Karnataka High Court
United Insurance Co Ltd vs Sri Devaraju on 21 September, 2022
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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MFA No. 3477 of 2012
C/W MFA No. 10889 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
MISCELLANEOUS FIRST APPEAL NO. 3477 OF 2012 (MV-)
C/W
MISCELLANEOUS FIRST APPEAL NO. 10889 OF 2011
IN M.F.A. NO.3477/2012
BETWEEN:
SRI.DEVARAJU
S/O LATE KANCHEEHULLUREGOWDA
AGED ABOUT 36 YEARS,
R/A MYLANAYAKANA HOSAHALLI VILLAGE,
DODDA MALUR POST & HOBLI,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT
...APPELLANT
(BY SRI. K.SHANTHARAJ, ADVOCATE)
AND:
Digitally 1. SMT.RATNA
signed by
PANKAJA S W/O VENKATESHU
Location: AGE-MAJOR,
High Court R/A NO.2203/A, MEDER BLOCK,
of Karnataka IST CROSS, BAMBOO BAZAR,
MYSORE-570 024
2. THE UNITED INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
REP BY MANAGER
SHANKARANARAYANA BUILDING,M.G.ROAD,
BANGALORE-560 001
...RESPONDENTS
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MFA No. 3477 of 2012
C/W MFA No. 10889 of 2011
(BY SRI. JANARDHAN REDDY, ADVOCATE FOR R2
V/O/D 9.4.2014, NOTICE TO R1 IS DISPENSED WITH)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.03.2011 PASSED IN MVC
NO.157/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR.DN), MACT, RAMANAGARA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
IN M.F.A. NO.10889/2011
BETWEEN:
UNITED INSURANCE CO. LTD.,
DIVISIONAL OFFICE,
THROUGH REGIONAL OFFICE
5TH AND 6TH FLOORS
KRISHIBHAVAN, HUDSON CIRCLE
BANGALORE-560 001
REP. BY ITS DEPUTY MANAGER
...APPELLANT
(BY SRI. JANARDHAN REDDY, ADVOCATE)
AND:
1. SRI.DEVARAJU
S/O LATE KANCHEEHULLUREGOWDA
AGED ABOUT 36 YEARS,
R/A MYLANAYAKANA HOSAHALLI VILLAGE,
DODDA MALUR POST & HOBLI,
CHANNAPATNA TALUK,
RAMANAGARA DISTRICT
2. SNT.RANTHAN
MAJOR IN AGE
W/O SRI VENKATESHU
R/AT NO.2203/A, MEDAR BLOCK
1ST CORSS, BABBU BAZAR
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MFA No. 3477 of 2012
C/W MFA No. 10889 of 2011
MYSORE DISTRICT
...RESPONDENTS
(BY SRI.SHANTHARAJ, ADVOCATE FOR R1
SRI N.THEJESH, ADVOCATE FOR R2)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 31.03.2011 PASSED IN MVC
NO.157/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
(SR. DN), MACT, RAMANAGARA, AWARDING A COMPENSATION
OF RS.4,78,684/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. MFA.No.3477/2012 is by the claimant seeking for enhancement of compensation.
2. MFA.No.10889/2011 is by the Insurer contending that the claimant was actually riding the motorcycle and was under the influence of alcohol. This allegation has not been established by the Insurer with cogent evidence. In fact, the police records indicate that the motorcycle in question was being driven by another person, who had been charge sheeted.
3. In the absence of any proof that the injured/claimant was driving the motorcycle, the fact as to whether he consumed -4- MFA No. 3477 of 2012 C/W MFA No. 10889 of 2011 alcohol or not, would be irrelevant. The appeal of the Insurer is, therefore, dismissed.
4. As far as compensation is concerned, the Tribunal has awarded the following sums:
Sl. Amount
Particulars
No. in (Rs.)
Medical expenses, food, nourishment
1. 2,85,000/-
and incidental expenses
2. Loss of income during laid up period 4,500/-
3. Loss of future earning 1,49,184/-
4. Pain and suffering 30,000/-
5. Loss of amenities 10,000/-
Total 4,78,684/-
5. In order to arrive at the above mentioned sums, the Tribunal has accepted the disability at 25.09% as opined by the Doctor and has determined the notional income of the injured at Rs.3,000/-.
6. Learned counsel for the claimant strenuously contends that this is a case in which the disability will have to be assessed at 100%. He highlights the fact that the claimant had suffered disfigurement in his private part area and also suffered -5- MFA No. 3477 of 2012 C/W MFA No. 10889 of 2011 impotency, as a result of the accident and the claimant also had a restricted movement at his right hip and left knee and therefore, it would be appropriate to assess the disability at 100%.
7. He also submits that the notional income determined by the Tribunal was on the lower side and the sums awarded towards pain and sufferings and loss of amenities were meagre.
8. He also contends that the Doctor had opined that the disability and disfigurement suffered by the claimant could be improved by separate surgical procedure which may involve expenditure of Rs.6,00,000/- and this has not at all been considered by the Tribunal.
9. Learned counsel for the Insurer, on the other hand, contends that the sums awarded by the Tribunal cannot be found fault with and deserves to be affirmed.
10. The Doctor, who treated the claimant, has stated that the claimant had suffered the following injuries:
a) "Head Injury- GCS being 12/15 -6- MFA No. 3477 of 2012 C/W MFA No. 10889 of 2011 b) Cut lacerated wound 7 x 2 CM left foot. c) Sutured wound left thigh 10-15 CM with necrosed skin posteriomedially d) Severe lacerated wound right ingunial region with skin loss and exposing vessels. e) CLW 3 x2 Cm over anterior abdominal wall. f) CLW left elbow with exposed tendons g) Pelvis compression-Distraction test Possitive"
11. He has also stated that thereafter the claimant underwent a surgery on 24.01.2008 and was discharged on 04.02.2008. He ultimately has stated that the claimant was seen by him on 31.12.2008 with the following complaints:
1) "Pain on and off in both hips
2) Pain on and off in public bone
3) Disfigured private part area and left thigh
4) Impotency
5) Restricted movements at right hip and left knee.
6) Not able to stand for long duration not able to sit cross
leg. Difficulty in using stairs."
The Doctor ultimately has stated that the claimant's disability of the lower limb was 75.29% and the whole disability was 25.09%. In my view, as the Tribunal has taken the whole body -7- MFA No. 3477 of 2012 C/W MFA No. 10889 of 2011 disability at 25.09% as assessed by the Doctor, the same is affirmed.
12. The argument of the learned counsel for the claimant that by virtue of the fact that the claimant had become impotent, disability would have to be taken at 100% cannot be accepted. It is to be stated here that the disability assessed is for the purpose of determining probable loss of earning capacity. A person's impotency would have no relation to his ability to earn income. This argument is, therefore, rejected.
13. The Tribunal has determined the notional income of the claimant at Rs.3,000/- since there was no evidence to establish his actual income. In such cases, it would be appropriate and prudent to adopt the notional income determined by the Karnataka State Legal Services Authority, which, for the accident of the year 2008, would be Rs.4,500/-
14. Since the claimant has suffered disability at 25.09%, the future prospects of 40% requires to be added to the notional income, in the light of the judgment of the Division Bench of this Court in the case of NEW INDIA ASSURANCE COMPANY -8- MFA No. 3477 of 2012 C/W MFA No. 10889 of 2011 LIMITED Vs. ABDUL & OTHERS passed in MFA.No.103807/2016 & connected matters disposed of on 27.05.2022. Thus, the income of the claimant would be Rs.6,300/- (Rs.4,500 + 40%). The claimant being aged 32 years, a multiplier of 16 has to be applied and towards loss of future income, the claimant would be entitled to Rs.3,03,488.64/- (Rs.6,300 X 12 X 16 X 25.09%) rounded off to Rs.3,03,500/-.
15. The Tribunal has awarded a sum of Rs.4,500/- towards loss of income during the laid up period. In my view, having regard to the fact that the claimant was hospitalised for 21 days, it would be appropriate to take the laid up period as 4 months and since the income has been determined at Rs.4,500/-, the claimant would be entitled to Rs.18,000/- (Rs.4,500/- X 4) under the said head.
16. The Tribunal has awarded a sum of Rs.2,85,000/- towards medical expenses, food, nourishment, conveyance and attendant charges. Since the evidence on record indicates that the claimant had actually spent Rs.2,65,000/- towards medical expenses, the same is affirmed and since he was -9- MFA No. 3477 of 2012 C/W MFA No. 10889 of 2011 hospitalised for 21 days, it would be appropriate to award a sum of Rs.25,000/- towards food, nourishment, conveyance and attendant charges.
17. The Tribunal has awarded a sum of Rs.30,000/- towards pain and suffering. Having regard to the injuries suffered by the claimant, it would be appropriate to enhance to said sum to Rs.75,000/-.
18. The Tribunal has awarded a sum of Rs.10,000/- towards loss of amenities. Having regard to the permanent disability suffered by the claimant at 25.09%, it would be appropriate to award a sum of Rs.75,000/- towards loss of amenities.
19. As a result of the accident, since it is stated by the Doctor that the claimant has become impotent, the claimant would also be entitled to a sum of Rs.1,00,000/- towards loss of marital prospects.
20. Learned counsel for the claimant contends that the Doctor had opined that a further sum of Rs.6,00,000/- would be required for future medical expenses and the Tribunal ought to have granted the reasonable sums.
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MFA No. 3477 of 2012C/W MFA No. 10889 of 2011
21. The Doctor, who was examined, has stated that the condition of the claimant could be improved by multiple sittings of surgical procedure which could involve an expenditure of Rs.6,00,000/-. This evidence was given in the month of January, 2011. There is no evidence produced before this Court to establish that the claimant spent any sums towards improvement of his disfigurement. Therefore, the claimant would not be entitled to any sums towards future medical expenses.
22. Consequently, in modification of the award of the Tribunal, as against Rs.4,78,684/-, the claimant would be entitled to the following sums as compensation along with interest at 6% p.a. from the date of petition till its realisation:
Sl. Amount
Particulars
No. in (Rs.)
1. Medical expenses 2,65,000/-
Food, nourishment, conveyance and
2. 25,000/-
attendant charges
3. Loss of income during laid up period 18,000/-
4. Loss of future earning 3,03,500/-
5. Pain and suffering 75,000/-
6. Loss of amenities 75,000/-
7. Loss of marital prospects 1,00,000/-
Total 8,61,500/-
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MFA No. 3477 of 2012
C/W MFA No. 10889 of 2011
23. The Insurer is directed to deposit the amount of compensation awarded within a period of eight weeks from the date of receipt of a certified copy of this judgment.
24. The amount in deposit, if any, shall be transferred to the Tribunal for disbursement in terms of the award.
The appeal of the claimant is accordingly allowed in part.
SD/-
JUDGE PKS CT:AN List No.: 2 Sl No.: 4