Karnataka High Court
Sri H Chandrappa vs Sri V Srinivas on 14 November, 2017
Bench: B.S.Patil, Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
&
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.No.5355/2015 (MV)
BETWEEN
SRI H.CHANDRAPPA,
S/O HEMLANAIK,
AGED ABOUT 47 YEARS,
R/AT NO.502A,
AMODA VALMARK APARTMENTS,
DODDAKANNANAHALLI,
BANNERGHATTA ROAD,
BANGALORE-560 083. ... APPELLANT
(By Sri GURUDEV PRASAD K.T., ADV.)
AND
1. SRI V.SRINIVAS,
S/O VENKATARAMASETTY,
NO.607, BEHIND IPP HOSPITAL,
HANUMANTHANAGAR,
KANAKAPURA TOWN,
RAMANAGAR DISTRICT.
2. UNITED INDIA INSURANCE CO. LTD.,
RVR COMPLEX,
BEHIND KSRTC BUS STAND,
I FOOR, RAMANAGARAM,
2
RAMANAGAR DISTRICT,
BY ITS DIVISIONAL MANAGER. ... RESPONDENTS
(By Sri ANUP SEETHARAMA RAO, ADV. FOR
Sri B.C.SEETHARAM RAO, ADV. FOR R2)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:06.04.2015 PASSED IN MVC
NO.5977/2013 ON THE FILE OF THE XXII ADDITIONAL
SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL
CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
ARAVIND KUMAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This is a claimant's appeal for enhancement of compensation, not being satisfied with the quantum of compensation awarded by Motor Accidents Claims Tribunal, Bengaluru in MVC No.5977/2013 on 06.04.2015.
2. Appellant herein filed a claim petition under Section 166 of Motor Vehicles Act, 1988 seeking compensation of ` 50 lakhs contending that on 11.08.2013 at about 4.00 p.m. he was proceeding to his 3 residence after finishing his work at factory on his motor cycle and when he reached near Sanjeevanayakanadoddi, BWSSB Road, Harohalli, the car bearing registration No.KA-17-M-2286 driven by its driver in a rash and negligent manner, came from opposite direction and dashed against the motorcycle and as a result of which, claimant fell down and sustained multiple injuries.
3. Owner and insurer of the car filed their written statements by denying the averments made in the claim petition. Insurer contended that there has been delay of 11 days in lodging the complaint and cause of the accident had not been mentioned in the wound certificate. Hence, they sought for dismissal of the claim petition.
4. Claimant got himself examined as P.W.1 and also examined three witnesses including the Doctor who treated him and in all, got marked 42 documents as Exs. P-1 to P-42. One official of the insurance company was examined as R.W.1 and through him, the policy issued to 4 the offending vehicle was got marked as Ex.R-2 and the medico-legal register as Ex.R-1.
5. Tribunal, after evaluating the evidence, has allowed the claim petition in part and has awarded total compensation of ` 11,67,523/- under the following heads:
Sl. Heads Amount
No. `
1 Pain and suffering 25,000/-
2 Medical expenses 2,91,523/-
3 Food and nourishment 5,000/-
expenses
4 Conveyance charges 10,000/-
5 Attendant charges 30,000/-
6 Loss of future earning 7,56,000/-
7 Future medical expenses 25,000/-
8 Loss of amenities of life 25,000/-
Total 11,67,523/-
6. It is the contention of Mr. Gurudeva Prasad, learned Advocate appearing for claimant that tribunal has awarded abysmally very low compensation under all heads and it committed a serious error in not awarding compensation towards "loss of income during treatment period". He would also submit that in view of the evidence of the Doctor disclosing the whole body disability at 28%, 5 tribunal was not justified in construing the same at 15%. Hence, he prays for suitable modification of the award.
7. Per contra, Sri Anup Seetharama Rao, learned Advocate appearing on behalf of Sri B.C.Seetharama Rao for second respondent - insurer would not only contend that compensation awarded by the tribunal is on the higher side but also urges that in the absence of any evidence towards future medical expenses, tribunal could not have awarded compensation of ` 25,000/- towards future medical expenses. Hence he prays for dismissing the appeal.
8. Having heard the learned Advocates appearing for parties, on perusal of the records secured from the tribunal and after bestowing our careful attention to the rival contentions raised, we are of the considered view that following points would arise for our consideration:
(1) Whether compensation awarded by the tribunal is just and reasonable 6 or requires modification by enhancing the same?
(2) What order?
9. Since there is no dispute with regard to the occurrence of the accident on 11.08.2013, claimant having sustained injuries in the said accident, issuance of policy to the offending vehicle and same being valid and in force as on the date of accident, these aspects are not discussed in this appeal as it would be repetition of facts. RE: POINT NO.(1):
10. As could be seen from the wound certificate - Ex.P-4, claimant had sustained (1) fracture of mid shaft right femur and (2) closed fracture right lower tibia and fibula which are undisputedly grievous injuries. Immediately after the accident, claimant was shifted to Apollo Hospital, Bannerghatta road, Bengaluru and was an inpatient in the said hospital from 11.08.2013 to 18.08.2013. He underwent surgery for 'closed reduction internal fixation with intramedually interlocking nailing of 7 right femur and right tibia'. Exs.P-7 and P-8 are two discharge summaries issued by the hospital. Thus, on two occasions claimant has been admitted to the hospital as an inpatient and has undergone surgery due to which he has suffered pain and agony and as such, compensation awarded by the tribunal in a sum of ` 25,000/- is marginally on the lower side and we deem it proper to award additional compensation of ` 25,000/- under this head.
11. In order to establish his occupation as Production Manager at Origeal (P) Limited, Harohalli Industrial Area drawing salary of ` 1,07,300/- per month, claimant has produced salary slip of June, 2013 as per Ex.P-11 and P-12 for the month of July, 2013. Ex.P-13 is the ICICI Bank statement (S.B.A/c) which discloses the monthly salary transferred to the account of the claimant. Ex.P-14 is the copy of Form No.16 namely, TDS certificate issued by the employer of the claimant. On the ground that claimant was working in a private firm, the Tribunal has not accepted his salary. It has inferred that ` 8 30,000/- per month should be construed as income of the claimant. Though claimant has examined the Manager - HR of the company where he was working as P.W.3, the fact remains that claimant was a retired Defence personnel and would be definitely drawing pension which fact has not been disputed by him and as such, tribunal was justified in arriving at a conclusion that income of the claimant had to be taken at ` 30,000/- per month. Hence, we are not inclined to reverse or modify the said finding recorded by the tribunal.
12. The Doctor who has been examined as P.W.4 is no doubt the Doctor who did not treat him but undisputedly, he is a consultant Orthopedic Surgeon who clinically and radiologically examined the claimant on 16.11.2014 and opined the whole body disability at 28%. In the cross examination dated 22.11.2014, nothing worthwhile has been elicited to disbelieve the evidence of Doctor - P.W.4. In fact, in his examination - in - chief, he has opined that claimant could not walk without support and would need assistance to climb up and down and 9 would also face difficulty to stand on both legs for long time. He has also opined that claimant cannot sit cross legged, squat on the floor and would be unable to do any hard work.
13. Thus, taking into consideration the said medical evidence available on record and medical records produced by the claimant namely, case sheet, CT scan reports, radiological reports, x-rays, etc., it cannot be held that assessment of whole body disability suffered by the claimant at 28% is excessive.
14. That apart, there is no other material which has been placed by the respondents to establish that disability suffered by the claimant would be less than 28%. In other words, neither the insured nor the insurer have examined any Doctor to establish that the opinion furnished by P.W.4 has to be discarded. In that view of the matter, we are of the considered view that disability suffered by the claimant will have to be construed at 28% and not 15% as held by the tribunal.
10
15. In the light of the aforestated discussion, compensation towards 'loss of future income' requires to be recomputed by construing the income of the claimant at ` 30,000/- and disability at 28%. Thus, compensation that becomes payable towards 'loss of future income' would be 28% of ` 30,000/- i.e., ` 8,400 x 12 x 14 = ` 14,11,200/-.
16. In the absence of any claim and there being no evidence with regard to future medical expenses, we are of the considered view that tribunal erred in awarding a sum of ` 25,000/- towards future medical expenses. Hence, the same requires to be disallowed.
17. Compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference.
Thus, re-computed compensation to which the claimant would be entitled to is as follows: 11
Sl. Heads Amount
No. `
1 Pain and suffering 50,000/-
2 Medical expenses 2,91,523/-
3 Food and nourishment 5,000/-
expenses
4 Conveyance charges 10,000/-
5 Attendant charges 30,000/-
6 Loss of future earning 14,11,200/-
7 Loss of amenities 25,000/-
Total 18,22,723/-
Hence, we proceed to pass the following:
JUDGMENT
(i) Appeal is hereby allowed in part.
(ii) Judgment and award dated 06.04.2015 passed by the Motor Accident Claims Tribunal, Bengaluru, in M.V.C.No.5977/2013 is hereby modified, and in substitution to the award passed by the Tribunal awarding a sum of Rs.11,67,523/-, a sum of Rs.18,22,723/- is hereby awarded with interest @ 6% p.a. from the date of petition till date of payment/deposit, whichever is earlier.
(iii) Second respondent - Insurer is directed to deposit the enhanced compensation before the 12 jurisdictional Tribunal within six weeks from the date of receipt of a copy of this judgment.
(iv) The order for fixed deposit as made by the tribunal shall hold good for the modified compensation also.
(v) Registry is directed to draw the decree accordingly and to transmit the records to jurisdictional tribunal forthwith.
(vi) No order as to costs.
SD/-
JUDGE SD/-
JUDGE KK/sp