Karnataka High Court
Saleem Ahmad Pasha S/O Late Khadar Pasha vs The Manager on 19 August, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF AUGUST, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
MISCELLANEOUS FIRST APPEAL NOs. 4492/2011&
4493/2011 (MV)
MFA No.4492/2011
BETWEEN:
Saleem Ahmad Pasha,
S/o late Khadar Pasha,
Aged about 48 years,
R/at No.5, Main Road,
J.C.Nagar, Munireddy Palya,
Bangalore-560 006. ... Appellant
(By Sri.Prakash M.H, Advocate)
AND:
1. The Manager,
ICICI Lombard General Insurance Co., Ltd.,
Regional Office, No.89,
2nd Floor, SVR Complex,
Hosur Main Road,
Madivala,
Bangalore-01.
2. Girish Madhukar Gavas,
Kaveri Nilaya,
C/o Nagesh Mall,
No.86/1, Bhuvaneshwari Nagar,
Attibele, Anekal,
2
Bangalore-82. ... Respondents
(By Sri.B.Pradeep, Advocate for R-1;
Notice issued to R-2 dispensed with)
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 20.1.2011
passed in MVC No.1840/08 on the file of the X Addl.
Judge & Member, MACT-16, Bangalore City, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
MFA No.4493/2011
BETWEEN:
Ismath Nousheen,
@ Nousheen
W/o Saleem Ahmad Pasha,
Aged about 36 years,
R/at No.5, Main Road,
J.C.Nagar, Munireddy Palya,
Bangalore-560 006. ... Appellant
(By Sri.Prakash M.H, Advocate)
AND:
1. The Manager,
ICICI Lombard General Insurance Co., Ltd.,
Regional Office, No.89,
2nd Floor, SVR Complex,
Hosur Main Road,
Madivala,
Bangalore-01.
2. Girish Madhukar Gavas,
Kaveri Nilaya,
3
C/o Nagesh Mall,
No.86/1, Bhuvaneshwari Nagar,
Attibele, Anekal,
Bangalore-82. ... Respondents
(By Sri.B.Pradeep, Advocate for R-1;
Notice issued to R-2 dispensed with)
This Appeal is filed Under Section 173(1) of MV
Act against the judgment & award dated 20.1.2011
passed in MVC No.1841/08 on the file of the X Addl.
Judge & Member, MACT, Bangalore City, partly allowing
the claim petition for compensation and seeking
enhancement of compensation.
These Appeals are coming on for hearing this day,
the Court delivered the following:
JUDGMENT
Claimants are in appeal seeking for enhancement of compensation not being satisfied with the award passed by MACT, Bangalore in MVC Nos.1840/2008 & 1841/2008 dated 20.01.2011.
2. Heard the arguments of Sri Prakash M H, learned Advocate appearing for appellants, Sri B Pradeep, learned advocate appearing for respondent-1. By order dated 18.04.2013 notice to respondent-2 has 4 been dispensed with in MFA No.4492/2011. Perused the judgment and award passed by Tribunal and also records secured from Tribunal.
3. Claimant in MVC No.1840/2008 is the husband of claimant in MVC No.1841/2008. Both of them were travelling on a motor cycle on 21.10.2007 at about 5.30 p.m. at Queen's road, Bangalore. A Tata Indica Car is stated to have dashed against them from hind side on account of which, both the claimants fell down and sustained injuries and they were shifted to Bowring & Lady Curzon Hospital, Bangalore and after being given first aid treatment, they were referred to Sanjay Gandhi Hospital, Bangalore.
4. On account of the injuries sustained and consequential disability suffered by them, they filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.12 lakhs & Rs.6 lakhs respectively. Tribunal, on appreciation of evidence both 5 documentary and oral, by judgment and awards in question, has awarded a total compensation of Rs. 34,000/- to the claimant in MVC No.1840/2008 and Rs.2,44,500/- to the claimant in MVC No.1841/2008. It is this judgment and awards passed by the Tribunal that have been challenged by the claimants in the present appeals.
5. Contention of Mr.Prakash, learned Advocate appearing for claimants is that Tribunal erred in not considering the fact that whole body disability sustained by the husband (claimant in MVC No.1840/2011) was 7% and Tribunal ought to have awarded compensation towards loss of future income and compensation awarded by the Tribunal is on the lower side and hence prays for enhancement. He would elaborate his submission by contending that on account of the injuries sustained by the claimant in MVC No.1841/2008 i.e., wife, he was perforced to stay in India though he had to proceed to United States of 6 America where he was employed and subsequently when he proceeded to United States of America after completion of leave of three months, he was terminated and he had to settle for a job with lesser monetary benefit and as such Tribunal ought to have taken these facts into consideration and awarded reasonable compensation under all heads.
He would also contend that Tribunal ignored medical evidence available on record namely, evidence of Dr.Sharan Srinivasan - P.W.5 who had stated that cognitive disability sustained by the claimant in MVC No.1841/2008 was 45% and permanent physical impairment in neurological condition was 57.50% and this ought to have been taken as whole body disability to award compensation under the head 'loss of future income'. He would also submit that compensation awarded by Tribunal to the claimant in MVC No.1841/2008 under all heads, particularly under the heads 'pain and suffering', 'loss of amenities' and loss of 7 future income requires to be enhanced substantially and as such, he prays for enhancing the compensation in respect of both the appellants.
6. Per contra, Sri Pradeep, learned Advocate appearing for Insurance company submits that impugned judgment and awards passed by the Tribunal is just and reasonable and even though claimant in MVC No.1841/2008 had not been examined, Tribunal had taken the evidence tendered by the Doctor - P.W.5 namely, Consultant Neurosurgeon to arrive at the whole body disability at 30% and same cannot be considered as erroneous and as such, he prays for dismissal of the appeals.
7. The accident in question, injuries sustained by the claimants, offending vehicle being insured by the first respondent in both the appeals are facts which are not in dispute. Hence, they are not delved upon as it would be repetition of facts.
8Re: MFA No.4492/2011 (MVC No.1840/2008)
8. It is not in dispute that claimant has suffered fracture of cuboid bone of right foot. Said fracture is united. It is admitted by the claimant that at the time of accident, he was on vacation for three months. The doctor who treated the claimant namely, P.W.4 has clearly opined that such fracture would take only two months time for union, as such, Tribunal has rightly awarded total compensation of Rs.34,000/- under the following heads:
Sl.No. Heads Amount
1 Pain and suffering Rs.10,000/-
2 Loss of amenities in life Rs.10,000/-
3 Disfigurement Rs.5,000/-
4 Conveyance charges Rs.3,000/-
5 Medical expenses Rs.3,200/-
6 Attendant charges, food & Rs.3,000/-
nourishment charges
Total Rs.34,000/-
9
Said award does not suffer from any infirmity on facts and in fact, it is in consonance with the evidence tendered by claimant himself both orally and documentary and the evidence of Doctor. As such, I do not find any ground to interfere with the quantum of compensation awarded by the Tribunal, As such, contention raised by learned Advocate appearing for appellant deserves to be rejected and accordingly it is rejected.
Re: MFA No.4493/2011 (MVC No.1841/2008)
9. Claimant was a pillion rider and in a road traffic accident, she had sustained Right Fronto Parietal Acute Subdural Hematoma with moderate diffuse Cerebral Edema and she was admitted to Bowring and Lady Curzon Hospital, Bangalore for being administered first aid treatment and thereafter she was shifted to NIMHANS, Bangalore and she was an inpatient from 21.10.2007 till the date of discharge on 31.10.2007. During the course of treatment, she underwent right 10 fronto parietal craniotomy and evacuation of acute SDH. This is evidenced from Ex.P-17 - Discharge summary. Records pertaining to Neurosurgery has been produced at Ex.P-22. One Dr.Sharan Srinivasan, Consultant Neurosurgeon of Abhaya Hospital came to be examined as P.W.5. He has examined the claimant on 07.06.2010 after a period of 2 years 8 months from the date of accident. On the basis of the records made available by the claimant, he has conducted a detail neuro- psychological and neuro-behavioral assessment of claimant on 08.06.2010 and results thereof are as under:
(a) Impaired motor speed right hand (<5th percentile);
(b) Impaired mental speed (3rd - 6th percentile) ;
(c) Impaired Category fluency - (<5th percentile);
(d) Impaired Working Memory - (<5th percentile);
(e) Impaired planning (3rd - 7th percentile);
(f) Impaired verbal comprehension (<5th percentile);
(g) Impaired phonemic fluency (15th - 20th percentile)
(h) Impaired verbal learning and memory (<5th percentile);11
(i) Impaired Logical memory (<5th percentile);
(j) Impaired visual learning and memory (<5th percentile)."
Disability assessment recorded by the Doctor - P.W.5 is as under:
"DISABILITY ASSESSMENT: As per the DGHS guideless and NIMHANS guidelines.
(1) Permanent physical impairment (PPI) in neurological conditions:
(a) Neurological disability-0
(b) Neurobehavioral disability-25%
(c) Cognitive disability: as per NIMHANS guidelines -45% FINAL PERMANENT PHYSICAL IMPAIRMENT IN NEUROLOGICAL CONDITIONS:
As per DGHS telescopic sum formula:
=(a)+b (90-a) (where a =45 and b=25) 90 =45+ 25 (90+45) 90 =57.50% FINAL PERMANENT PHYSICAL IMPAIRMENT IN NEUROLOGICAL CONDITIONS=57.50%"
Though a suggestion has been put to the said witness that he has not conducted said assessment, he has 12 stated that on his instructions, same has been carried out. Discharge summary issued by NIMHANS which came to be produced as Ex.P-17 would indicate that claimant had underwent a surgery for evacuation of acute SDH and temporal contusion. Though learned Advocate appearing for claimant has contended that whole body disability ought to have been taken as 57.50%, Tribunal has taken the whole body disability at 30% by taking into consideration the evidence of P.W.5
- neurosurgeon who has opined that neurological disability is zero and neurobehavioural disability is at 25%. Thus, permanent physical impairment in neurological conditions at 57.50% cannot form the basis for whole body disability and as such, taking into consideration the evidence of P.W.5 as noticed herein above, who has opined that said disability would significantly interfere with her avocation, Tribunal has assessed whole body disability at 30%. Said finding does not suffer from any infirmity. 13
10. Tribunal has considered the avocation of the claimant at Rs.3,000/- per month which is abysmally on the lower side. Taking into consideration that at the time of accident, claimant was aged about 30 years and she was postgraduate in Human Resources, her income requires to be construed at Rs.5,000/- per month.
Thus, by considering income of the claimant at Rs.5,000/- per month, loss of future income requires to be recomputed. Considering the nature of injuries sustained by the claimant and follow up treatment taken both at Bangalore, Hyderabad and USA, compensation awarded by the Tribunal under the heads 'pain and suffering' and 'loss of amenities' requires to be marginally enhanced.
11. Hence, for the reasons aforestated, additional compensation to which claimant would be entitled would be as under:
14
Sl. Heads Amount
No.
1 Loss of future income
(Rs.5000x30%x12x17) Rs.3,06,000/-
(less: awarded by the Tribunal Rs.1,83,600/-
Balance payable Rs.1,22,400/-
2 Loss of amenities Rs.15,000/-
3 Pain and suffering Rs.10,000/-
Total Rs.1,47,400/-
12. Accordingly, following order is passed:
(1) MFA No.4492/2011 is hereby
dismissed.
(2) MFA No.4493/2011 is hereby allowed
in part and judgment and award
passed by Tribunal in MVC
No.1841/2008 is hereby modified and an additional compensation of Rs.1,47,400/- is hereby awarded to the claimant which shall carry interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
15(3) Enhanced compensation with interest shall be deposited by first respondent- insurer before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.
(4) Enhanced compensation with interest is ordered to be released in favour of claimant in MVC No.1841/2008.
(5) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
Sd/-
JUDGE *sp