Karnataka High Court
National Insurance Co Ltd Dhubri Branch ... vs I.Aravind S/O Issaiah on 8 June, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 8TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
MFA.No.14856 OF 2007 (MV) C/w
MFA.No.1277 OF 2008 (MV)
In MFA.No.14856/07
BETWEEN:
National Insurance Co. Ltd.,
Dhubri Branch, Assam State &
National Insurance Co.Ltd.,
Kokrajhar Branch, Assam State,
Now Represented by its
Regional Manager,
National Insurance Co.Ltd.,
Regional Office, Subharam Complex,
# 144, M.G.Road,
Bangalore-560 001. ... Appellant
[By Sri.A.N.Krishna Swamy, Advocate]
AND:
1. I.Aravind S/o Issaiah,
Aged about 34 years,
Residing at No.84,
Kennedy's 3rd Lane,
Oorgaum Post,
K.G.F.
2. Susamma Rani Seal,
Aged Major,
Residing at Gowripur,
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Dhubri District,
Assam State.
3. Smt.Nazimba Begum,
W/o Mansur Ali,
Aged Major,
Residing at Bidyapur,
Dhubri District,
Assam State. ... Respondents
[By Smt.Suguna.R.Reddy, Advocate for R-1;
Appeal dismissed against Respondent Nos. 2 and 3 vide
order dated 2.8.2011]
This Miscellaneous First Appeal is filed under
Section 173 (1) of MV Act, against the judgment and
award dated 6.6.2007 passed in MVC No.150/2002 on
the file of the II Additional Civil Judge (Sr.Dn) and
Additional Motor Accident Claims Tribunal, Kolar,
awarding a compensation of Rs.13,20,000/- with
interest at 6% per annum from the date of petition till
realisation.
IN MFA.No.1277/08
BETWEEN:
Sri.I.Aravind S/o Issaiah,
Aged about 37 years,
Residing at No.341,
Kennedy's 3rd Lane,
Oorgaum Post, K.G.F.,
Kolar District. ....Appellant
[By Smt.Suguna.R.Reddy, Advocate]
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A N D:
1. Susamma Rani Seal,
Aged Major,
Residing at Gowripur,
Dhubri District,
Assam State.
2. The Branch Manager,
National Insurance Co.Ltd.,
Dhubri Branch,
Assam State.
3. Nazimba Begum,
W/o Mansur Ali,
Aged Major,
Residing at Bidyapur,
Dhubri Branch,
Assam State.
4. The Branch Manager,
National Insurance Co.Ltd.,
Kokrajhar Branch,
Assam State. ....Respondents
[By Sri.A.N.Krishna Swamy, Advocate for R-2;
Sri.M.Sowriraju, Advocate for R-4;
Appeal dismissed against Respondent Nos. 1 and 3 vide
order dated 2.8.2011]
This Miscellaneous First Appeal is filed under
Section 173 (1) of MV Act, against the judgment and
award dated 6.6.2007 passed in MVC No.150/2002 on
the file of the II Additional Civil Judge (Sr.Dn) and
Additional Motor Accident Claims Tribunal, Kolar, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
These Appeals coming for hearing on this day, the
court delivered the following:
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JUDGMENT
These two appeals, one by the insurer and the other by the claimant, are directed against the judgment and award dated 6.6.2007 passed by the II Additional MACT, Kolar in MVC No.150/2002. As such, both the appeals were heard together and are being disposed of by this common judgment.
2. The appellant in MFA.No.14856/2007 is the National Insurance Company Limited, Dhubri Branch and Kokrajhar Branch, in the State of Assam, who had been arrayed as respondent Nos.2 and 4 in the claim petition. The appellant in MFA.No.1277/2008 was the claimant before the Tribunal. For the sake of convenience, I shall refer the parties herein with reference to their rankings held before the Tribunal.
3. The claimant filed claim petition under Section 166 of the Motor Vehicles Act (for short "MV Act") seeking compensation for the personal injuries sustained by him in the motor vehicle accident that :5: occurred at 1.30 p.m. on 30.9.1998 near East Tianmari on Dhubri to Gowripur Road in the State of Assam. According to the case of the claimant, as on the date of the accident, he was employed as a Constable in CRPF attached to C-18 Bettalion, DIC Office, Gowripur Post, Dhubri District in the State of Assam. On the date of the accident, he was proceeding in a bus bearing registration No.ASG-2039 from Gowripur to Dhubri. At about 1.30 p.m., while the bus was proceeding near East Tianmari on Dhubri-Gowripur Road, Maxi Cab bearing registration No.AXA-5489 came from the opposite direction and since the driver was driving the vehicle at a high speed, he lost control over the vehicle and swayed the vehicle to the right side, as a result, the Maxi Cab rubbed with the bus as a result, the claimant sustained injury to his right elbow. Immediately after the accident, he was shifted to the nearby Hospital and from there he was shifted to CMC Hospital at Vellore where he was treated as inpatient. According to the claimant, on account of the physical disability he was not able to move the right hand, therefore, he was :6: removed from service and thereby he was rendered jobless and on account of the disability he is not in a position to use his right hand as such this has resulted in 100% disability. Therefore, the claimant sought compensation of Rs.15 lakhs under different heads. The claim petition was filed against the owner and insurer of the Maxi Cab arrayed as respondent Nos. 1 and 2 as well as owner and insurer of the bus arrayed as respondent Nos.3 and 4. Incidentally, both the Maxi Cab and the bus had been insured with the National Insurance Company Limited, of course, in different branches.
4. The owners of the two vehicles arrayed as respondent Nos. 1 and 3 remained absent in spite of service of notice and they had been placed exparte. The insurers of the vehicles contested the petition denying the petition averments. Though initially they denied the issuance of policy, later it was revealed that the vehicles were validly insured with them and the policy was in force as on the date of the accident.
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5. The Tribunal, on assessment of the oral and documentary evidence, by the judgment under appeal, answered the issue regarding actionable negligence in the affirmative holding that the accident was solely due to the negligence of the driver of the Maxi Cab and therefore the owner and insurer of the Maxi Cab are jointly and severally liable to compensate the claimant. The Tribunal, on the basis of the evidence on record, held that the claimant has suffered 100% functional disability and therefore he is entitled for loss of future earning on that basis. For that purpose, the Tribunal determined the monthly income of the claimant at Rs.6,000/-, though his salary was Rs.4,919/-, by adding some amount towards future prospects and on that basis quantified the loss of future earning at Rs.11,52,000/-. The Tribunal awarded a sum of Rs.25,000/- towards pain and suffering, Rs.50,000/- towards loss of amenities, Rs.54,228/- towards loss of earning during the laid up period, Rs.4,800/- towards attendant charges, nourishing food etc., Rs.29,000/- towards medical expenses and Rs.5,000/- towards :8: travelling expenses. Thus the Tribunal awarded total compensation of Rs.13,20,028/-. The Tribunal directed the insurer of the Maxi Cab to pay the said amount with interest at 6% per annum from the date of the petition till the date of payment.
6. Aggrieved by the said judgment and award, the insurer of the offending vehicle has presented the appeal in MFA.No.14856/2008 inter alia on the ground that the Tribunal has committed error in granting compensation towards loss of future income by treating the functional disability at 100% though there is absolutely no acceptable evidence in that regard; that the Tribunal has committed error in awarding sum of Rs.54,228/- towards loss of income during laid up period though loss of future income is awarded by treating functional disability at 100% and that the compensation awarded under other heads are excessive and exorbitant; that the Tribunal has failed to note that the claimant is drawing pension and while determining the monthly income for the purpose of quantification of :9: the loss of future income, pension amount drawn by him ought to have been deducted.
7. Being dissatisfied with the quantum of compensation, the claimant has presented the appeal in MFA.No.1277/2008 inter alia contending that the Tribunal has not properly determined the monthly income of the claimant; that the Tribunal ought to have added 50% of the last pay drawn towards future prospect and on that basis, the loss of future earning should have been determined; that the compensation awarded under other heads are too low regard being had to the nature of the injuries and the disability suffered by the claimant.
8. I have heard the learned counsel appearing on both sides and perused the records secured from the Tribunal.
9. There is no dispute regarding occurrence of the accident and the resultant injuries to the claimant. The finding recorded by the Tribunal on the issue regarding : 10 : actionable negligence is not under challenge. Therefore in the light of the above, points required to be considered in these appeals are;
(1) whether the compensation quantified by the tribunal is excessive and liable to be reduced as contended by insurer?
(2) whether the claimant is entitled for enhancement of compensation? If so, to what extent?
10. The bone of contention raised on behalf of the insurer is with regard to the award of compensation towards loss of future earning by treating the functional disability at 100%. There is no dispute that as on the date of the accident the claimant was working as a constable in CRPF attached to C-18 Bettalion, DIC Office, Gowripur Post, Dhubri District of State of Assam. As on the date of the accident, his monthly salary was Rs.4,519/-. The evidence on record establishes that immediately after the accident, the claimant was taken to Government Hospital at Dhubri, where he took treatment for 5 days and later he was brought to CMC : 11 : Hospital, at Vellore where he was treated as inpatient from 12.10.1998 to 24.10.1998 during which period he underwent a surgery of right humerus. On clinical and radiological examination he was found having suffered compound fracture of shaft of humerus on lower 1/4th and upper ¾, open fracture of lateral condyle right humerus, open fracture of Olecranon right ulna and injury of Ulnar nerve. During the surgery, the fracture of lateral condyle of right humerus was reduced by open reduction and external fixation. The evidence further indicates that he was once again admitted to CMC Hospital, Vellore on 28.5.1999 and underwent surgery for removal of implants. The medical evidence further indicates that in spite of best treatment, he has suffered permanent disability resulting in non-functioning of his right hand. There is no serious dispute that on account of this disability, the claimant was invalidated out from service with effect from 19.11.2001 as is clear from office order issued by the Commandant-18 Bettalion, DIC Office, Gowripur Post, Dhubri District of State of Assam and marked as per Ex.P.15. The medical : 12 : evidence further establishes that the claimant is not able to use his right hand. Therefore, he has been prevented from doing any work. Having regard to the evidence on record, in my opinion, the Tribunal is justified in holding that the claimant has suffered 100% functional disability. Of course, the Doctors examined before the Court have assessed the whole body disability at 30 to 40%. However, the whole body disability as assessed by the Doctors does not reflect the functional disability. The claimant was admittedly working as a constable in CRPF attached to C-18 Bettalion, DIC Office, Gowripur Post, Dhubri District of State of Assam. On account of his inability to use is right hand he was invalidated out from the service. On account of this disability, he is not in a decision to use his right hand which is an important organ for any person to do any kind of work. Therefore, though in terms of whole body disability the percentage may be at 30% to 40%, this disability has resulted in 100% functional disability. Therefore, the Tribunal has not committed any error in : 13 : assessing the compensation towards loss of future income by treating 100% functional disability.
11. There is no dispute that as on the date of the accident, the claimant was drawing a monthly salary of Rs.4,519/-. Ex.P.19 further indicates that as on the date of invalidation, his salary was Rs.5,621/-. By adding another Rs.379/-, the Tribunal has determined the monthly income of the claimant at Rs.6,000/-. As noticed supra, the claimant was in a Government employment and he had a permanent job. He had the advantage of annual increments and periodical promotions as well as pay revisions. Therefore, as per the law laid down by the Apex Court in the case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 (SC) and having regard to the age of the claimant, 50% of his last pay drawn should be added towards future prospect. If the pay of the claimant as on the date of the accident is taken, 50% of the same would be Rs.2,260/-. Thus the total income works out to : 14 : Rs.6,779/-. Admittedly the claimant is receiving pension. Ex.P.20 is certificate of pension. As per this document, the pension is fixed at Rs.1,275/- as on the date of the invalidation. On this, he was also to be entitled to get Dearness allowances. While determining the future loss of income by taking 100% functional disability, it is just and necessary to deduct the pecuniary advantages he is receiving from the Government by way of pension. Therefore, even if Rs.1,500/- is deducted from out of the above monthly income, the balance works out to, 6779 - 1500 = Rs.5,279/- which may be rounded to Rs.5,280/-. The appropriate multiplier applicable having regard to the age of the claimant would be 17. Thus the total loss of future earning work out to Rs.10,77,120/-, whereas the Tribunal has awarded Rs.11,52,000/-. Having regard to the voluminous medical records produced by the claimant and the permanent disability suffered by the claimant, the compensation awarded under other heads, in my opinion, are just and reasonable and does : 15 : not call for either reduction or enhancement. Thus the claimant is entitled to total compensation of Rs.12,44,148/- as against Rs.13,20,028/- awarded by the Tribunal. In view of the above, the appeal filed by the claimant is liable to be dismissed while the appeal filed by the insurer deserves to be allowed.
12. Accordingly, the appeal filed by the insurer in MFA.No.14856/2007 is allowed. The compensation awarded by the Tribunal at Rs.13,20,028/- is reduced to Rs.12,44,148/-. The award passed by the Tribunal in other aspects is left undisturbed.
The appeal filed by the claimant in MFA.No.1277/2008 is hereby dismissed.
The amount in deposit made by the Insurance Company is ordered to be transferred to the Tribunal concerned.
SD/-
JUDGE RS/*