Karnataka High Court
M/S Tata Aig General Insurance Company ... vs Smt K M Chandrakala on 21 May, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MAY 2020
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
MISCELLANEOUS FIRST APPEAL No. 8829/2019 (MVC)
c/w
MISCELLANEOUS FIRST APPEAL No. 8876/2019 (MVC)
MFA No. 8829/2019
BETWEEN
M/s Tata AIG General Insurance Company Ltd.,
2nd Floor, JP & Devi Jambukeswar Arcade,
No. 63, Millers Road, Bengaluru - 560 052,
Represented by Regional Claims Manager.
...Appellant
(By Sri. Ravi S Samprathi, Advocate)
AND
1. Smt.K.M.Chandrakala,
W/o B.M.Nadeesha,
Aged about 41 years,
No. 1308, Jeevan Krupa,
Near PWD Colony, Hassan.
2. Vasantha,
S/o Krishne Gowda,
Major in age,
Resident of Dasarakoppalu,
Kasaba Hobli, Hassan Taluk.
...Respondents
(By Sri.Aswathaiah, Advocate, for R1;
Notice to R2 is dispensed with vide order dated 14.2.2020)
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This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 3.9.2019 passed in
MVC No.1634/2012 on the file of the III Additional District
Judge and MACT, Hassan, awarding compensation of
Rs.11,96,000/- apart from the earlier award that passed by
this court on 31.7.2014 Rs.1,69,910/- along with interest at
6% p.a. from the date of petition by excluding Rs.50,000/-
towards future medical expenses and also accrued interest
from the date of award i.e. from 31.7.2014 till filing of MFA
No. 7549/2018.
MFA No. 8876/2019
BETWEEN
Smt. K.M.Chandrakala,
W/o B.M.Nandeesha,
Aged 46 years,
Hindi Teacher, House No.1308,
Jeevan Kripa, Near PWD Colony,
Hassan - 573 201.
Now at "Pushpagiri Nilaya",
Murugappa Layout,
1st Main, 2nd Cross,
Doddamandiganahalli,
Kandali Post, Hassan - 573 201. .. Appellant
(By Sri.Aswathaiah, Advocate)
AND
1. Vasantha S/o Krishne Gowda,
Dasarakoppalu, Kasaba Hobli,
Hassan Taluk, - 573 201.
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2. The Manager,
Tata AIG General Insurance Company Ltd.,
G.P.Devi Jambookeshwara Arcade,
No. 63, Miller Road,
Bengaluru - 560 001. .. Respondents
(By Sri Ravi S. Samprathi, Advocate, for R2;
Notice to R2 is dispensed with vide order dated
31.1.2020)
This MFA filed under section 173 (1) of MV Act against
the judgment and award dated 3.9.2019 passed in MVC No.
1634/2012 on the file of the III Additional District Judge and
MACT, Hassan, partly allowing the claim petition for
compensation and seeking enhancement of compensation.
These MFAs coming on for admission this day, the
court delivered the following:
JUDGMENT
These two appeals arise from the judgment and award dated 3.9.2019 in MVC 1634/2012 on the file of III Additional District Judge and MACT, Hassan. MFA 8829/2019 is filed by the insurance company and MFA 8876/2019 is filed by the claimant. The brief background is as follows : -
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2. The claimant before the tribunal met with a road traffic accident on 14.6.2012 when she was standing with her husband at the bus stop waiting for a bus. The autorickshaw bearing KA.13 A-2350 belonging to the first respondent before the tribunal dashed against her as its driver was rash and negligent in driving it. The tribunal partly allowed the claim petition on 31.7.2014 by awarding compensation of Rs.1,69,910/- with interest @ 8% p.a. Challenging this award the insurance company preferred an appeal MFA 6979/2014 to this court. Nearly four years after the insurance company preferred the appeal, the claimant filed an appeal, MFA 7549/2018 challenging the award. The insurance company's appeal was dismissed. The claimant in her appeal, MFA 7549/2018 made an application for production of additional evidence and therefore this court allowed her appeal partly and remanded the case to the tribunal to examine whether the claimant would be entitled to any further compensation in the light of additional evidence produced by her; This court made it clear while remanding the case to the tribunal that the original award of 5 the tribunal would remain in tact. The tribunal held further enquiry and received the additional evidence and passed the impugned award by granting additional compensation of Rs.11,96,000/- with interest @ 6% p.a. from the date of petition and to pay additional amount of Rs.50,000/-
towards future medical expenses for the claimant. It has observed in the judgment that this Rs.50,000/- should be kept in deposit so that the accrued interest on the said amount may be paid towards premium for Medi Claim Policy which will benefit her in the event she has to undergo Secondary Reconstruction Procedure in connection with the injuries sustained by her in the accident. Aggrieved by this award these two appeals have been preferred.
3. The counsel for the insurance company and the claimant addressed their arguments on the merits of these two appeals.
3.1. Learned counsel for the insurance company argued that the tribunal has grossly erred in adopting the multiplier method for granting additional compensation of 6 Rs.11,96,000/- to the claimant as she has engaged a maid servant for her domestic work. The learned counsel argued that the claimant is a teacher in a Government School, and she might have engaged a maid servant even before she sustained injury in the road traffic accident. There is no material to come to conclusion that the claimant had to necessarily engage a maid servant after she sustained injuries in the accident. Adoption of multiplier system for awarding additional compensation in connection with engaging a maid servant is not permitted and therefore appeal deserves to be allowed and impugned award set aside.
3.2. The learned counsel for the claimant submitted that in fact the claimant is entitled to more compensation than is awarded. The claimant is totally dependant on maid servant, whose presence is always necessary. The claimant is paying Rs.6,000/- to Rs.9,000/- per month to the domestic aid, and her services will continue for ever. In this background the tribunal adopted multiplier method. It was his further argument that the claimant actually sought 7 further compensation of Rs.25,00,000/- but the tribunal granted Rs.11,96,000/- which amount is very less. It is his argument therefore that claimant's appeal should be allowed, compensation enhanced, and the insurance company's appeal dismissed.
4. Before examining the correctness of the impugned award, it is necessary to set forth here the compensation granted by the tribunal in the first instance and the claim for additional compensation after the remand.
Compensation granted under award dated 31.7.2014
1. For pain and suffering Rs. 35,000.00
2. Medical expenses Rs. 88,055.00
3. Loss of income during Rs. 27,855.00 treatment
4. Attendants' charges Rs. 9,000.00
5. Nutrition and other expenses Rs. 10,000.00 Total Rs. 1,69,910.00 8 Additional claim
1. For pain and suffering Rs.10,00,000.00
2. Medical expenses & conveyance Rs. 1,00,000.00
3. Attendants' charges (maid Rs.20,00,000.00 servant)
4. Compensation for the injury Rs. 5,40,000.00 sustained by the husband in the same accident
5. Repayment of hand loan Rs. 5,00,000.00
6. Expenses incurred in Rs. 23,000.00 connection with examining the doctor on commission Total Rs.41,63,000.00
5. The claimant produced Exs. P14 to P20 in support of her additional claim. The tribunal rejected all the claims except domestic help's charge and extra medical claim. The observation of the tribunal for rejecting many extra claims are that if the claimant's husband also sustained injuries in the same accident, he should have made a separate claim petition, but he did not; and her request for granting Rs.5,40,000/- to him cannot be considered. Exs. P15 and 17 to 20 are the documents pertaining to her availing housing loan. In the year 2015, she shifted to her new 9 house. There is no proof for availing hand loan from her friends and relatives. Ex.P14 is a certificate issued by the Medical Board on 27.6.2013 and Ex.P16 is physical disability certificate. Producing these two documents, she took transfer from Arkalgud to Hassan, therefore her assertion that her husband used to spend his time to take her to school and thereby he lost his income is unsustainable. It also held that spending Rs.23,000/- for examining the doctor on commission has no documentary proof, and this claim was also rejected. Rejection of claims on these heads is justified by valid reasons, there are no grounds to take another view.
6. The tribunal is however of the opinion that what the claimant stated about taking treatment at various hospitals and spending an amount of Rs.1,00,000/- during 2013-2014 is an improvement made by her, and it has not believed her evidence in this regard, but came to conclusion that she might have spent some considerable money towards conveyance, food and nutrition and granted an amount of Rs.75,000/- besides Rs.10,000/- already awarded in the 10 first instance. In regard to Secondary Reconstruction Procedure that the claimant has to undergo as opined by the doctor, the tribunal is of the opinion that Rs.50,000/- could be awarded and if that amount is deposited, the interest earned thereon may be paid towards premium for 'Medi Claim Policy', which will help her to take treatment. Observing so, it declined to grant Rs.2,00,000/- sought by claimant and only awarded Rs.50,000/-.
7. What is very curious is the method the tribunal has adopted for granting an amount of Rs.10,71,000/- towards domestic help charges or attendant's charges. It is of the opinion that the claimant has to depend on a maid servant lifelong for house hold work. The maid servant has given evidence as PW4. Although it observed that the evidence of PW4 is oscillating, it considered that the claimant is paying Rs.6,000/- every month to PW4 and therefore calculated the amount payable on this head by adopting multiplier '15' (Rs. 6,000 x 12 x 15 = Rs. 10,80,000/-). From this amount, the tribunal deducted Rs.9,000/- granted in the first instance and held that Rs.10,71,000/- was payable. This finding of 11 the tribunal is strongly objected to by the insurance company; and the claimant says this amount is inadequate.
8. I am constrained to say that the pain and agony that one suffers due to injuries sustained in an accident is immeasurable and inexplainable; Accident is an unfortunate event in anybody's life; the victims of accident are entitled to claim just compensation, but any attempt to find fortune out of unfortune must be denounced. In this case the claimant is a teacher, who is expected to impart moral values to her students. Her further claim based on documents that she produced in her earlier appeal only shows her greed and avarice for money. It is pertinent to mention here that actually she accepted the compensation of Rs.1,69,910/- awarded by the tribunal. She did not prefer the appeal against that award although the insurance company preferred the appeal after the first award was passed. She did not even prefer appeal even after coming to know of appeal filed by the insurance company. Belatedly after four years, she filed the appeal in the year 2018. This court might have condoned delay in filing the appeal, that is a 12 different aspect altogether. But her conduct in producing documents, which are worth rejection, as has been done by the tribunal, only indicate her dishonest intention to grab money. It is to be remembered that the insurance companies pay compensation from the public money, therefore compensation to be paid to the victims of accident cannot be more than 'just' and 'reasonable'.
9. The tribunal's decision to award an extra amount of Rs.75,000/- for conveyance and nutrition is justifiable. For further treatment, i.e., for Secondary Reconstruction Procedure, the doctor stated that Rs.2,00,000/- was required. Instead of restricting the amount to Rs.50,000/- and proposing a 'Medi Claim Policy', once for all Rs.2,00,000/- could have been granted and therefore I find modification of the award to this extent.
10. It appears very well that the tribunal has stretched its hand too long by adopting multiplier method for granting extra compensation of Rs.10,71,000/- in connection with appointing a house maid. PW4 is the house 13 maid; and with regard to her evidence, the tribunal has observed that evidence is oscillatory. Be that as it may, the claimant is a teacher in a Government School, and there is no loss of income due to the accident. At the time of accident, her salary was Rs.28,000/- and when she gave evidence for the second time, i.e., after the remand, she stated that she was getting salary of Rs.63,000/- per month. If evidence of PW4 is assessed, it is not impossible to infer that she was working in the house of the claimant even before the latter met with an accident. Actually PW1 should have been questioned in this regard in her cross examination, notwithstanding this, it is not impossible to infer that she might be engaging a house maid for quite a long time even before she met with the accident in the year 2012 in view of the fact that she is a teacher and that her husband is also working. Therefore it is not as though she had to employ a house maid only after the accident. There is also increase in her salary and she can very well meet this expenditure. She deserves no compensation on this head as it has nothing to do with the accident. I do not think that 14 the tribunal is right in granting compensation of Rs.10,71,000/-. However, considering the nature of injury she sustained to her right hand, she is entitled to another Rs.25,000/- towards loss of amenities. Therefore, the additional compensation that the claimant is entitled to is as follows : -
1. Towards further treatment Rs. 2,00,000.00 (Secondary Reconstruction Procedure)
2. Loss of amenities Rs. 25,000.00
3. Food, nutrition and conveyance Rs. 75,000.00 (as awarded by tribunal) Total Rs. 3,00,000.00
11. Therefore, from the above discussion, I pass the following order : -
(i) MFA 8829/2019 filed by the insurance company is partly allowed, impugned award is modified, compensation is reduced to Rs.3,00,000/- with interest at the rate of 6% p.a. from the date of petition till payment, but the claimant is not entitled to interest for the delay period as 15 ordered in MFA 6979/2014 c/w MFA 7549/2018. It is made clear that Rs.3,00,000/-
that has been awarded is in addition to Rs.1,69,910/- granted by the tribunal for the first time.
(ii) MFA 8876/2019 is dismissed.
(iii) Taking into account the conduct of the claimant, costs of these two appeals are denied.
SD/-
JUDGE ckl/-