Karnataka High Court
Mr B N Manjunath vs New India Assurance Co.Ltd., on 26 August, 2013
Bench: Mohan.M.Shantanagoudar, B.Sreenivase Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26th DAY OF AUGUST, 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE B. SREENIVASE GOWDA
M.F.A. NO.6999 OF 2009 (MV)
C/W
M.F.A. NO.6302 OF 2009 (MV)
IN M.F.A. NO.6999 OF 2009
BETWEEN :
B.N. Manjunath
S/o late Narayana
Aged about 39 years
R/a No.906, 49th Main
44th Cross, Kumaraswamy
Layout II Stage Bangalore-560 078
Petitioner since suffering from
Unsoundness of mind is
Rep by his wife and natural guardian
Smt. M.V. Roopa @ Roopa Manjunath. ..APPELLANT
(By Sri T. Krishna & Sri N.C. Mohan, Advs.,)
AND :
1. New India Assurance Co., Ltd.,
Rep by its Manager
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Shakthi Sadan, Near Post Office
Warcher Road, Vilar (T)
Mumbai.
2. New India Assurance Co., Ltd.,
Regional Office, No.2-B
Unity Building Annex
P. Kalinga Rao Road
Bangalore-560 027.
3. Sri Chandru
S/o Vidyasagar
No.20, Rohini Complex
Banashankari III Stage
Bangalore-560 085. ..RESPONDENTS
(By Sri C.R. Ravishankar, Adv., for R1 and R2;
Notice to R3 dispensed)
This MFA is filed under Section 173(1) of M.V. Act
against the Judgment and Award dated 13.4.2009 passed
in MVC No.3650/2008 on the file of the VI Addl. Judge,
Court of Small Causes, Member, MACT., Bangalore partly
allowing the claim petition for compensation and seeking
enhancement of compensation.
IN M.F.A. NO.6302 OF 2009
BETWEEN :
The New India Assurance Co., Ltd.,
Shakthi Sadan, Near Post Office
Warcher Road, Vilar (T), Mumbai
Rep by Regional Office
No.2-B, Unity Building Annex
Mission Road, Bangalore-560027
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By its Senior Regional Manager. ..APPELLANT
(By Sri C.R. Ravishankar, Adv.,)
AND :
1. B.N. Manjunath
Aged about 39 years
S/o late Narayana
R/a No.906, 49th Main
44th Cross, Kumaraswamy
Layout II Stage
Bangalore-560 078
since allegedly suffering from
unsoundness of mind is
Rep by his wife and natural guardian
Smt. M.V. Roopa @ Roopa Manjunath.
2. Sri Chandru
S/o Vidyasagar
No.20, Rohini Complex
Banashankari III Stage
Bangalore-560 085. ..RESPONDENTS
(By Sri M.C. Mohan, Adv., for R1)
This MFA is filed under Section 173(1) of M.V. Act
against the Judgment and Award dated 13.4.2009 passed
in MVC No.3650/2008 on the file of the VI Addl. Judge,
Court of Small Causes, Member, MACT., Bangalore (SCCH
No.2) awarding a compensation of Rs.9,60,000/- with
interest @ 6% p.a. from the date of petition till realization.
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These MFAs., are coming on for hearing, this day,
MOHAN .M. SHANTANAGOUDAR, J., delivered the
following:-
JUDGMENT
Mr. B.N.Manjunath, aged about 42 years, met with an accident on 23.2.2008, at about 10.30 p.m., consequent upon which, he sustained severe head injury and other injuries on other parts of the body. He was immediately admitted to Sagar Apollo Hospital, Bangalore and thereafter shifted to NIMHANS, Bangalore. Thereafter he was shifted from NIMHANS to St.Johns, Medical College Hospital, wherein he took treatment as inpatient from 23.2.2008 to 18.4.2008. Thereafter, he continued treatment as out patient. Claim petition came to be filed by him for payment of compensation, which came to be allowed in part by the Tribunal awarding -5- total compensation of Rs.9,60,000/- with interest at 6% per annum.
2. MFA.No.6999/2009 is filed by the claimant praying for enhancement of compensation. MFA.No.6302/2009 is filed by the Insurance Company praying for reduction of compensation. It is relevant to note that Insurance Company has not disputed its liability to pay the compensation.
3. Learned advocates on record argued in support of their respective cases and they have taken us through the material, including the evidence of PW.4, the doctor.
4. The claimant had got through his Diploma Examination in the year 1995. He had also completed Diploma in Electric Motor and Transformer Winding -6- Technology. A certificate issued by the National Apollo Institute of Technical Training, dated 6.2.1995 is produced at Ex.P12. The marks card issued in favour of the claimant relating to Diploma by the Department of Employment in Training (Industrial Training Institute, Somanahalli, Mandya District) is produced at Ex.P11. Ex.P13 is the order of appointment dated 10.3.2007 which reveals that the claimant was appointed as Electrical and Maintenance Supervisor on consolidated salary of Rs.9,000/- per month. The identity card of the claimant issued by GD India Private Limited (employer) is produced at Ex.P14. The salary certificates of August and September 2007 are produced at Ex.P15, which reveal that the gross salary of the claimant was Rs.9050/- and Rs.9250/- respectively for those months. -7-
Erroneously the claimant has produced the Birth Certificate of his daughter, dated 10.6.2002 as per Ex.P17. We are at a loss to understand as to why such Birth Certificate was produced. Therefore, the Birth Certificate of his daughter at Ex.P17 needs to be ignored.
5. From the aforementioned material, it is prima facie clear that the claimant was working in GD India Private Limited on consolidated salary of Rs.9,000/- per month. However, the Tribunal below has failed to accept those records on the ground that the documents at Ex.P22 and P23 are confusing. Ex.P22 and P23 are also issued by the employer. Ex.P22 is the appointment order which is similar to Ex.P13. The same reveal that the claimant was appointed as Supervisor for Electrical and Maintenance and his salary was Rs.9,000/- per month. As aforementioned, -8- the accident has occurred on 23.2.2008, while the claimant was still under probationary period inasmuch as probationary period was for one year. The annual returns relating to PF amount for the year 2007-08 pertaining to GD India Private Limited are at Ex.P23. The name of the claimant finds place at Sl.No.28. The same discloses the contribution in respect of employees, including claimant from 1.4.2007 to 31.3.2008. Ex.P24 reveals that the claimant has contributed Rs.4,677/- towards provident fund. The wages and dearness allowance which the claimant got during the said period was Rs.38,989/-. Net pay of the claimant for the month of December 2007 was Rs.7936/-and for the month of January, 2008 his net salary was Rs.8038/-. Therefore there was no scope for confusion at all inasmuch as the gross salary was not the subject matter of those documents. We are of the considered opinion that the claimant was an -9- employee of GD India Private Limited and was getting gross salary of Rs.9,000/- and net salary of Rs.8,000/- per month.
Be that as it may, having regard to the aforementioned amounts, after making compulsory deductions we quantify the monthly income of the claimant at Rs.7,500/- per month for the purposes of quantifying compensation. 30% needs to be added towards future prospects as per the settled law. The appropriate multiplier to be adopted is '14'.
6. PW.4 is the doctor who treated and examined the claimant. The medical records make it amply clear that due to the accident that occurred at about 10.30 p.m. on 23.2.2008, the claimant had lost consciousness since the time of accident. He was admitted to Sagar Apollo Hospital and thereafter he
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was shifted to NIMHNAS with GCS of E2M4V1 where the patient was incubated and sent to St.Johns Medical College and Hospital where he underwent CT scan. The claimant was referred to for occupational therapy to improve cognitive function. At the time of admission his memory was poor, however attention and concentration was good. He was able to do simple calculations and able to handle money but needed lot of care. He was able to remember only two step activities. However, he was able to perform simple calculations except division.
7. PW.4, the doctor who treated and examined the claimant is having a Post Graduage Degree in Physical Medicine and Rehabilitation from Madras Medical College. She was Associate Professor in St. Johns Medical College. She treated the claimant along with a team of medical professionals. She has deposed that the claimant was inpatient in St.Johns
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Medical College Hospital from 23.2.2008 to 18.4.2008 and he was under the care and treatment of Department of Neurosurgery and Department of Surgery from 23.2.2008 to 13.3.2008 and later shifted to Department of Rehabilitation on 13.3.2008 for treatment and for rehabilitation. The Doctor has also deposed that the claimant has undergone management for brain injury with intravenous antibiotics edema measures and anti-seizure medications and amputation of 2nd, 3rd digits of the left foot. The claimant when admitted was with GCS of E2M4V1 (8/15) as compared to a normal of E4M6V5 (15/15), which means poor level of consciousness and severe brain injury. He was on tracheotomy tube which was progressively corked and he was subsequently decannulated. As a result of injuries, he had uncontrollable anger and became agitated, aggressive and had been showing gestures of harm
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towards relatives and also diagnosed to have late insomnia. After his intake was improved, he was weaned off, the nasagastric tube and regular dressings were done for surgical wound over left foot. He was referred to for rehabilitation of occupational therapy to improve cognitive function. His memory was poor and attention and concentration was good. He was able to do simple calculations and to handle money but needed lot of care. Recommendations have been made for his cognitive functions meaning home exercise and activities to improve. He was able to remember only two step activities, and perform simple calculations except division.
Again the claimant was examined by PW.4 in Outpatient Department on 1.1.2009 on which day, he had come for follow up treatment as advised. She has further deposed that it was unlikely for him to resume work since cognitive improvement (mental faculty)
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was not optimum. The claimant had suffered permanent disability. After assessment the doctor has opined that the claimant was not able to handle the responsibility of electrical maintenance especially in an industry and he was unfit to go back to his job of electrical maintenance. On 1.1.2009, the claimant was able to identify basic shapes and sizes. He had shown the signs of difficulty in advanced thinking operations like categorization and pictorial sequencing. He had poor motivation for performing new tasks, instrumental activities of daily living, handling money, using machinery or equipment. The claimant had also mild weakness in his left upper limb and impairments in balance and co-ordination.
8. From the aforementioned, it is amply clear that the claimant has suffered serious brain injury and he is not able to do daily activities and it is not possible for him to do his regular work of supervision
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in the industry. In this view of the matter, the claimant will have to be dependent on the third parties or the family members all through his life. He will have to be continued on medical treatment all through his life. He is not able to enjoy his future life also as normal man. Consequently, his family members will also have to suffer. In addition to said serious injury, the claimant has also suffered amputation of 2nd and 3rd digits of left foot. He has to limp all through his life as deposed by the doctor.
Based on the aforementioned facts and figures, the claimant is entitled to Rs.13,10,400/- under the head of loss of future income. In addition to the same, the claimant is entitled to Rs.2,00,000/- towards pain and suffering, inasmuch as he must have suffered lot of pain at the time of treatment, and also he will have to suffer all through his life. Hence, the claimant is entitled to Rs.2,00,000/- towards loss of
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amenities inasmuch as he has suffered 80% of disability of the whole body. The claimant shall be awarded Rs.25,000/- under the head of attendant charges, food and nourishment.
The compensation awarded by the Tribunal under the head of medical expenses is just and proper, and therefore, no interference is called for. However, Rs.1,00,000/- is to be awarded towards future medical expenses, inasmuch as he has to be in continuous medical treatment through out his life. Thus, in all, the claimant is entitled to Rs.19,70,386/-. Accordingly, the following order is made:-
The amount of compensation is enhanced to Rs.19,70,386/- from Rs.9,60,000/-. Thus, the amount of compensation is enhanced by Rs.10,10,386/- (Rupees ten lakhs ten thousand three hundred and eighty-six only).
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The rate of interest and deposit of amount in the Nationalized Bank shall remain as directed by the Tribunal.
The amount in deposit if any, shall be transmitted to the Tribunal below.
MFA.No.6302/2009 is dismissed. MFA.No.6999/2009 is partly allowed.
Sd/-
JUDGE Sd/-
JUDGE *ck/-