Karnataka High Court
Sri Himanshu Nairi vs The Md Vrl Logistics Ltd on 3 December, 2021
Author: P. S. Dinesh Kumar
Bench: P. S. Dinesh Kumar
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE P. S. DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.2915 OF 2019 (MV)
BETWEEN
SRI HIMANSHU NAIRI
AGED ABOUT 25 YEARS
S/O ANIL NAIRI
R/O FLAT NO.1403, GEMINI
A WING, HIRANANDANI MEADOWS
PAWAR NAGAR, THANE WEST-400 610
PRESENTLY RESIDING AT
C/O SHIVAKUMAR
KARKADA VILLAGE
SALIGRAMA POST
UDUPI Taluk AND DISTRICT-576 101.
...APPELLANT
(BY SRI T P MUTHANNA, ADVOCATE)
AND
1. THE MD VRL LOGISTICS LTD
REGD. AND ADMN OFFICE NH-4
BENGALURU ROAD
VARUR HUBLI-580 020.
2. SRI ALLABHAKSHA
AGED ABOUT 40 YEARS
2
S/O SAYYED SAB HAVALDAR
R/O GANDHINAGAR
DHARWAD-580 001.
3. THE NEW INDIA ASSURANCE CO. LTD
SRI RAM ARCADE
OPP. HEAD POST OFFICE
UDUPI-576 101.
...RESPONDENTS
(BY SRI ARAVIND M NEGLUR, ADVOCATE FOR R1;
SRI K POORNABODHA RAO, ADVOCATE FOR R3 (VC);
VIDE ORDER DATED 18.12.2020 NOTICE TO R2
IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL UNDER SECTION
173(1) OF MOTOR VEHICLE ACT AGAINST THE JUDGMENT AND
AWARD DATED 28TH SEPTEMBER, 2018 PASSED IN MVC NO.190
OF 2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, UDUPI,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN THIS MISCELLANEOUS FIRST APPEAL ARGUMENTS
BEING HEARD, JUDGMENT RESERVED, COMING ON
"PRONOUNCEMENT OF ORDERS", INDIRESH J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the claimant, challenging the judgment and award dated 28th September, 2018 in MVC No.190 of 2017 on the file of the Additional Motor Accident Claims Tribunal and Principal Senior Civil Judge, Udupi (for short 3 hereinafter referred to as 'Tribunal'), seeking enhancement of compensation.
2. For the sake of convenience, parties in this appeal are referred to with respect to their status before the Tribunal.
3. For the purpose of adjudication of this appeal, the relevant facts are that on 28th September, 2016, claimant was travelling in VRL Bus bearing registration No.KA-25/C-9173 from Mumbai to Mangaluru on National Highway-66 and due to the rash and negligent driving of the Bus by its driver, the bus toppled and as a result of the said accident, the claimant sustained grievous injuries, particularly, amputation of left upper limb. Hence, the claimant filed MVC No.190 of 2017 on the file of the Tribunal seeking compensation.
4. On service of notice, the first and third respondents entered appearance and filed detailed written statement denying the averments made in the claim petition. The third respondent- Insurance Company, however, admitted the policy in favour of the vehicle in question and contended that the same is subject to the terms and conditions stipulated therein. The Tribunal, on 4 the basis of the pleadings on record, formulated issues for its consideration. In order to prove the claim petition, claimant was examined as PW2 and two Doctors as PW3 and PW4. Claimant has produced 30 documents and same have been marked as exhibits P11 to P30. on the other side, Insurance Company has marked Exhibit R1-Insurance Policy, by consent. The Tribunal, after considering the material on record, by its judgment and award dated 28th September, 2018, allowed the claim petition in part holding that the claimant is entitled for compensation of Rs.21,04,190/- with interest at the rate of 6% per annum from the date of petition till realisation. Respondent No.3-Insurance Company was directed to satisfy the award. Being not satisfied with the quantum of compensation awarded by the Tribunal, the claimant has presented this Appeal.
5. We have heard Sri T.P. Muthanna, learned counsel appearing for the appellant; Sri Aravind M. Neglur, learned Counsel appearing for Respondent No.1; and Sri K. Poornabodha Rao, learned counsel appearing for respondent No.3. 5
6. Sri T.P. Muthanna, learned counsel appearing for the appellant contended that the claimant has sustained grievous injuries and suffered amputation of the left upper limb. He contended that the claimant examined PW3-Dr. Ullas Shetty, who has deposed that the claimant underwent skin grafting on 30th November, 2016 and suffered 75% disability as per Exhibit P12. He further contended that claimant has examined PW4- Dr.Deepak Rai, who has deposed that the claimant was advised prosthetic upper limb and the same requires replacement once in 3-4 years and would cost around Rs.3.00 lakh. Accordingly, learned counsel submitted that compensation awarded by the Tribunal towards future medical expenses is on the lower side, which requires to be enhanced in this appeal. Emphasising on the injury sustained by the claimant, Sri T.P. Muthanna argued that the award made by the Tribunal under the heads 'pain and suffering' and 'loss of amenities' also require enhancement in this appeal. Inviting the attention of the Court to the income of the claimant as on the date of the accident, the learned counsel for the appellant argued that the award made by the Tribunal under the head loss of future income is contrary to records which 6 requires to be modified by awarding just compensation to the claimant.
7. On the other hand, Sri K. Poornabodha Rao, learned counsel appearing for the Insurance company invited attention of the Court to Exhibits P24 and P25 viz. Income-tax returns and Bank Statement, and argued that the Tribunal has rightly taken the notional income of the claimant at Rs.14,000/- per month and same is just and proper, which does not call for interference in this appeal. He further contended that Tribunal, after appreciating the entire material on record, awarded just compensation to the claimant as required under Section 166 of the Motor Vehicles Act, 1988 and thus, sought to justify the impugned judgment and award.
8. In the light of the rival submissions made by the learned counsel appearing for the parties, we have carefully considered the finding recorded by the Tribunal and perused the records. It is not in dispute that the claimant sustained injury on account of road traffic accident occurred on 28th September, 2016. In order to discern the actual income of the claimant, we have noticed in 7 the claim petition that the occupation of the claimant is shown as Construction worker. However, during the proceedings of the case, claimant claims to be a Choreographer and he has also produced Exhibit P22-Partnership Deed, Exhibits P24-Income tax returns and Exhibit P25-Bank statement. Exhibit P22- Partnership Deed contains only one page. Exhibit P24 is the Income tax Returns for the Assessment Year 2016-2017 which discloses that the gross annual income of the claimant was Rs.2,69,806/-. Except the returns for the year 2016-2017, the claimant has not produced the returns filed for previous years and hence the same cannot be the basis to arrive at the conclusion that the claimant had income as claimed in the claim petition. The Bank statement produced at Exhibit P25, is for the period between 01st January, 2016 and 19th December, 2016. On re-appreciation of these documents, we do not find any cogent material to arrive at the conclusion that the claimant was earning handsome income being a Choreographer. We have also noted that in the claim petition, the claimant has stated that he was doing Construction work and perusal of the statement of Axis Bank would indicate that there were no sufficient proceeds 8 from the said occupation and in that view of the matter, the finding recorded by the Tribunal taking the notional income of the claimant at Rs.14,000/- per month is just and proper. Perusal of the evidence of PW4 would indicate that the claimant has suffered disability in an extent of 75% towards left upper limb and as such, the Tribunal had rightly taken the disability at 40% to the whole body. Claimant was aged about 24 years at the time of the accident and as per the law declared by the Hon'ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298, the appropriate multiplier is 18 and the loss of future income would be Rs.12,09,600/- (Rs.14,000/- x 12 x 18 x 40%). Therefore, we are of the view that the claimant is not entitled for enhancement under the head loss of future income.
9. Taking into consideration the nature of injuries sustained by the claimant as per Exhibit P12-Disability certificate, we are of the view that the compensation awarded by the Tribunal towards pain and suffering, loss of income during 9 laid-up period, medical expenses and conveyance, food, nourishment and attendant charges are just and proper and do not call for any interference in this appeal. However, the submission made by the learned counsel appearing for the appellant with regard to interference in respect of future medical expenses and loss of amenities is to be accepted. In this regard, we have carefully considered the evidence of PW4, who has deposed that the artificial upper limb costs around Rs.3.00 lakh and it should be replaced once in 3-4 years. However, in the absence of producing any material in support of the same, taking into account the grievance of the claimant relating to award of compensation under future medical expenses, we are of the view that the claimant is entitled for another sum of Rs.3,00,000/- under the said head.
10. In order to assess the loss of amenities, we notice that the claimant was aged 24 years at the time of the accident and by looking into the treatment taken by the claimant as per discharge summary-Exhibit P13, we are of the view that claimant is entitled for another sum of Rs.50,000/- under the 10 said head. It is not in dispute that the claimant sustained amputation of left upper limb and he was bachelor at the time of the accident and therefore, in the ends of justice, we are of the view that the claimant is entitled for amount of Rs.50,000/- towards loss of marriage prospects. Hence, the claimant is entitled for the compensation as follows:
Head Amount in Rs. Pain and Suffering 1,50,000.00 Loss of future income 12,09,600.00 Loss of income during laid-up period 84,000.00 Medical expenses 2,10,590.00 Future Medical Expenses 6,00,000.00
Conveyance, food, nourishment and attendant 50,000.00 charges Loss of amenities 1,50,000.00 Loss of Marriage prospects 50,000.00 Total 25,04,190.00 In the result, we pass the following:
ORDER
1. Appeal is allowed in part;
2. The judgment and award dated 28th September, 2018 passed in MVC No.190 of 2017 by the Tribunal is modified holding that the claimant is 11 entitled for compensation of Rs.25,04,190/- as against Rs.21,04,190/- awarded by the Tribunal.
The enhanced compensation shall carry interest at the rate of 6% per annum from the date of petition till realisation.
3. The Insurer shall deposit the compensation amount of Rs.25,04,190/- excluding the amount already paid/deposited within eight weeks from the date of receipt of a copy of this judgment.
4. The disbursement of the compensation amount shall be in terms of the award of the Tribunal. No costs.
Sd/-
JUDGE Sd/-
JUDGE lnn