Karnataka High Court
Girish vs The Regional Manager on 20 January, 2020
Author: Alok Aradhe
Bench: Alok Aradhe
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MFA NO. 8665 OF 2012(MV-I)
BETWEEN:
Girish,
S/o. Kullaiah,
Aged about 34 years,
R/at No.5, 15th Cross,
Harikrupa Building,
Sunkadakatte,
Bengaluru -560 091.
...APPELLANT
(By Sri. M. Anil Kumar, Advocate)
AND:
1. The Regional Manager,
Bajaj Allianz General Insurance Co., Ltd.,
No.105/107A, Cears Plaza,
First Floor, 136, Residency Road,
Bengaluru -560 025.
2. Mohan B. Shetty,
S/o. Babu Shetty, Major,
Door No. B-57, Near Patel's House,
Iddya, Surathkal,
Mangalore -575002.
...RESPONDENTS
2
(By Smt. H.R. Renuka, Advocate for Respondent No.1;
Sri. Prasanna Shetty, Advocate for Respondent No.2)
This MFA is filed under Section 173(1) of MV Act
against the Judgment and Award dated: 23.02.2012
passed in MVC No.940/2010 on the file of the XXII
Additional Small Causes 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 hearing, this day, Ravi
V. Hosmani J., delivered the following:
JUDGMENT
This is an appeal filed under Section 173 of MV Act by the claimant aggrieved by the Judgment and award passed in MVC No.94/2010 dated 23.02.2012 seeking for enhancement.
2. When the above appeal was taken up for hearing, the counsel for the respondent-Insurance Company produced a copy of decision of this Hon'ble Court in MFA No. 5130/2012 and connected matters, disposed off on 04.02.2016 in respect of other claims arising out of the same accident wherein, the issue regarding negligence between the two vehicles, as held by the Motor Accident Claims Tribunal (hereinafter 3 referred to as 'MACT' for short) at 50% each was affirmed. Therefore, the only issue that requires to be considered in this appeal is whether the claimant appellant is entitled for enhancement of compensation.
3. The brief facts leading to the appeal are that on 05.10.2009 the appellant Girish s/o. Kullaiah was traveling in a Tata sumo bearing No. KA02 D 6982 from Magadi towards Bengaluru. At 12.00 a.m., when they were on the way, one lorry bearing No. KA-19-AB-579 came in a rash and negligent manner from opposite direction and dashed against the Tata Sumo due to which it fell down a bridge resulting in grievous injuries to all its passengers including the appellant. For the said injuries the appellant filed MVC No.940/2010 seeking for a compensation of Rs.25.00 lakhs from the owner and insurer of the lorry. After service of notice and contest the MACT passed an award. Computation of the compensation as follows:
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Pain and Suffering Rs.1,00,000/- Medical Expenses Rs.3,95,000/-
Loss of earnings during the period Rs. 60,000/- of treatment Conveyance, attendant and Rs. 50,000/- nourishment expenses Loss of future earnings Rs.1,92,000/- Future medical expenses Rs. 60,000/- Loss of amenities and enjoyment of Rs. 25,000/-
life
Total Rs.8.82.000/-
The Tribunal was pleased to hold the issue regarding negligence in equal proportions against the drivers of both the vehicles.
4. The main grounds urged by the counsel for the appellant seeking for enhancement are that though the appellant was working as a Manager with ASB Motors on a monthly income of Rs.10,000/- p.m. the MACT has erroneously taken the same at Rs.5,000/- p.m. Further though the Doctor assessed neurological disability to the whole body at 25% and intellectual disability at 33% the MACT has considered loss of earning capacity at 20% only which is on the lower side. The award under other heads is also grossly on the lower side.
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5. For considering the claim for enhancement, it is seen that in support of the claim, the appellant examined himself as PW1 and got marked the FIR, accident spot sketch, panchanama, IMV report and charge sheet as Ex.P1 to P5 respectively.
6. The Tribunal while assessing the compensation took note of injuries suffered by the claimant as per Ex.P6-wound certificate issued by BGS Hospital Benglauru as follows:
1. Traumatic head injury with CLW 2x3 cms.
and 2x6 cms. on occipital area with unconsciousness -with internal bleeding.
2. Fracture of multiple ribs on the right side of the chest.
3. Fracture of transverse process of L3 and L4 vertebrae.
4. Right lung contusions.
5. Right ear bleed with right temporal bone fracture.
7. Immediately after the accident, the appellant was taken to NIMHANS Hospital and later shifted to BGS Hospital, Bengaluru and treated as inpatient from 06.10.2009 to 06.11.2009 and again from 26.11.2009 to 03.12.2009. He underwent surgery and took follow up 6 treatment. It was claimed by the appellant that he was not able to continue his work as Manager in ASB Motors for more than a year due to the neurological disabilities and intellectual disability. In support of his case, the appellant also examined one Dr.Arun L. Naik as PW5 who is a Neurosurgeon from BGS Hospital Bengaluru. The said Doctor referring to Ex.P41 to 43 stated that the neurological disability of the appellant is assessed at 25% to the whole body and also assessed the intellectual disability at 33%. The Tribunal, by taking notional income of the appellant at Rs.5,000/-p.m. and considering loss of earning capacity at 20% awarded a total compensation of Rs.8,82,000/- with interest at 6%.
8. The Tribunal while assessing the income of the appellant has stated that due to the non-examination of the employer and the signatory of the salary certificates at Exs.P13 and P14, the income mentioned therein could not be considered and therefore took the same on notional terms at Rs.5,000/- p.m. In the absence of any evidence in support of the salary 7 certificate, the Tribunal has taken the income at Rs.5,000/- p.m. which appears to be on the lower side considering the fact that he was holding driving license also. The same if taken at Rs.6,000/-p.m. would meet the ends of justice. With regard to loss of earning capacity the Tribunal, on a cursory examination of the evidence assumed it to be at 20%. What is required to be determined is whether the neurological disability and intellectual disability have affected the earning capacity of the appellant and if so, to what extent? Since it has been elicited in the cross examination of the doctor as PW5, that he is not competent to say regarding the psychological disabilities suffered by the appellant, there is no sufficient evidence available and the assessment of the loss of earning capacity at 20% by the MACT appears to be just and proper.
9. Accordingly, the calculation of loss of earning would be Rs.6,000 x 20% = Rs.1,200. Since the age of the claimant as on the date of accident was 32 years, the multiplier applicable would be 16. Therefore, the future 8 loss of income would be Rs.1,200x12x16 = Rs.2,30,400/- as against Rs.1,92,000/- awarded by the MACT. The Tribunal has held that the appellant was not able to work for a period of one year during treatment. Therefore, loss of earning during laid up period is Rs.6,000x12 =Rs.72,000/-. The Tribunal has also awarded a sum of Rs.25,000/- towards loss of amenities despite the fact that the appellant suffered fractures of skull and also transverse process of L3 and L4 vertebrae. In addition, he has also suffered some neurological and intellectual disability, therefore towards loss of amenities the compensation awarded is reassessed at Rs.50,000/-.
10. Insofar as the award of Rs.50,000/- towards conveyance, attendant charges, and nourishment, it is noticed that the appellant was under treatment for a prolonged period. Therefore, it is deemed proper to award it at Rs.75,000/- instead of Rs.50,000/-. The award under the other heads is just and proper and left undisturbed. In the result, the issue is answered partly in affirmative. Needless to state that the said enhanced 9 amount of compensation shall carry an interest at the rate 6% p.a. from the date of petition till the payment is made.
To the aforesaid extent the award passed by the claims Tribunal is modified. Accordingly, the appeal is disposed off.
Sd/-
JUDGE Sd/-
JUDGE BVK