Karnataka High Court
Branch Manager, New India Assurance ... vs Shashidhara S/O Amaresh Gouda Ors on 7 November, 2012
Bench: K.Bhakthavatsala, C.R.Kumaraswamy
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 07TH DAY OF NOVEMBER, 2012
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MR. JUSTICE C R KUMARASWAMY
MISCELLANEOUS FIRST APPEAL NO.31350/2011(MV-DB)
BETWEEN:
BRANCH MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
BOMMASANDRA BRANCH,
THROUGH ITS BRANCH MANAGER,
THE NEW INDIA ASSURANCE CO.LTD.
RAICHUR,
NOW REPRESENTED BY ITS DEPUTY MANAGER,
MOTOR THIRD PARTY HUB OFFICE,
II FLOOR, SRINATH COMPLEX,
NEW COTTON MARKET,
HUBLI 580 029. .....APPELLANT
(BY SMT. SHASHIKALA JAHAGIRDAR, ADVOCATE)
AND
1. SHASHIDHARA
S/O AMARESH GOUDA
AGE 29 YEARS,
OCC: EXECUTIVE IN
2
BIOCON PHARMACEUTICAL CO.
BANGALORE, R/O STATION ROAD,
RAICHUR.
2. MUKUNDA
S/O SIDDAPPA, MAJOR,
OCC: DRIVER OF VEHICLE
BEARING REG. NO. KA-51-1526
R/O C/O R. AMARENDRA
S/O LINGAMA NAIDU,
SRI. VENKATESHWARA TRADERS,
SHOP NO.2, BAGYALAKSHMI PLAZA,
MANGAMMANAPALYA MAIN ROAD,
NEELAKANTESHWARA LAYOUT,
BOMMANAHALLI POST,
BANGALORE.
3. AMARENDRA
S/O R. LINGAMA NAIDU,
SRI. VENKATESHWARA TRADERS,
SHOP NO.2 BAGYALAKSHMI PLAZA,
MANGAMMANAPALYA MAIN ROAD,
NEELKANTESHWARA LAYOUT,
BOMMANAHALLI POST,
BANGALORE. .....RESPONDENTS
(SRI. BASAVARAJ R.MATH, ADV. FOR C/R-1(AB)
NOTICE TO R2 SD-UNREPRESENTED,
NOTICE TO R3 D/W V/C/O DATED 17.04.2012)
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 01.04.2011 PASSED IN
MVC NO. 754/2010 ON THE FILE OF THE MOTOR
ACCIDENT CLAIMS TRIBUNAL AND FAST TRACK COURT-I
AT RAICHUR, PARTLY ALLOWING THE CLAIM PETITION
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AND AWARDING COMPENSATION OF `17,33,561/- WITH
INTEREST AT 6% P.A.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, DR. K. BHAKTHAVATSALA, J., DELIVERED THE
FOLLOWING:
JUDGMENT
Appellant/Insurance Company is before this Court challenging the judgment and award dated 01.04.2011 made in MVC No. 754/2010 on the file of the MACT and Fast Track Court-I at Raichur .
2. Learned counsel for appellant-Insurance Company Ltd. Submits that the claimant is still working as an Executive in Biocon Pharmaceutical Company, Bangalore and there is no loss of future earnings, but the Tribunal has erred in awarding compensation of Rs. 11,71,707/-. Therefore, she submits that the impugned judgment and award may be modified and compensation amount may be reduced by Rs. 11,71,707/-.
3. We have perused the LCR.
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4. It is the case of the respondent No.1-claimant that he was 28 years old working as an executive in Biocon Pharmaceutical Company, Bangalore on a salary of Rs. 23,000/- per month. It is stated that on 17.08.2010 at about 6.30 PM., when the claimant was returning on bike with his colleague as pillion rider and when he was near Veerasandra Junction, Van bearing registration No. KA-51-1526 came from behind in a rash and negligent manner and dashed against the bike, as a result of it, he fell down and sustained grievous injuries. He was admitted to Sparsh Hospital, Bangalore wherein he took treatment for a period of 3 months. He underwent surgery. He has taken treatment in various other hospitals, but resulted in permanent disability. It is case of the claimant that he has spent Rs. 7 Lakhs towards medical expenses. He filed claim petition under Section 166 of Motor Vehicles Act, 1988, against the driver, owner and Insurer of the van, claiming compensation in all amounting Rs. 1,40,00,000/- with costs and interest. In support of the case of the claimant, he has got himself 5 examined as PW1, Dr. Gowrishankar, Consultant Orthopedic Surgeon of Sparsh Hospital as PW2, one Smt. Sudha Victor as PW3 and got marked 31 documents. In rebuttal, one Anil kumar, Senior Branch Manager of respondent No.3 was examined as RW1 and got marked nine documents at Exs.R1 to 9 viz., salary particulars, Copy of Policy, Notices, Postal receipts and acknowledgements. The tribunal has held that accident occurred due to rash and negligent driving of the van by its driver. Appellant/Insurance Company is before this Court contending that the Tribunal has awarded exorbitant compensation in favour of the respondent No.1-claimant. The tribunal has fixed income of the claimant at Rs.22,091/- and permanent disability of the claimant at 22% of the whole body. The tribunal applied multiplier 17 while determining the compensation under the head of loss of future earnings.
5. The tribunal has awarded the compensation in favour of the claimant as under:
1. Pain and sufferings :` 80,000/-6
2. Medical Expenses : ` 3,72,672/-
3. Loss of earnings during The period of treatment (22,091x2) : ` 44,182/-
4. Loss of future earnings : ` 11,71,707/-
5. Future Medical expenses :` 40,000/-
6. Loss of amenities :` 15,000/-
7. Loss of Marriage prospects :` 10,000/-
_______________ TotaLtOTotal TotaLtO ` 17,33,561/-
_______________
6. As per Ex.P12-discharge summary issued by the Sparsh Hospital, the claimant has sustained fracture of femur, public rami and internal degloving of skin of let thigh with hemotoma. The claimant underwent surgery by Interlocking nailing of right femur on 18.08.2010, wound debridement and VAC dressing was done on various dates namely 25.08.2010, 28-08-2010, 01.09.2010 and 17.09.2010. There is no challenge to the quantum of compensation awarded towards medical expenses of Rs. 3,72,672/-. As per Ex.P14 disability certificate issued by Orthopaedic Surgeon, Sparsh Hospital, percentage 7 of the disability is to the extent of 16% and 10% with reference to limbs. Permanent disability cannot be 26% to the whole body and permanent disability can be fixed at 10% of the whole body. Ex.P22 is the letter of appointment. Gross salary of Rs.18,615/- without conveyance allowance, employer's contribution towards PF, EPF, Gratuity and Canteen Costs. The Tribunal has taken gross salary at Rs. 22,091/- per month. According to the Ex.P22, the claimant was appointed as an executive on probation for a period of six months. The claimant has not produced pay slip and details with regard to deduction towards income tax. Ex.R2 is the letter written by the Insurance Company to the employer of the claimant seeking particulars regarding date of appointment, salary particulars, deductions, leave availed etc. Ex.R1 is the reply given by the claimant's employer enclosing copy of the curriculum and copy of the pay slip. According to the details, the claimant was appointed on 04.01.2010 as an executive, Gross salary for the month of July-2010 was Rs.20,115/-. Employer has deducted sum of 8 Rs. 876/- towards EPF, Rs.100/- towards Food and Rs.200/- towards Professional Tax. If sum of Rs. 200/- paid towards PF is deducted, net salary of the claimant comes to Rs.19,915/-, but the Tribunal has taken his gross salary of Rs.22,091. The claimant is on leave without pay from 18.08.2010. The accident occurred on 17.08.2010. According to the employer's reply to the letter of the Insurance Company, the claimant is still on leave without pay that is four months 22 days. The Tribunal has awarded compensation towards loss of earnings during treatment for a period of two months. The claimant has not adduced any evidence after adducing evidence of RW1 and marking documents as Exs.R1 to R9. There is no material placed on record to show that he is unable to work or that he was terminated from his service. However, we hold that the claimant is entitled for compensation towards loss of salary for 5 months. We hold that the Tribunal fixing the permanent disability of 26% to the whole body and awarding compensation of Rs.11,71,707/- is not correct on the other 9 hand the claimant is entitled for adequate compensation towards loss of amenities and marriage prospectus etc.
7. In our view, the claimant is entitled for compensation as under:
1. Pain and sufferings : `1,00,000/-
2. Medical Expenses(Past and Future) : ` 4, 00,000/-
3. Loss of earnings during the period of treatment and rest (19915x5) : ` 99,575/-
4. Attendance, conveyance, special incidental charges : ` 50,000/-
5. Loss of amenities, marriage prospectus and expectation of life : `5,00,000/-
_______________ Total ` 11,49,575/-
Rounded off to ` 11,50,000/-
______________
Thus, respondent No.1-claimant is entitled for compensation of Rs.11,50,000/- as against Rs.17,33,561/- awarded by the Tribunal.
8. In the result, we pass the following order: 10
Appeal is partly allowed holding that the respondent No.1 is entitled for compensation amount of ` 11,50,000/- as against Rs. 17,33,561/- awarded by the Tribunal along with costs and interest at the rate of 6% per annum from the date of petition till realization. Accordingly, the impugned Judgment and Award are modified.
Registry is directed to transmit the amount of Rs.10,00,000/- and statutory amount in deposit to the Tribunal for disbursement as per the impugned award.
Appellant-Insurance company is directed to deposit the balance compensation amount with the Tribunal within two months from today.
Sd/-
JUDGE Sd/-
JUDGE JTR