Karnataka High Court
Lokeshaiah vs Lakshmegowda on 19 April, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
MISCELLANEOUS FIRST APPEAL NO.6105 OF 2019 (MV)
BETWEEN:
LOKESHAIAH
S/O.RANGASWAMAIAH
AGED ABOUT 35 YEARS
R/AT GUDDADAHALLI VILLAGE
BIDARA POST, GUBBI TALUK
NOW RESIDING AT
2ND CROSS, SIRA GATE
TUMAKURU - 572 106. ... APPELLANT
(BY SRI K.SHANTHARAJ, ADVOCATE)
AND:
1. LAKSHMEGOWDA
S/O.DEVEGOWDA
AGED ABOUT 42 YEARS
RESIDING AT PADMA NILAYA
2ND STAGE, OPP. TO GSS BHAVANA
SAPTHAGIRI EXTENSION
TUMAKURU - 572 101
2. THE NEW INDIA INSURANCE
COMPANY LIMITED
BY ITS MANAGER
BRANCH OFFICE
OPP. TO RAMA MANDIRA
GENERAL KARIYAPPA ROAD
(BARLINE ROAD), K.R.EXTENSION
TUMAKURU - 572 101 ... RESPONDENTS
(BY SMT.MANJULA N.TEJASWI, ADVOCATE FOR R-2;
NOTICE TO R-1 IS DISPENSED WITH V.O.D
10.08.2021)
***
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THIS MFA IS FILED UNDER SECTION 173 (1) OF THE MV
ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD
DATED 13.08.2018 PASSED IN MVC NO.759//2017 BY I
ADDITIONAL DISTRICT JUDGE AND MACT, TUMAKURU & ETC.
THIS MFA HAVING BEEN HEARD AND RESERVED ON
24.03.2022 AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This is an appeal preferred by the claimant being aggrieved by the judgment and award dated 13.08.2018 passed in MVC No.759/2017 before I Additional District Judge & MACT, Tumakuru, (hereinafter referred to as 'the tribunal') and seeking enhancement of compensation.
2. Though this matter is listed for admission, with consent of learned counsel on both sides, matter is taken up for final disposal.
3. Parties to the appeal shall be referred to as per their status before the tribunal.
4. Brief facts of the case is as under:
On 20.04.2017 at about 6.00 pm when the claimant and his brother got down from the passenger auto at M.H. Patna Gate and while proceeding by walk, at that point of time, one Hero Splendor Plus Motor cycle bearing registration No. KA-06 EU-6220 being ridden by its driver 3 with a high speed in a rash and negligent manner came from behind and dashed against the claimant, due to which the claimant sustained grievous injuries. Immediately, claimant was shifted to Hemavathi Orthopedic and Trauma Centre, wherein he took treatment as an inpatient for a period of one month and underwent surgery and incurred huge expenditure towards medical treatment and other incidental charges.
4.1. It is stated that in view of accident having occurred as stated above, the jurisdictional Police registered a case in Cr.No.132/2017 against the owner of the motor cycle. It is stated that due to the accident the claimant suffered injuries, thereby causing permanent disablement resulting in loss of future earning capacity. It is further stated that claimant was aged 33 years, working in a Private factory and was earning Rs.11,080/- per month. It is further stated that claimant has spent more than Rs.3,00,000/- towards medical expenses and other incidental expenses. It is further stated that prior to the date of occurrence of accident, the claimant was hale and healthy and now due to the injuries suffered in the accident, he is unable to do the same work as he was doing 4 prior to the occurrence of accident. Hence, he sought for compensation by filing a claim petition.
4.2. On service of notice to respondents, they appeared before the tribunal and filed their statement of objections denying the claim made by the claimant.
Respondent No.1-owner of the vehicle pleaded that since motor cycle was insured with second respondent, any liability fastened on him would have to be indemnified by respondent No.2 as he had a valid insurance policy and a valid driving licence as on date of accident, whereas respondent No.2 took up the plea that the accident had occurred due to fault of the claimant. Therefore, he was negligent and it did not occur due to the rash and negligent riding of the motor cycle. It was further pleaded that rider of the motor cycle did not have valid and effective driving licence and was not wearing a helmet as on the date of occurrence of accident. It also denied the income of the claimant and further pleaded that a false case was registered in collusion with the owner of the motor cycle. On the basis of these pleadings, respondent No.2 sought for dismissal of claim petition.
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4.3. On the basis of the pleadings, the tribunal framed relevant issues, which reads as under:
"1. Whether the petitioner proves that he sustained injuries in a road accident on 20-04-2017 at about 6.00 pm due to the actionable negligence of the rider of motor bike bearing registration no.KA- 06-EU-6220 as alleged?
2. Whether petitioner is entitled for compensation? If so, to what quantum and from whom?
3. What Order?"
4.4. In order to prove and establish his case, the claimant got examined himself as PW.1, an eye witness to the accident as PW.2 and the Doctor as PW.3 and got marked documents as Exs.P1 to P20. On the contrary, the respondents have not stepped into the witness box and did not produce any documents in support of their case.
4.5. After hearing both sides and providing sufficient opportunity to both parties, the tribunal awarded compensation in a sum of Rs.26,62,999/- with interest at the rate of 6% per annum from the date of claim petition till the date of payment. The tribunal fixed liability as 6 against respondent No.2 - Insurer and directed to pay the compensation.
5. Being aggrieved by the judgment and award of the tribunal, the claimant has preferred this appeal seeking enhancement.
6. Learned counsel for the claimant contends that the impugned order passed by the tribunal is erroneous and tribunal has awarded a meager and inadequate compensation resulting in miscarriage of justice to the claimant. He further contends that tribunal has committed a serious error in awarding only paltry sum and the same requires to be enhanced. He further contends that the tribunal has failed to assess proper income of the claimant to arrive at a compensation, despite production of salary certificate at Ex.P11 which would show that the claimant was working in Srinidhi Solvex Pvt. Ltd. as an Electrician and drawing a salary of Rs.11,080/- per month, which is also evidenced by production of Ex.P10 which is the Bank pass book for remittance of his salary to the said Bank account.
7. Learned counsel for claimant further contends that the tribunal has committed an error in not awarding 7 suitable compensation towards expenditure meted out for treatment, medical expenses and other miscellaneous expenses expended by the claimant.
7.1. Learned counsel for claimant further contends that though claimant got examined Doctor as PW.3, who has deposed that the disability suffered by the claimant to an extent of 75% to the whole body, tribunal has rightly assessed the disability to the whole body to an extent of 100%. He further contends that though the disability is calculated at 100%, the tribunal has committed a serious error in not awarding loss of future prospects. It is further contended that the tribunal has lost sight of a fact that the claimant having suffered 100% disability is in a vegetative state due to paraplegia and he cannot do any work either for the present or in the future thereby rendering him jobless, in fact, becoming fully dependent on another person namely, an attendant for the rest of his life for even basic necessities and day-to-day activities.
7.2. Learned counsel further contends that the Doctor-PW.3 has categorically stated on oath that there is, (1) L-2 compression fracture with paraplegia; (2) healed surgical lower scar over lower back; (3) patient is wheel 8 chair bound; (4) passing urine by self catheterization, patient is bound to pads for stool; (5) diminished sensation below umbilicus; (6) power of both lower limbs 2/5. Hence, in view of the above statement of the expert namely, Doctor, the tribunal having assessed 100% disability ought to have awarded loss of future prospects of 40% in addition to the income, which has not been done in the present case calling for interference at the hands of this Court.
7.3. Learned counsel further contends that in view of the opinion expressed by the Doctor-PW.3 and the disability having been taken at 100% by the tribunal rightfully whereby the claimant is rendered helpless without the assistance of an attendant throughout his life. The tribunal has failed to take into consideration suitable compensation towards future attendant charges.
7.4. Learned counsel further contends that the claimant was inpatient for more than 19 days and has spent more than Rs.3,50,000/- towards medical expenses and having suffered such traumatic experience in the Hospital the tribunal has erred in awarding meager compensation of Rs.75,000/- towards pain and suffering, 9 which also requires enhancement. Hence, on these grounds, he seeks to allow the appeal and enhance the compensation.
7.5. Learned counsel for claimant has relied on the following judgments:
(1) Master Ayush v. The Branch Manager, Reliance General Insurance Co. Ltd. & Anr. reported in 2022 SCC OnLine SC 375;
(2) Vittal S.Dandapur v. The New India
Assurance Company Ltd., & another
[MFA.NO.2450/2018, DD 15.06.2020];
(3) Narasimhaiah v. H.Sikandar & another
[MFA.NO.2450/2018, DD 15.06.2020];
(4) Sri Himanshu Nairi v. The MD VRL Logistics Ltd & Others [MFA.NO.2915/2019, DD 03.12.2021];
8. Per contra, Smt.Manjula N.Tejaswi, learned counsel for Insurer vehemently contends that the judgment and award passed by the tribunal is reasoned and considered order and the tribunal has considered all aspects of income, multiplier, pain and suffering, in fact, the tribunal has awarded excess and exorbitant 10 compensation by assessing the disability to 100% whereas according to the opinion of the expert namely, Doctor, the assessment is made at 75% which ought to have been taken as disability rather than stepping into the shoes of the expert and awarding disability at 100%, which is erroneous and same requires to be reduced to 75%. She further contends that even according to PW.3-Doctor, the claimant is not fully paraplegic and is not in a total vegetative state but has suffered paraperisis which means partial paralysis. Therefore, the assessment made by the tribunal of disability to an extent of 100% is highly erroneous and the same requires to be set aside. She further contends that it is not the case of PW.3-Doctor or the claimant that there is no chance of recovery in the future as the Doctor has said that 'he cannot say whether the claimant can recover'.
8.1. It is the vehement contention of learned counsel for the Insurer that in the present case on hand, loss of future prospects at 40% cannot be awarded for the simple reason that the same is awarded only in the case of death. In the present case on hand, the claimant is surviving though may have encountered disability to the extent of 11 75%, he is alive and not dead and gone. She further contends that the claimant would also not be entitled to future medical expenses as no documentary evidence is placed with regard to the expenditure to be meted out for the future. She further strongly denies the argument of learned counsel for the claimant with regard to the requirement of two attendants for the remaining part of life of claimant, as no evidence either oral or documentary has been placed to that effect. On these grounds, she seeks for dismissal of the appeal.
9. Having heard the learned counsel for claimant and respondent-Insurer, the points that arise for consideration are:
"(1) Whether the tribunal has awarded
meager compensation?
(2) Whether the claimant is entitled for
enhancement?"
10. On careful examination of entire material
documents including original documents and on the basis of the elaborate submission made by both the learned counsel, I am of the opinion that claimant is entitled for 12 enhancement of compensation as the same is meager for the reasons mentioned herein below:
(a) It is not in dispute that on 20.04.2017 at about 6.00 pm, accident occurred between claimant and Hero Splendor Plus motor bike. In order to establish and prove the said fact PW1 has produced Ex.P1 to P7, which are Police records, which is pursuant to the investigation and enquiry conducted by the Police. These documents are not seriously disputed or challenged by the respondents. These Police records having culminated in the criminal case and since the same has not been challenged by the respondents, same will have to be accepted on its evidentiary value, it could be safely concluded that the driver of the motor bike is responsible for occurrence of the accident and he was rash and negligent.
(b) Now, in order to assess the age, avocation and income of the claimant, this Court will have to peruse the material documents produced by the claimant. Claimant has stated that he was working as an Electrician and was drawing a salary of Rs.11,080/- per month. Tribunal has rightly assessed the income of the claimant at Rs.11,080/- per month for computation of compensation on the basis of Ex.P10-Bank pass book, wherein entries apparently 13 evidence with regard to remittance of continuous consistent amount as salary from Sreenidhi Solvex Pvt. Ltd., which is also evidenced by production of salary certificate issued by the employer at Ex.P11.
(c) The claimant has pleaded in his claim petition and also adduced the evidence that he is aged 33 years as on the date of accident as exhibited at Ex.P3-wound certificate, which is not in much dispute. In view of the fact that claimant was aged less than 40 years and having a fixed income as stated above and also having suffered 100% disability due to paraplegia, I am of the opinion that claimant would be entitled to addition of 40% loss of future earning capacity as per the Constitutional Bench judgment of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017) 16 Supreme Court Cases
680.
(d) In view of the claimant being aged 33 years, the appropriate multiplier would be '16' as per the judgment of the Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 Supreme Court Cases 121, 14 which is rightly calculated by the tribunal and does not call for interference by this Court.
(e) The claimant has got examined the Doctor as PW.3, who has treated him and has given a detailed clinical analysis with regard to the injuries suffered and has also mentioned that it is a case of paraplegia. There is no contrary material evidence to disprove the opinion expressed by the expert, for this Court to take a contrary view.
(f) In view of the above, the claimant would be entitled for income of Rs.15,512/- (Rs.11,080/- + 40%) and loss of future earning capacity in a sum of Rs.29,78,304/- (15,512/- X 12 X 16) as against Rs.21,27,360/- awarded by the tribunal under the head loss of future earning capacity due to permanent disability.
(g) The tribunal has awarded a sum of Rs.75,000/- under the head pain and suffering. Considering the facts and circumstances of the case that the claimant herein was admitted as inpatient for 19 days and having suffered the injuries mentioned above and rendering him 100% disability due to paraplegia the amount of pain, agony and trauma suffered by the claimant cannot be assessed or 15 calculated in monetary compensation. However, this Court will have to consider some amount of compensation as a solace to the claimant-victim. In the present facts and circumstances of the case, I am in agreement with learned counsel for the claimant that the compensation awarded by the tribunal is extremely on the lower side and same requires to be enhanced. Accordingly, I award Rs.3,00,000/- under the head of pain and suffering and for happiness and discomfort as against Rs.75,000/- awarded by the tribunal.
(h) With regard to medical expenses, the tribunal has awarded a sum of Rs.3,26,139/-, which is on the basis of medical bills and prescriptions and also invoices produced by the claimant at Ex.P14 and P15, which is as per the actual bills produced and hence, the same does not call for interference.
(i) Towards food, nourishment, transportation charges and loss of amenities, the tribunal has awarded a sum of Rs.20,000/-, Rs.20,000/- and Rs.50,000/- respectively, which does not call for interference.
(j) Towards attendant charges, the tribunal has awarded Rs.9,500/-. I am in agreement with learned counsel for the claimant that the said amount is extremely 16 on the lower side considering the fact in the present case on hand that the claimant has suffered paraplegia and having rendered helpless without the assistance of attendants, it would be necessary to re-think and re- consider this aspect of compensation to be awarded under this head. I am of the opinion that atleast one attendant would be continuously required for the remaining part of life of claimant. Therefore, considering Rs.4,000/- per month towards expenses of one attendant, the claimant is entitled for compensation under the head of attendant charges of Rs.7,68,000/- (Rs.4,000/- x 12 x 16).
(k) Towards future medical expenses, the tribunal has awarded Rs.35,000/-. I am in agreement with learned counsel for the claimant that the said amount is on the lower side and the same requires enhancement, in view of the fact that the claimant has suffered paraplegia and require future continuous medical treatment in the form of regular physiotherapy, regular changing of catheter, may be even wheel chairs or other medical equipments to facilitate the claimant from doing his day- to-day activities. Therefore, for purchase of such equipments, I deem it appropriate to award a sum of Rs.5,00,000/- under the head of future medical 17 expenses and also considering the fact that the claimant is aged only 33 years and he would have to live his life with further complications, if any and further treatment requiring other medical paraphernalia. However, this amount shall not attract interest. It is also necessary to mention here that the claimant cannot be forced to come back before this Court once again for additional compensation in view of further expenditures on equipments and treatment. Hence, I am of the opinion that this would be just and reasonable compensation.
(l) This view is fortified by the judgment of the Hon'ble Apex Court in the case of Master Ayush (supra) and also by the decisions of Division Bench of this Court in the cases of Vittal N.Dandapur (supra) and Sri Himanshu Nairi (supra).
(m) In view of the discussions made above, the claimant would be entitled for the enhanced compensation as mentioned in the table below:
Heads As awarded As awarded by
by the this Court
tribunal (in Rs.)
(in Rs.)
Pain and Suffering 75,000-00 3,00,000-00
Medical expenses 3,26,139-00 3,26,139-00
Food and 20,000-00 20,000-00
nourishment
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Transportation 20,000-00 20,000-00
charges
Loss of amenities in 50,000-00 50,000-00
life
Attendant charges 9,500-00 7,68,000-00
Loss of future 21,27,360-00 29,78,304-00
income
Future medical 35,000 5,00,000-00
expenses
TOTAL: 26,62,999 49,62,443-00
Accordingly, I pass the following:
ORDER
i) The appeal is allowed-in-part;
ii) The judgment and award dated 13.08.2018
passed in MVC No.759/2017 before I Additional District Judge & MACT, Tumakuru, is modified;
iii) The compensation awarded by the tribunal in a sum of Rs.26,62,999/- is enhanced to Rs.49,62,443/-;
iv) All other terms and conditions imposed by the tribunal being left intact;
v) The insurer shall pay the differential enhanced compensation amount with interest @ 6% within a period of six weeks before the tribunal from the date of receipt of a copy of this judgment.
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vi) Registry to send the records to the concerned tribunal;
vii) Since there is a delay of 240 days in preferring the appeal by the claimant, he is not entitled to interest on the enhanced compensation for the said period as per the order dated 24.09.2021;
Sd/-
JUDGE LB