Karnataka High Court
Vittal S Dandapur vs The New India Assurance Company Ltd on 15 June, 2020
Bench: B.V.Nagarathna, Ravi V Hosmani
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
M.F.A. NO. 2450 OF 2018(MV-I)
BETWEEN:
VITTAL S DANDAPUR
S/O SHIVA NAIK,
AGED ABOUT 25 YEARS,
R/AT HUNASHYAL AT POST,
GOKAK TALUK,
BELGAUM DISTRICT, PIN - 591 307.
...APPELLANT
(BY SRI . SHANTHARAJ K, ADVOCATE)
AND:
1. THE NEW INDIA ASSURANCE
COMPANY LTD.,
REPRESENTED BY ITS
REGIONAL MANAGER,
REGIONAL OFFICE, NO.9/2, 2ND FLOOR,
MAHALAKSHMI CHAMBERS,
BENGALURU- 560 001.
2. M/S. KAPOOR DIESELS
GARAGE PRIVATE LIMITED
NO.18/19, TRANSPORT NAGAR,
BILWARA, RAJASTHAN-311 001 ...RESPONDENTS
(BY SRI . P.B. RAJU ADVOCATE FOR R1
V/O DATED 19/06/2018, NOTICE TO R2 IS D/WITH)
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THIS MFA IS FILED U/S 173(1) OF MV ACT WITH A PRAYER TO
SET ASIDE THE JUDGEMENT AND AWARD DATED 23.12.2016 PASSED
IN MVC NO.82/2016 ON THE FILE OF STHE XXI ADDITIONAL SMALL
CAUSES JUDGE & XIX ACMM MEMBER-MACT, BENGALURU(SCCH - 23)
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHACEMENT OF COMPENSATION.
THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY, RAVI V.
HOSMANI J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with consent of learned counsel appearing on both sides, it is heard finally.
2. This appeal has been filed by the claimant/appellant under Section 173(1) of the Motor Vehicles Act, (hereinafter referred to as the 'Act' for short) seeking enhancement of compensation awarded under the impugned judgment and award dated 23.12.2016 in MVC No.82/2016 passed by XXI Additional Small Causes Judge and the Motor Accident Claims Tribunal, Bengaluru City (SCCH-23) (hereinafter referred to as "Claims Tribunal").
3. The brief facts leading to filing of the above appeal are that on 16.10.2015 one Vittal S Dandapur was driving his car bearing registration No. KA-05-AC-5468 on MES ring road near 3 railway gate at Bengaluru at about 00.45 a.m. At that time, the driver of lorry bearing registration No. RJ-6-GA-7195, who was also proceeding on the same road, suddenly took a right turn without giving any indication and dashed against the claimant's car. The police after investigation filed charge sheet against the driver of the lorry. As a result of the accident, the claimant sustained severe injuries to his spinal cord. He was shifted to MVJ hospital and took treatment as an inpatient for more than two months. However, he suffered permanent physical disability and was unable to do any work. Claiming compensation for the loss of earning suffered by him, he filed M.V.C.No.82/2016 seeking compensation of Rs.80,00,000/- from the owner and insurer of the offending lorry.
4. After notice, respondent No.1- insurer entered appearance through its counsel and filed written statement. But respondent No.2 remained absent and was placed ex-parte. The insurer opposed the claim petition not only on the ground that the compensation claimed is excessive and exorbitant but also on the ground of contributory negligence on the part of the 4 claimant himself. It was also contended that the driver of the offending vehicle was not holding an effective and valid driving license at the time of the accident. It also denied the age, occupation, income and the manner of the accident.
5. On the basis of the rival pleadings, the Claims Tribunal, framed the following issues for its consideration:
i) Whether the petitioner proves that on 16.10.2015 at about 0.45a.m. near Railway gate, MES ring road, Bangalore, at that time, the driver of lorry bearing reg.No.RJ-06-GA-7195 drove in a rash and negligent manner and dashed against the petitioner's car bearing registration No.KA-05-AC-5486 and due to which he fell down and sustained grievous injuries?
ii) Whether the petitioner is entitled for compensation as claimed? If so, how much and from whom?
iii) What order or award?
6. In order to substantiate his case, the claimant examined himself as PW-1 and the Doctor, who treated him as PW-2 and documents Exhibits P.1 to P.17 were marked. On behalf of the respondent No.1, two witnesses were examined as R.W.1 and R.W.2 and documents Exhibits R.1 to R3 were marked.
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7. On the basis of the evidence on record, the Claims Tribunal answered issue No.1 in the affirmative and the claimant is held to have contributed his negligence to an extent of 25% in causing the accident; issue No.2 as the petitioner being entitled to compensation of Rs.13,92,750/- from the first respondent with 6% per annum interest on the said amount from the date of petition till deposit of amount before the Court; Issue No.3 as per final order.
8. Assailing the award on the quantum of compensation awarded as well as on the aspect of negligence, the claimant is in appeal.
9. Learned counsel for the claimant/appellant contended that as per the decision of the Hon'ble Supreme Court in "MUKUND DEWANGAN VS. ORIENTAL INSURANCE COMPANY LIMITED" reported in "(2017) 14 SCC 663", possession of a transport endorsement for driving a commercial vehicle with an unladen weight of less than 7500 kgs. by a driver having LMV licence is not necessary. Besides, looking to the manner of the accident, the lapse on the part of the claimant to 6 display 'L' board was irrelevant. Hence, the apportionment of 25% of contributory negligence on the claimant was unjustified and the entire negligence in causing the accident should be held in favour of the driver of the lorry.
10. On the quantum of compensation, it was contended that the claimant had sustained severe injuries to the spinal cord and was suffering from paraplegia and therefore, there was total loss of earning capacity. It was further submitted that the claimant was totally bed-ridden and in fact, required to be looked after by an attendant. Therefore adequate compensation towards attendant charges is also required to be awarded. Even the monthly income of the claimant, who was a driver, aged 23 years, was also required to be scaled up adequately from Rs.6,500/- per month which was considered by the Claims Tribunal. It was further submitted that the sum of Rs.50,000/- awarded towards loss of amenities and Rs.50,000/- towards food, conveyance etc., was grossly inadequate. 7
11. On the other hand, learned counsel for the respondent insurer sought to justify the award and opposed any enhancement of the compensation.
12. Having heard learned counsel appearing for both parties and on perusal of the record, the following points would arise for our consideration in this appeal:-
i) Whether the Tribunal was justified in apportioning 25% negligence on the claimant for causing the accident?
ii) Whether the quantum of compensation awarded by the Tribunal calls for any enhancement?
iii) What order?
13. In the instant case, the insurer has not preferred any appeal against the award of the Claims Tribunal. On the other hand, the claimant has filed this appeal challenging the apportionment of negligence and seeking for enhancement of the compensation. Therefore, the occurrence of the accident on 16.10.2015 at 00.45 hours on MES ring road near railway gate, Bengaluru between the car bearing registration NO.KA-05-AC- 5486, driven by the claimant and the lorry bearing registration No.RJ-6-GA-7195 is not in dispute. It is also not in dispute that 8 the claimant- Vittal S Dandapur sustained permanent disability on account of the accident. In view of the contentions urged, whether there was any negligence on the part of the claimant in causing the accident and whether he is entitled for higher compensation are required to be decided in this appeal.
14. In the instant case, it is seen from the records that, the accident occurred when the lorry took a sudden right turn without giving any indication and dashed against the claimant's car. The police have registered the case against driver of the lorry and filed charge-sheet against him for rash and negligent driving and causing the accident. Such being the case, the nature of the licence held by the victim or the fact that he did not display 'L' board would be wholly irrelevant. Hence, the apportionment of the contributory negligence on the claimant by the Claims Tribunal is set aside. Accordingly, the point No.(i) framed is answered in the negative and it is held that the entire negligence for causing the accident is on the driver of the lorry bearing registration No. RJ-06-GA-7195.
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15. In the said accident, the claimant sustained complete loss of motor power and sensation in both the lower limbs. It is a case of paraplegia with disturbed bowel and bladder habits. He has taken inpatient treatment from 16.10.2015 to 23.12.2015. During treatment partial screw fixation to his spinal cord was also done. Despite treatment the claimant is totally bed-ridden.
16. The Claims Tribunal has awarded a total sum of Rs.18,57,000/- on the following heads:
1 Pain and sufferings Rs. 1,00,000/-
2 Loss of future earnings Rs.14,04,000/- 3 Loss of happiness, discomfort, Rs. 50,000/- inconvenience 4 Loss of marriage prospects Rs. 75,000/- 5 Nutritious food, conveyance Rs. 50,000/- charges, I.C. 6 Attendant charges Rs. 50,000/-
7 Medical expense Rs. 1,28,000/-
Total Rs.18,57,000/-
17. Considering the same, we note the Claims Tribunal has awarded a sum of Rs.1,00,000/- towards pain and suffering, same appears to be just and proper and does not call for any enhancement.10
18. In the case on hand, the claimant has contended that he was working as a driver and earning more than Rs.15,000/- p.m. His driving licence is produced at Ex.P.10. The accident occurred on 16.10.2015. During the said period, even the earning of an unskilled coolie would not be less than Rs.9,000/- p.m. Considering the occupation of the claimant, a sum of Rs.12,000/- p.m. can safely be taken as the monthly income of the claimant notionally. As per the medical evidence on record, viz., Ex.P.8 -Discharge Summary, Ex.P.9 - Medical Bills, Ex.P.12 -Photos/CD, Ex.P.13 - OPD receipt, Ex.P.14 - X-
ray, Ex.P.16 - Outpatient record and Ex.P.17 - inpatient record coupled with the evidence of PW-2 - Dr. S.A. Somashekhar, it is noted that the claimant suffered severe injury to his spinal cord and despite treatment the fractures have not united and the petitioner has sustained complete loss of motor power and sensation in both his lower limbs. The hospital records also disclose that it is a case of paraplegia with disturbed bowel and bladder habits. Even as per the assessment of PW-2, the permanent physical disability of the claimant is 100%. Considering the same, the loss of earning capacity can be said to 11 be 100%. The claimant was aged 23 years on the date of accident. As per the decision in SARLA VARMA AND OTHERS VS. DELHI TRANSPORT CORPORATION AND ANOTHER reported in (2009) 6 SCC 121, affirmed in NATIONAL INSURANCE COMPANY LIMITED VS. PRANAY SETHI AND OTHERS reported in AIR 2017 SC 5157, the multiplier applicable would be 18. Thus, the loss of earning capacity would be Rs.12,000/- x 12 x 18 = Rs.25,92,000/-, which is awarded to the claimant.
19. The Claims Tribunal has awarded a sum of Rs.50,000/- towards loss of happiness, discomfort, inconvenience etc., (i.e., towards loss of amenities). Considering the fact that the claimant is rendered totally invalid and confined to bed, the compensation towards loss of amenities is required to be enhanced to Rs.3,00,000/-. It is relevant to refer to a decision of a Co-ordinate Bench of this Court, of which, one of us (Nagarathna J.) was a member, in M.F.A.No.2915/ 2017 disposed of on 29.01.2020. In the said case, this Court on an 12 examination paraplegia cases was also pleased to assess loss of amenities at Rs.3,00,000/-.
20. Though, the claimant has also sought for enhancement of compensation towards loss of marriage prospects, the award of Rs.75,000/- by the Claims Tribunal appears to be adequate, which is left undisturbed.
21. Insofar as the award of Rs.50,000/- towards food, conveyance and other incidental charges are concerned, it is seen that the claimant was an inpatient for about seventy one days. Considering the minimum expenses per day, the compensation under this head is enhanced to Rs.75,000/-.
22. Further for assessing the attendant charges, we take into account that the claimant is totally bed-ridden with disturbed bowel and bladder habits and he is required to be taken care of by an attendant, even if a reasonable sum of Rs.4,000/- p.m. is considered towards attendant charges, the award under this head will be Rs.4,000/- x 12 x 18 = Rs.8,64,000/-, which is awarded to the claimant. 13
23. Apart from the above, the Claims Tribunal has reimbursed the entire sum for which medical bills were produced towards medical expenses. Hence, the same is retained. Thus, the point no.(ii) is also answered in the affirmative and the claimant is held entitled for reassessed compensation of Rs.41,34,000/- instead of Rs.18,57,000/-. Thus, there is an enhancement of Rs.22,77,000/-. The same is tabulated as under:
1 Pain and sufferings Rs. 1,00,000/- 2 Loss of future earnings Rs.25,92,000/- 3 Loss of happiness, discomfort, Rs. 3,00,000/-
inconvenience 4 Loss of marriage prospects Rs. 75,000/- 5 Nutritious food, conveyance Rs. 75,000/-
charges, I.C. 6 Attendant charges Rs. 8,64,000/- 7 Medical expenses Rs. 1,28,000/-
Total Rs.41,34,000/-
24. In the result, we pass the following:
ORDER
The appeal is allowed in part.
i) The claimant is entitled for a total
compensation of Rs.41,34,000/- with interest at the rate of 6% per annum (excluding on the 14 attendant charges of Rs.8,64,000/-) from the date of filing of claim petition till the date of payment or deposit, whichever is earlier.
ii) On deposit, of the balance award amount by the insurer, the Claims Tribunal shall deposit 75% of the compensation in Fixed Deposit in the name of the claimant for an initial period of ten years in any Nationalised Bank or Post office earning highest interest, which shall be free from encumbrances. The claimant will be at liberty to withdraw interest periodically. Balance compensation shall be released to the claimant/appellant after due identification.
iii) The respondent insurer is directed to deposit the enhanced compensation within a period of six weeks from the date of receipt of a copy of this judgment.
Parties to bear their respective costs.
Sd/-
JUDGE Sd/-
JUDGE Psg*/BVK