Karnataka High Court
The United India Insurance Co Ltd vs Sri G S Anoop Kumar on 27 November, 2012
Bench: N.K.Patil, B.S.Indrakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27th DAY OF NOVEMBER, 2012
: PRESENT :
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE B.S. INDRAKALA
M.F.A.NO.10894 OF 2008 (MV)
C/W
M.F.A.CROB.NO.66 OF 2009
MFA NO.10894 OF 2008
BETWEEN:
THE UNITED INDIA INSURANCE CO. LTD.,
NO.40, LAKSHMI COMPLEX
1ST FLOOR, CHICKPET BRANCH
K.R. ROAD,
BANGALORE-2
REPRESENTED BY ITS
THE DEPUTY MANAGER
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE
NO.25, SHANKARANARAYANA BUILDING
M.G. ROAD
BANGALORE-560 001.
... APPELLANT
(By Sri:M.U. POONACHA, ADV.,)
AND
1. SRI. G.S. ANOOP KUMAR
S/O. G.H. SHANKARAPPA
2
SINCE DECEASED BY LRS
1A. SMT. ANJANA ANOOP KUMAR
W/O. LATE C.S. ANOOP KUMAR
AGED 36 YEARS
1B. KUM. ADITI GUBBI ANNOP KUMAR
D/O. LATE C.S. ANOOP KUMAR
AGED 11 YEARS
AMENDED
1C. KUM. SUMA GUBBI ANNOP KUMAR AS PER
D/O. LATE C.S. ANOOP KUMAR COURT
AGED 9 YEARS ORDER
DTD 21.10.11
1D. DANUSH GUBBI ANOOP KUMAR
S/O. LATE C.S. ANOOP KUMAR
AGED 7 YEARS
ALL ARE R/AT NO.'ATITHI', 6TH CROSS
VIDYANAGARA
TUMKUR.
2. SRI. FIRIZ BAIG
S/O. FATHA BAIG SAB
AGED ABOUT 52 YEARS
R/AT HUCHHAPPA COMPOUND
M.S. TEMPLE ROAD
P.H. COLONY
TUMKUR. ... RESPONDENTS
(By Sri:PRUTHVI WODEYAR, FOR M/S. JAYAKUMAR S.
PATIL ASSTS, ADV., FOR R1(A-D)
R1(B-D) ARE MINORS REP BY R1(A)
R2 SERVED, UNREPRESENTED
-------
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:08.07.2008 PASSED
IN MVC NO.55/2003 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT NO.V & ADDITIONAL MACT,
TUMKUR, AWARDING A COMPENSATION OF
RS.19,86,000/- WITH INTEREST @ 6% P.A. ON
3
RS.5,76,000/- FROM THE DATE OF PETITION TILL
DEPOSIT.
MFA. CROB.NO.66 OF 2009
BETWEEN
SRI. G.S. ANOOP KUMAR
S/O. G.H. SHANKARAPPA
SINCE DECEASED BY LRS
1A. SMT. ANJANA ANOOP KUMAR
W/O. LATE C.S. ANOOP KUMAR
AGED 36 YEARS
1B. KUM. ADITI GUBBI ANNOP KUMAR
D/O. LATE C.S. ANOOP KUMAR
AGED 11 YEARS
AMENDED
1C. KUM. SUMA GUBBI ANNOP KUMAR AS PER
D/O. LATE C.S. ANOOP KUMAR COURT
AGED 9 YEARS ORDER
DTD 21.10.11
1D. DANUSH GUBBI ANOOP KUMAR
S/O. LATE C.S. ANOOP KUMAR
AGED 7 YEARS
ALL ARE R/AT NO.'ATITHI', 6TH CROSS
VIDYANAGARA
TUMKUR. ... CROSS OBJECTORS
(By Sri:PRUTHVI WODEYAR, FOR JAYAKUMAR S.
PATIL ASSTS, ADV.,)
AND:-
1. FIRIZ BAIG
S/O. FATHA BAIG SAB
AGED ABOUT 53 YEARS
R/O. HICHHAPPA COMPOUND
M.S.TEMPLE ROAD
P.H. COLONY
TUMKUR.
2. THE UNITED INDIA INSURANCE CO.,
4
NO.40, LAKSHMI COMPLEX
1ST FLOOR, CHICKPET BRANCH
K.R. ROAD,
BANGALORE-560 002
REPRESENTED BY ITS
DEPUTY MANAGER --RESPONDENTS
(BY SRI: M.U. POONACHA, ADV., FOR R2
NOTICE TO R1 DISPENSED WITH VIDE COURT
ORDER DATED 21.10.2012)
------
THIS MFA.CROB, IN MFA NO.10894/2008 IS FILED
UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE
JUDGMENT AND AWARD DATED 08.07.2008 PASSED IN
MVC NO.55/2003 ON THE FILE OF PRESIDING OFFICER,
FAST TRACK COURT-V & ADDITIONAL MACT, TUMKUR,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MFA AND MFA.CROB COMING ON FOR
HEARING THIS DAY, N.K. PATIL. J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appeal and the cross objection respectively filed by the insurer and the cross objector arise out of the same judgment and award dated 08.07.2008 passed in MVC No.55/2003 on the file of the Presiding Officer, Fast Track Court-V & Addl. Motor Accident Claims Tribunal, Tumkur (for short, 5 'Tribunal'). The Tribunal by its impugned judgment and award, awarded compensation of `19,86,000/- with interest at 6% p.a. from the date of petition till the date of realisation, on account of injuries sustained by the claimant-represented by legal representatives(claimant expired during the pendency of the appeal) in the road traffic accident. On the ground that the quantum of compensation awarded by the Tribunal is on the higher side and is liable to be reduced, the insurer has filed the appeal and the cross objectors contending that the quantum of compensation awarded by the Tribunal is inadequate and requires enhancement have presented the cross objection.
2. The brief facts of the case are that:-
Deceased original cross objector Mr. G.S. Anoop Kumar, represented by legal representatives had filed a claim petition under Section 166 of the M.V. Act 6 contending that he was aged about 33 years and hale and healthy prior to the accident. He was a businessman getting income of more than `11,000/- per month. When, things stood thus, at 11.00 a.m. on 17.8.2002, the injured claimant met with an accident near Antharasanahalli by-pass on Tumkur-Madhugiri road. He contended that due to rash & negligent driving by the driver of the lorry, he sustained grievous injuries viz., Extensive de-glowing injury from lower 1/3rd of the left leg, head pad missing partially, bones of both ankles exposed, muscles and tendon exposed, contamination and bleeding(+), tingling and numbness of left foot(+), OPA Foll PTA, Vascularity double left foot, SP02 not recording properly. There are totally nine injuries, out of which eight injuries are grievous in nature, one is simple in nature and there is amputation of left leg below the knee. The Doctor has assessed the disability at 60% to the left lower limb and 32%-34% to the whole body. 7
It is further case of the cross objectors who are the legal representatives of the injured claimant, who died during the pendency of the appeal that the injured claimant had undergone treatment for a period of 17 days and also surgery. He spent reasonable amount towards 'conveyance, nourishing food' and towards 'medical expenses'. On account of the injuries, he was not in a position to do his rice business as effectively as was being done by him earlier. He could not sit continuously except giving instructions. He could not monitor and follow up the business effectively. The injuries had affected severally and it had affected his matrimonial life also. He has spent substantial amount towards artificial limb. Taking all these relevant factors, he filed claim petition under Section 166 of the M.V. Act. To substantiate his defence in his claim petition, the claimant examined himself as PW- 1 and examined PWs-2 and 3 and marked the documentary evidence-Exs-P1 to P24, whereas, the 8 appellant Insurer has produced Ex-R1-Disability Assessment report. The Tribunal after due appreciation of the oral and documentary evidence, has taken note of the disability and assessed the income of the claimant at `5,000/- p.m. and awarded compensation under different heads towards injury, pain and suffering `1.00 lakh, Medical expenses- `3.00 lakhs, attendant charges `8,000/-, conveyance expenses `8,000/-, loss of income during laid up period `60,000/-, discomfort `1.00 lakh, loss of amenities `3.00 lakhs, loss of future income `9,60,000/-, expenses towards tentative Artificial limb `1,50,000/-/future medical expenses and loss of marriage prospects `1.00 lakh. In all, the claimant- now deceased was awarded compensation of `19,86,000/- with 6% interest p.a. from the date of petition till the date of realization. Being dis-satisfied with the impugned judgment and award, insurer and 9 the cross objectors have presented the appeal and the cross objection respectively.
4. The submission of the learned counsel appearing for the insurer at the outset is that the Tribunal has committed error and irregularity resulting in mis-carriage of justice by awarding disproportionate compensation amount towards loss of amenities, disability, discomfort, unhappiness and future income. Further, he submitted that the Tribunal also has erred in awarding a sum of `1.00 lakh towards loss of marriage prospects as the claimant was already married. He vehemently submits that without any justification and regard to the evidence of the Doctors-PW-2 and 3, assessing the disability of the claimant at 100% cannot be sustained. It is no doubt true that there is amputation of left leg below the knee, but it would not be of 100% and at least, it can be taken at 50% but not more than 60%. Taking disability at 100% is contrary to the 10 evidence of the Doctors. To further substantiate his contention, learned counsel for the Insurer has taken us through the evidence of the Doctor. As per the evidence of PW-2 Doctor, the claimant has no difficulty to carry out his business by sitting. So also, the claimant had deposed that one can sit and carry out the rice business and one can book the orders with the wholesale dealers or the rice mill by contacting over the telephone and settle the transaction. This itself goes to show that there is no total closure of the business of the deceased on account of amputation below the knee. With this evidence of the Doctor, there is no justification in assessing the permanent disability at the rate of 100% by the Tribunal and it cannot be sustained on presumption and assumption. Therefore, he submits that the impugned judgment and award is liable to be modified by reducing substantially the award passed 11 towards loss of amenities at `3.00 lakhs, loss of future income `9,60,000/-.
5. Per-contra, learned counsel appearing for the cross-objectors inter-alia submitted that the claimant-
now deceased was aged about 31 years, a businessman doing rice business. He was hale and healthy prior to the accident and the Tribunal has erred in taking the income of the claimant/ now deceased at only `5,000/- p.m. contrary to the income-tax returns filed by the claimant. The claimant was earning more than `11,000/-per month and the Tribunal ought to have assessed reasonable income of the claimant/now deceased who is represented by legal representatives as the deceased claimant had undergone treatment and surgery, amputation of left lower limb below the knee and also sustained grievous injuries such as Extensive de- glowing injury from lower 1/3rd of the left leg, head pad missing partially, bones of both ankles exposed, 12 muscles and tendon exposed, contamination and bleeding(+), tingling and numbness of left foot(+), OPA Foll PTA, Vascularity double left foot, SP02 not recording properly and it has affected his matrimonial life seriously and they have been deprived of sexual life because of amputation of leg below knee and the disability sustained by him. He further submitted that the Tribunal has committed error in not awarding compensation towards 'loss of estate', 'loss of love and affection' and he prays for awarding just and reasonable compensation.
6. After careful consideration of the submissions made by both the parties, after evaluation of the material on record threadbare and after perusal of the impugned judgment and award passed by the Tribunal, what emerges is that the occurance of accident and resultant injuries sustained in road traffic accident are not in dispute. Further, it is not in dispute that the deceased, represented by legal 13 represented-cross objectors, was aged about 31 years was doing the whole sale business of rice. He was hale and healthy prior to the accident. He had filed returns for the assessment years 1999-2000, 2000-2001 showing his net income at `11,000/- per month and he was holding licence for the same. But the claimant has failed to produce necessary credible documents to show that on account of injuries sustained, his business is diminished and there is loss in his business. On the other hand, as contended by learned counsel appearing for the insurer, the injured claimant could have done business. There was no deprivation to continue his wholesale business. He can contact over telephone and with the assistance he can continue his business. However, the Tribunal after appreciating the oral and documentary evidence and other material is justified in awarding just and reasonable compensation towards 'medical expenses', 'future medical expenses-artificial limb', which does 14 not call for interference. Further, the Tribunal is also justified in awarding compensation towards discomfort caused to the claimant-now deceased to discharge his matrimonial obligation, as the disability caused to the claimant-deceased had infact affected his marital life and performing his marital obligations.
7. During the course of submissions, learned counsel for both the parties submit that when the appeal was pending adjudication before this Court, injured claimant died on 7.2.2011 and the insurance company has filed necessary application for bringing the legal representatives of the deceased claimant on record. In view of death of the injured claimant, the submission made by the learned counsel appearing for the cross objectors-legal representatives that they are entitled to enhancement of compensation cannot be sustained. The Tribunal after appreciating the oral and documentary evidence. As discussed above and in view of catena of decisions rendered by the Apex 15 Court, the appeal filed by the Insurer and the cross objection filed by the cross objectors are dismissed as devoid of merit.
Ordered accordingly.
Amount in deposit shall be transmitted to the jurisdictional Tribunal immediately.
Office to draw the award accordingly.
Sd/-
JUDGE Sd/-
JUDGE *mn/-