Karnataka High Court
Sri.Muninaryanappa vs Sri.Sanjeev Misra on 27 June, 2018
Bench: Raghvendra S.Chauhan, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE 2018
PRESENT
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
M.F.A.No.1277 OF 2015(MV)
BETWEEN:
Sri Muninarayanappa
S/o.Pillappa,
Aged about 72 years.
Since the appellant continued
To be vegetative state, not
Able to sign or put thumb
Impression and not able to
Speak, he is being continued
To be represented in this appeal
Also by next friend, his son:
Sri Vijayakumar B.M.
S/o.Muninarayanappa,
Aged about 38 years.
Both are residing at
No.889, 3rd Main Road,
5th Cross, M.C.Layout,
Vijayanagar,
Bangalore - 560 040. ... Appellant
(By Sri Jagadish G. and Sri N.Gopalkrishna, Advocates)
2
AND:
1. Sri Sanjeev Misra,
S/o.Rajnath Misra,
Major in age,
Residing at M/s.
Shivon India Pvt. Ltd.
No.858/21, 4th Cross,
M.C.Layout,
Vijayanagar,
Bangalore - 560 040.
2. The Branch Manager,
Reliance General
Insurance Co. Ltd.
No.60/4, Environ Towers,
2nd Floor, Hosur Main Road,
Electronic City,
Bangalore - 560 100. ... Respondents
(By Sri D.S.Sridhar, Advocate for R2:
Notice to R1 dispensed with vide order
Dated 17.08.2015)
This MFA is filed under Section 173(1) of MV Act against
the judgment and award dated 9.7.2014 passed in MVC
No.1015/2012 on the file of the 12th Additional Small Causes
Judge, Member, MACT, Bengaluru, partly allowing the claim
petition for compensation and seeking enhancement of
compensation and etc.
This MFA coming on for admission, this day, Raghvendra
S. Chauhan J, delivered the following:
3
JUDGMENT
Having suffered a vehicular accident, at the age of 69 years, having lost his ability to speak due to a head injury, the appellant is aggrieved by the grant of a meager amount of Rs.5,55,000/- along with an interest at 6% p.a., by award, dated 09.07.2014, passed by the M.A.C.T., Bengaluru (SCCH-8). Thus, the appellant has filed the present appeal for enhancement of the award amount.
2. The brief facts of the case are that on 29.11.2011, at about 11.30 a.m., the appellant, Mr.Muninarayanappa, was crossing the Fourth Cross Road, as a pedestrian, near the Mukthanjaneya Temple, M.C.Layout, Vijayanagar, Bengaluru. According to him, while he was crossing the road, he was observing the traffic rules. But suddenly, a car, bearing registration No.KA-02/MF-0118, being driven rashly and negligently, came and hit him. Due to the sudden impact, the appellant fell down, and sustained grievous injuries on his head, chest, neck, legs and hands. Immediately, he was rushed to the Anugraha Hospital. Thereafter, he was shifted to the Gayathri Hospital. From there, he was taken to the Columbia Asia 4 Hospital. The appellant claims that he was an inpatient from 04.12.2011 to 07.01.2012. He further claims that prior to the accident he was hale and hearty; he was engaged in silk trading business, and was an agriculturist. With these two activities, he was earning about Rs.10,000/- per month. But due to the accident, he has lost his capacity to earn the said amount. Therefore, after recovering from the injuries, the appellant submitted a claim petition before the learned Tribunal. In order to support his case, he examined three witnesses, including Dr.R.Srinivasa (P.W.3) and submitted forty-two documents. On the other hand, the Insurance Company neither examined any witness, nor submitted any documents. After appreciating the evidence, the learned Tribunal granted the compensation as aforementioned. Hence, this appeal.
3. Mr.Gopalakrishna, The learned counsel for the appellant, has vehemently contended that since the appellant was an agriculturist, he could not produce the relevant documents to buttress his case that he was earning Rs.10,000/- per month. In the absence of cogent evidence, the learned Tribunal has taken his notional income as Rs.5,000/- per month. However, in 5 catena of cases, this Court has held that if the documentary evidence is weak in establishing the actual income earned by the claimant, the learned Tribunal should treat the Schedule prepared by this Court, for the purpose of Lok-Adalath, as a guideline in order to assess the notional income of the injured or the deceased. According to the said Schedule, for an accident of 2011, the learned Tribunal should have taken Rs.6,500/- as the monthly income of the appellant. However, the learned Tribunal has taken merely Rs.5,000/- as his monthly income. Therefore, the assessment of income needs to be enhanced from Rs.5,000/- to Rs.6,500/- per month. Consequently, even the "loss of income during the laid up period" needs to be recalculated by this Court. Moreover, the amount for "loss of future earning" is also required to be recalculated in the light of re-assessment of income by this Court.
4. Secondly, according to the testimony of the Dr.R.Srinivasa (P.W.3), the appellant had suffered 80% of disability as he could not speak after the accident, plus 50% of the disability in other parts of his body. Despite the said testimony, the learned Tribunal has taken the disability to the 6 whole body as merely 25%. However, according to the learned counsel, both the disabilities were to be assessed simultaneously, the disability suffered by the whole body would come out to be more than 43%. Therefore, the loss of future earning should be recalculated by this Court, by taking into account the enhanced income along with an enhanced disability of the whole body.
5. Thirdly, considering the fact that the appellant was in and out of different hospitals, on three different occasions, and was an inpatient for almost two months, "the loss of income during laid up period" needs to be recalculated by this Court.
6. Fourthly, despite the fact that the appellant was hospitalizaed in three different hospitals, despite the fact he took a long time to recover from the accident, still, the learned Tribunal has granted a meager compensation for the category of "Conveyance, food, attender". Hence, the compensation should be enhanced.
7. Fifthly, in spite of the fact that the appellant lost his ability to speak, and has suffered bodily disability, yet the learned Tribunal has not granted any compensation for "loss of 7 amenities". Thus, some compensation should be granted for the said category.
8. On the other hand, Mr.D.S.Sridhar, the learned counsel for the Insurance Company, has pleaded that the compensation awarded is not meant to be a bonanza. Therefore, the learned Tribunal was justified in granting a compensation of Rs.5,55,000/- to the appellant. Hence, the learned counsel has supported the impugned award.
9. Heard the learned counsel for the parties and perused the impugned award.
10. In large number of cases, this Court has emphasized that in case of the absence of any cogent documentary evidence, which would establish the income of the injured, the income of the injured should be taken on notional basis, that, too, in accordance with the Schedule prepared by this Court for the purpose of Lok-Adalath. According to the said Schedule, for an accident of 2011, the income should be taken at Rs.6,500/- per month. Therefore, the appellant's income is enhanced from Rs.5,000/- to Rs.6,500/- per month.
8
11. A bare perusal of the evidence of the Dr.Srinivas (P.W.3) clearly reveals that due to the accident, the appellant has lost his ability to speak. Moreover, he has suffered from partial paralysis of the mouth. According to the Doctor, the appellant had suffered 80% of disability in his ability to speak, and 50% of disability from the other parts of the body. Therefore, taking the two figures together, in order to assess the functional disabilities of the appellant, this Court takes the functional disability as 43%.
12. Therefore, "the loss of future earning" and "the loss of income during the laid up period" need to be recalculated as under:
Monthly Income : Rs.6,500/-
Multiplier: 5
Disability: 43%
Rs.6,500 x 12 x 5 x 43% = Rs.1,67,700/-
Loss of income during laid up period : Rs.13,000/-
13. Undoubtedly, the appellant was admitted to different hospitals on three different occasions. Thus, he would have 9 required nutritional food during the said period. Moreover, during the period of heeling, the appellant would have required the assistance of an attendant. Therefore, the compensation amount paid to the appellant on the head of 'Conveyance, food and nourishment and attendant charges' is hereby enhanced from Rs.20,000/- to Rs.40,000/-.
14. Considering the fact that the appellant is an old man, aged 75 presently, considering the fact that he continues to work as an agriculturist, naturally he has suffered loss of amenities due to the accident. Therefore, this Court grants the appellant a compensation of Rs.40,000/- in the category of 'loss of amenities' suffered by him.
15. For the reasons stated above, the appeal filed by the claimant is hereby allowed. The award, dated 09.07.2012, stands modified as under:
As awarded As awarded
Compensation under by the by this
different Heads Tribunal Court
(Rs.) (Rs.)
Pain and suffering 50,000/- 50,000/-
Loss of income during laid 10,000/- 13,000/-
up period
10
Medical bills 4,00,000/- 4,00,000/-
Loss of future earnings 75,000/- 1,67,500/-
Conveyance, food and 20,000/- 40,000/-
nourishment, attendant
charges etc.
Loss of amenities - 40,000/-
Total 5,55,000/- 7,10,500/-
The Insurance Company is directed to deposit the entire compensation amount, along with an interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of three weeks, from the date of receipt of the certified copy of this judgment. The amount so deposited by the Insurance Company shall be disbursed to the claimant, after due verification of his identity.
Sd/-
JUDGE Sd/-
JUDGE Cm/-