Karnataka High Court
Mahesha N vs Muruganandhanam K on 5 January, 2018
Bench: B.S Patil, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05th DAY OF JANUARY, 2018
PRESENT
THE HON'BLE MR.JUSTICE B S PATIL
AND
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A. NO. 638/2016
C/W
MF.A.NO.6993/2015 (MV)
IN M.F.A.NO.638/2016
BETWEEN:
MAHESHA N
S/O NARAYANAPPA K M
AGED ABOUT 24 YEARS
R/AT NO.21, CHHODASANDRA KUDALU
PACHAYATH HUSKUR,
BENGALURU URBAN-560 100
SINCE SUFFERING FROM MEMORY LOSS
REP. BY ITS NEXT FRIEND
BROTHER HARISH N,
AGED ABOUT 31 YEARS
R/AT NO.21, CHHODASANDRA KUDALU
PANCHAYATH HUSKUR
BENGALURU URBAN-560 100.
... APPELLANT
(BY SRI R. SAHSHIDAHARA, ADVOCATE)
2
AND:
1. MURUGANANDHANAM K
S/O KRISHNA MURTHY, MAJOR
NO.3/267, BALAJINAGAR
BEDARPALLI, SIPCOT POST
HOSUR TALUK, KRISHNAGIRI
DISTRICT-635 201
TAMILNADU
(OWNER OF TIPPER LORRY)
2. THE RELIANCE GENERAL
INSURANCE COMPANY LIMITED
REP. BY ITS MANAGER
NO.60/4, 2ND FLOOR, ENVIRON
TOWNERS, HOUSE MAIN ROAD
ELECTRONIC CITY,
BENGALURU-560 100
... RESPONDENTS
(BY SRI B. PRADEEP, ADVOCATE FOR R-2;
R-1 NOTICE DISPENSED WITH V/O DTD. 31.10.2017)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
29.06.2015 PASSED IN MVC NO.5958/2013 ON THE FILE
OF THE 13TH ADDITIONAL SMALL CAUSES JUDGE,
MEMBER, MACT, BENGALURU PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
3
IN M.F.A.NO.6993/2015
BETWEEN:
THE MANAGER
THE RELIANCE GENERAL INSURANCE
CO. LTD., NO.60/4, 2ND FLOOR
ENVIRON TOWERS
HOUSE MAIN ROAD
ELECTRONIC CITY
BANGALORE-560 100
NOW REP. BY ITS
THE MANAGER
RELIANCE GENERAL INSURANCE
CO. LTD., RGICL-28
EAST WING, 5TH FLOOR
CENTENARY BUILDING
M.G. ROAD, BANGALORE-560 001.
...APPELLANT
(BY SRI. PRADEEP B, ADVOCATE)
AND:
1. MAHESHA N
S/O NARAYANAPPA K M
AGED ABOUT 24 YEARS
R/AT NO.21, CHHODASANDRA KUDALU
PACHAYATH HUSKUR,
BENGALURU URBAN-560 100
SINCE SUFFERING FROM MEMORY LOSS
REP. BY ITS NEXT FRIEND
BROTHER HARISH N,
AGED ABOUT 31 YEARS
R/AT NO.21, CHHODASANDRA KUDALU
4
PANCHAYATH HUSKUR
BENGALURU URBAN-560 100.
2. MURUGANANDHANAM K
S/O KRISHNA MURTHY
NO.3/267, BALAJINAGAR
BEDARPALLI, SIPCOT POST
HOSUR TALUK
KRISHNAGIRI DISTRICT-635 201
TAMILNADU.
...RESPONDENTS
(BY SRI. R. SHASHIDHARA, ADVOCATE FOR R-1;
NOTICE TO R-2 IS DISPENSED WITH V/O
DTD. 28/8/2017)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MC ACT AGAINST THE JUDGMENT AND AWARD DATED
29.06.2015 PASSED IN MVC NO.5958/2013 ON THE FILE
OF THE XIII ADDITIONAL SMALL CAUSE JUDGE,
MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU
AWARDING COMPENSATION OF Rs.19,48,000/- WITH
INTEREST @ 8% P.A. ON Rs. 17,98,000/- FROM THE DATE
OF PETITION TILL REALIZATION.
THESE APPEALS ARE COMING ON FOR ORDERS
THIS DAY, ARAVIND KUMAR J., DELIVERED THE
FOLLOWING:
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JUDGMENT
These two appeals have been filed by claimant and insurer being aggrieved by the judgment and award dated 29.06.2015 passed in MVC No.5958/2013 by MACT, Bengaluru.
2. MFA No.6993/2015 is filed by insurer questioning the quantum of compensation awarded by Tribunal urging that the same was on the higher side. Whereas, MFA No.638/2016 is filed by claimant seeking enhancement of compensation awarded by Tribunal. Though these two appeals are listed for 'Hearing on Interlocutory Application', by consent of learned Advocates appearing for both parties they are taken up for final disposal.
3. We have heard the arguments of Sri.B.Pradeep, learned counsel appearing for insurer 6 and Sri.R.Shashidhara, learned counsel appearing for claimant.
4. It is the contention of Sri.B.Pradeep, learned counsel appearing for insurer that Tribunal has awarded very high compensation and while computing compensation payable towards 'loss of future income' it has taken the income at `6,000/- per month without there being any convincing and cogent evidence. He would also submit that though doctor has assessed whole body disability at 33%, Tribunal was not justified in construing the whole body disability at 50%. He would elaborate his submission by contending that when Tribunal had awarded compensation towards 'loss of future income', it could not have granted a sum of `2,50,000/- under the head 'permanent physical impairment'. He would contend that in the absence of any positive evidence tendered by claimant, Tribunal 7 could not have awarded compensation towards 'future medical expenses'. He would also submit that compensation awarded by Tribunal under other heads are also on the higher side. Hence, he prays for allowing the appeal and seeks for reduction of quantum of compensation.
5. Per contra, Sri.R.Shashidhara, learned counsel appearing for claimant would submit that Tribunal having noticed the nature of grievous injuries sustained by claimant, has awarded a sum of `2,50,000/- towards 'permanent physical impairment' and there is no error committed by the Tribunal in this regard. He would contend that a sum of `1,50,000/- awarded towards 'loss of amenities and comfort' is on the lower side and as such, same requires to be enhanced. He would also submit that under all heads compensation deserves to be enhanced. Hence, he prays 8 for allowing the appeal by awarding higher compensation.
6. Having heard the learned Advocates appearing for parties, we are of the considered view that following points would arise for consideration:
(i) Whether the compensation awarded by the Tribunal is just and reasonable or does it require enhancement?
(ii) What order?
BRIEF BACKGROUND OF THE CASE:
7. A claim petition was filed by appellant in MFA No.638/2016 seeking compensation of `40,00,000/- contending interalia that on 21.01.2011 at about 10.00 a.m. while he was proceeding on his motorcycle along with his friend Diwakar from home to office and near Bommanahalli, opposite to Shaneshwara 9 Temple on service road of Hosur Main Road, Bangalore, near Nagarathnapura junction, a tipper lorry bearing registration No.TN-70 B-1311 came from Singasandra towards Hosur Road in a rash and negligent manner and dashed against the two wheeler and as a result of impact both rider and pillion fell down and suffered grievous injuries. Hence, seeking compensation claim petition was filed.
8. Insurer filed its statement of objections and denied the averments made in the claim petition.
Claimant examined his elder brother as PW2 and examined two doctors as PW1 and PW3 and got marked 20 documents as Exs.P-1 to P-20. On behalf of insurer no witnesses were examined and copy of policy issued to the offending vehicle was marked as Ex.R-1. 10
9. Tribunal on appreciation of entire evidence has awarded a total compensation of `19,48,000/- with interest at 8% p.a. from the date of petition till date of realization under the following heads:
SL.
PARTICULARS AMOUNT
NO.
1 Pain and Sufferings ` 1,00,000/-
2 Loss of income during laid up
period, Diet, Nourishment and
etc. ` 75,000/-
3 Attendant charges, Conveyance,
other incidental Charges and
etc. ` 75,000/-
4 Medical expenditure ` 4,50,000/-
5 Future Medical Expenditure ` 1,50,000/-
6 Loss of Future Earning
(6000 x 12 x 50/100 x 18) ` 6,48,000/-
7 Loss of Amenities and Comfort ` 1,50,000/-
8 Permanent Physical Impairment ` 2,50,000/-
9 For Marriage prospectus ` 50,000/-
TOTAL ` 19,48,000/-
10. In view of the fact that insurer having not challenged the judgment and award on any other ground except contending that quantum of compensation awarded by Tribunal is on the higher side 11 and claimant having contended that compensation awarded is abysmally on the lower side, we have examined these two appeals on the issue of quantum of compensation. No other ground has been urged by the insurer either in the memorandum of appeal or at the time of canvassing arguments on the appeals.
RE. POINT NO.1:
11. As per the evidence tendered before Tribunal by the claimant, it would disclose that after the accident claimant was shifted to LIVE 100, Hospital at Singasandra on Hosur Main Road in an unconscious state and according to evidence of Dr. Prathap Kumar Pani - PW1, who treated claimant, he had sustained following external injuries:
a. Multiple Scalp contusions.
b. Cut lacerated wound over right knee 2x3x1 cms. 12 He has deposed that claimant was diagnosed with Polytrauma injury (diffuse axonal injury with acute left fronto temperoprarietal subdural hematoma with midine shift) and multiple limb fractures. It is also deposed by PW1 that claimant was intubated and resuscitated. Tribunal has also taken note of evidence of doctor - PW3, who assessed the disability of claimant to arrive at a conclusion that whole body disability had to be construed at 50%.
12. On account of claimant being unable to tender evidence by entering witness box, his elder brother was examined as PW2 and he has stated that claimant underwent emergency decompressive craniotomy and clot evacuation surgery on 21.01.2011 due to head injury sustained. PW3 - doctor has stated that petitioner was having 74% disability in his cognitive / higher mental function amounting to 33% 13 disability of whole body. Taking this evidence into consideration and also CT scan films marked as Exs.
P-K1 to K4 and also the fact that claimant underwent two surgeries, Tribunal has construed whole body disability at 50%. Tribunal while assessing the evidence has taken note of the fact that PW3 had admitted that as per Almanco Medical Manual Guidelines 1/3rd of disability of a particular limb should be considered as whole body disability. The suggestion put to said doctor in the cross-examination suggesting that 50% disability assessed by him was erroneous, has been denied by him. It is in this background Tribunal having assessed the entire evidence of both doctors namely, PW1 and PW3, has arrived at a conclusion that whole body disability had to be construed at 50% and not 33% as suggested by the insurer.
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13. We are of the considered view that finding recorded by the Tribunal to arrive at the conclusion that disability of claimant was to the extent of 50%, cannot be held either excessive or on the lower side. Hence, we do not find any merit in the contention raised by both the learned Advocates and the same stands rejected.
14. Tribunal, except arriving at a conclusion that petitioner would be in need of one more surgery for removal of implants, in the light of evidence of PW1 and also the fact that claimant would need regular lifelong medication to prevent fits, has awarded a sum of `1,50,000/- towards 'future medical expenses'. We are of the considered view that Tribunal committed an error in this regard, inasmuch as, there was no documentary evidence tendered by claimant in this regard except oral evidence of PW1. Claimant also did not produce any certificate of PW1 or PW3 to establish 'future medical 15 expenses' that was required to be spent by the claimant. That apart, as rightly pointed out by learned counsel for insurer, the Neurosurgeon was not examined to establish that on account of any neurological ailments claimant would be required to take lifelong treatment. Evidence of PW1 would disclose that at the time of his discharge claimant was responding and obeying to all oral commands. He has also stated that claimant was able to understand and speak from the date of discharge. In the light of this evidence being available on record we are of the considered view that Tribunal was not justified in awarding a sum of `1,50,000/- towards 'future medical expenses'.
15. The evidence on record would also disclose that Tribunal after assessing the disability and noticing 'permanent physical impairment' that claimant had sustained, has awarded a sum of `2,50,000/- under the 16 head "permanent physical impairment". In addition Tribunal has awarded a sum of `1,50,000/- towards 'loss of amenities and comfort'. When Tribunal has awarded compensation towards 'loss of future earning' as well as compensation towards 'permanent physical impairment', awarding of compensation towards 'loss of amenities' would only be repetitive or doubling the compensation and as such, we are of the considered view that Tribunal was not justified in awarding a sum of `1,50,000/- towards 'loss of amenities and comfort'. In this regard also compensation awarded by Tribunal requires to be reduced.
16. It is noticed that Tribunal has awarded interest @ 8% p.a. from the date of petition till date of realization, which is marginally on the higher side and not consistent with the law laid down by the Hon'ble Apex Court and this Court in catena of judgments. 17 Hence, same requires to be reduced to 6% p.a. and accordingly, it is hereby reduced. Having carefully considered the entire material evidence available on record and on reappreciation of evidence both oral and documentary, we find that compensation awarded by the Tribunal under all other heads is just and reasonable and does not call for any interference. RE. POINT NO.2:
17. In the light of aforestated discussion, we are of the considered view that compensation awarded by Tribunal requires to be reduced by allowing the appeal filed by the insurer and dismissing the appeal filed by claimants.
Hence, we proceed to pass the following: 18
JUDGMENT
(i) MFA No.638/*2016 is hereby dismissed and MFA No.6993/2015 is hereby allowed in-part.
(ii) Judgment and award dated
29.06.2015 passed by the Motor
Accident Claims Tribunal (MACT),
Bengaluru, in MVC No.5958/2015 is
hereby modified and in substitution to compensation awarded by Tribunal in a sum of `19,48,000/-, a sum of `16,98,000/- is hereby awarded, which shall carry interest @ 6% p.a. from the date of petition till payment or deposit, whichever is earlier.
*Corrected V.C.O. dated 25-04-2018 19
(iii) Appellant - Insurance Company is hereby directed to deposit the entire compensation amount with interest excluding the amount already deposited before the jurisdictional Claims Tribunal within an outer limit of four (4) weeks from the date of receipt of copy of this judgment.
(iv) A sum of `10,00,000/- (Rupees Ten Lakhs only) shall be deposited in Fixed Deposit for a period of five (5) years in the name of claimant and claimant would be entitled to withdraw periodical interest. Balance amount with proportionate interest shall be released in favour of claimant forthwith by the Tribunal.
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(v) Amount in deposit before this Court in MFA No.6993/2015 along with accrued interest shall be transmitted to the jurisdictional Claims Tribunal by the registry along with original records forthwith.
No order as to costs.
SD/-
JUDGE SD/-
JUDGE DR