, undisplaced fracture of right 7th and 8th ribs, undisplaced fracture of posterior wall of left acetabulum and multiple lacerated wounds over right side of chest and iliac region, as evidence from wound certificate Ex.P-3. Tribunal having noticed these injuries, as also the number of days of hospitalization namely for a period of 54 days commencing from 27.08.2009 to 15.10.2009 under different spells has awarded a sum of Rs.50,000/- towards 'pain and 13 suffering'. Claimant was an inpatient on 8 occasions. Treated doctor has been examined as P.W.2., he has stated that claimant has undergone surgery under general anesthesia on 08.09.2009 and 10.09.2009. He also stated that claimant has underwent bone marrow infiltration of both femur under spinal anesthesia on 10.10.2009 and one more surgery on 03.11.2009. On account of complaint of pain in the right forearm and both thighs, claimant has underwent bone marrow injection to both the femur and right ulna under general anesthesia on 03.12.2009 and for bone grafting he has underwent surgery under general anesthesia on 19.01.2010. On account of implants having broken and there being malunion of fracture of right femur one more surgery was conducted on claimant for bone locking and fixation of interlocking nail of right femur and claimant had to undergo surgery on 31.08.2010. Again claimant was readmitted on 13.09.2010 on account of puss discharge at the operation site and was 14 given intravenous antibiotics upto 15.09.2010 till he was discharged.
12. Considering the number of days of hospitalization and surgeries he has undergone, I am of the considered view that compensation towards 'pain and suffering' requires to be enhanced by awarding an additional sum of Rs.50,000/- and accordingly, it is hereby awarded.
13. Tribunal having considered voluminous medical evidence available on record and having noticed the disability sustained by claimant, for reasons best known has failed to award compensation towards 'loss of amenities in life'. On account of these injuries sustained and consequential disability suffered claimant has to forego certain comforts throughout his life. As such, just and reasonable compensation towards 'loss of amenities' requires to be awarded which has not been awarded by the Tribunal. Hence, a sum of Rs.75,000/- is awarded towards 'loss of amenities in life'. 15
14. As noticed hereinabove claimant was a driver of vehicle carrying hazardous substances, which requires a special skill and it is because of this reason, a separate certificate has to be obtained from the jurisdictional regional authority. Said certificate had been obtained by the claimant which came to be reflected in his driving license which was marked as Ex.P-20. Claimant contended that he was earning Rs.8,000/-per month which has been accepted by the Tribunal. Though Sri Pundikai Ishwara Bhat, learned counsel appearing for the claimant would contend that 30% of income is to be added as future aspects, I am not inclined to accept the same in view of the pendency of said issue before the larger bench of Hon'ble Apex Court.
15. Be that as it may. While awarding compensation in case of disability, evidence available on record would be a factor which can be taken note of for awarding compensation. In a given circumstance, even 16 if the whole body disability as opined were to be 20% or 25% as the case may be functional disability may be construed at 100%. For instance a computer operator losing his first or second finger of both the hands will have to be considered as losing 100% earning capacity, inasmuch as such person would not be able to do any other avocation. Yet another instance which can be given would be that of a labourer losing both hands at the distal end radius by virtue of which he cannot be expected to change his avocation or carry on with any other avocation other than doing labour work. On account of losing his both hands his loss of earning capacity will be to an extent of 100%. On the other hand if a person who is carrying on desk work were to lose one leg by way of amputation even at the thigh level, and disability as per Workmen Compensation Act would be 60% loss of earning capacity would be not to that extent. It depends on facts and circumstances of each case. It would be appropriate to note the judgment of the Apex Court in the case of MOHAN SONI VS. RAM 17 AVTAR TOMAR AND OTHERS reported in 2012 ACJ 583, where under similar circumstances Hon'ble Apex Court has held that loss of earning capacity in respect of those persons working under unorganized sector has to be proved by leading cogent evidence either that victim had changed his avocation or the means of his livelihood would be available by virtue of such change in avocation and he was deriving certain income and it has been held by the Apex Court as under:
"10. In the light of aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellant's earning capacity as a result of the amputation of his left leg was only 50 per cent. It is noted that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross- examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who had suffered 18 some serious permanent disability resulting from the loss of a limb, etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his avocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection [as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995] or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evident that the victim had in fact changed his avocation or the means of his livelihood and by virtue of such change he was deriving a certain income. The loss of earning capacity of the appellant, according to us, may be as high as 100 per cent but in no case it would be less than 90 per cent. We, accordingly, find and hold that the compensation for the loss of appellant's future earnings must be computed on that basis. On calculation on that basis, the amount of compensation would come to Rs.3,56,400 and after addition of a sum of Rs.30,000 and Rs.15,000 the total amount would be Rs.4,01,400. The additional compensation amount would carry interest at the rate of 9 per cent per annum from the date of filing of the claim petition till the date of payment. The additional amount of compensation along with interest should be 19 paid to the appellant without delay and not later than three months from today."
16. Yet again Hon'ble Apex Court in the case of RAMACHANDRAPPA VS. THE MANAGER, ROYAL SUNDARAM ALIANCE INSURANCE COMPANY LIMITED reported in AIR 2011 SC 2951 has held that compensation is based upon the loss of claimant's earnings or earning capacity and compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of incapacity resulting from the injury. It has been held as under:
"8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by 20 the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper."
17. Thus keeping the contours laid down by the Hon'ble Apex Court and facts as discussed hereinabove and medical evidence available on record as tendered by doctor-P.W.2 when examined it would indicate that claimant had suffered disability to his left lower limb to an extent of 57%. Claimant being a driver and he having not renewed his license and in view of the fact that he is even unable to do his daily chores, it would be just and reasonable to conclude by accepting the medical evidence and holding that functional disability or loss of earning capacity to the claimant would be to an extent of 60%. Since Tribunal has accepted the income of the claimant at Rs.8,000/- per month and there being no other possible view, which can be taken since claimant was a driver of Hazardous goods carrying vehicle, it is 21 hereby accepted and accordingly, compensation towards "loss of future income" is recomputed herein below:
8000 x 60 = 4800 x 12 x 16 = 9,21,600/-
100
Less: awarded by Tribunal = 3,07,200/-
-------------
Balance/Additional = 6,14,400/-
-------------
18. Thus, claimant would be entitled to 'loss of future earning' in a sum of Rs.6,14,400/-. Since this court has enhanced the compensation towards 'pain and suffering' by awarding a sum of Rs.50,000/- and Rs.75,000/- towards 'loss of amenities' claimant would be entitled to a compensation of Rs.7,39,400/- with interest @ 6% p.a. Same is hereby awarded.
19. For the reasons aforestated following is passed:
ORDER i. Appeal in MFA No.10985/2012 is hereby allowed in part.22
ii. Judgment and award passed by MACT, Mangalore, Dakshina Kannada, dated 14.06.2012 in MVC No.165/2010 is hereby modified and an additional compensation of Rs.7,39,400/- is hereby awarded, which shall carry interest @ 6% p.a. from the date of petition till date of payment or deposit, whichever is earlier.
iii. MFA No.11440/2012 is hereby
dismissed.
iv. Out of the enhanced compensation a
sum of Rs.5,00,000/- with interest is ordered to be kept in a fixed deposit in the name of claimant in any Nationalized Bank or Scheduled Bank of claimant's choice for a period of three years with liberty to the claimant to draw periodical interest.23
v. Balance amount of Rs.2,39,400/- with proportionate interest is ordered to be released in favour of claimant on proper identification.
vi. Amount in deposit in MFA
No.11440/2012 is ordered to be
transmitted to the jurisdictional
Tribunal along with records forthwith by the Registry.
vii. Parties to bear their respective costs in these appeals.
Sd/-
JUDGE DR