Karnataka High Court
The Divisional Manager vs Sri.Rajesh Selvaraju on 16 February, 2016
Author: N.K.Patil
Bench: N.K.Patil
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2016
PRESENT
THE HON'BLE MR.JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE PRADEEP D.WAINGANKAR
M.F.A.NO.2034 OF 2014(MV)
BETWEEN:-
THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE
COMPANY LIMITED
DIVISIONAL OFFICE, No.484/2
SABHU CHINNAMMA BUILDING
II FLOOR, SDM TEMPLE ROAD
KUMBARA STREET CROSS
OPP: SYNDICATE BANK
K.R. PURAM,
BANGALORE - 560 036.
BY REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD, HUDSON CIRCLE
BANGALORE - 56 027.
BY IT'S MANAGER.
... APPELLANT
(BY SRI: O. MAHESH, ADVOCATE)
AND:-
1. SRI. RAJESH SELVARAJU
AGED ABOUT 41 YEARS
S/O P. SELVARAJU
R/O. No.909, I CROSS, I STAGE,
INDIRANAGAR,
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BANGALORE - 560 038.
2. SRI. APRAKASH,
MAJOR
No.106, II CROSS, I MAIN
BYAPPANAHALLI EXTN.
BANGALORE - 560 038.
... RESPONDENTS
(BY SRI: K.T. GURUDEV PRASAD, ADVOCATE FOR R-1
R-2 SERVED & UNREPRESENTED)
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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED:04.01.2014 PASSED
IN MVC NO.4402/2010 ON THE FILE OF THE 17TH
ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT,
MAYO HALL UNIT, BANGALORE, AWARDING A
COMPENSATION OF RS.2,58,19,359/- WITH INTEREST @
6% P.A. FROM THE DATE OF PETITION TILL PAYMENT OF
ENTIRE COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 01.12.2015 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, PRADEEP D.
WAINGANKAR J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the appellant M/s. United India Insurance Company India Limited is against the judgment and award dated 4.1.2014 in MVC No.4402/2010 on the file of Addl. Motor Accident Claims Tribunal and XVII Additional Court of Small Causes, Mayohall Unit, Bangalore, whereby the tribunal allowed the claim petition filed under section 166 of the M.V. Act awarding a total compensation of -3- Rs.2,58,19,359/- together with 6% p.a. interest from the date of the petition till the date of payment from the appellant.
2. On 6.3.2010, at about 6.50 p.m., the respondent No.1/claimant-Rajesh Selvaraju was proceeding on his motor cycle bearing registration No.KA-03-EW-9362 on Krishna Temple road near Sony Service station, Indiranagar, Bangalore. At that time, a car bearing registration No.KA-03- ME-1530 insured by the appellant came in rash and negligent manner and dashed against the motor cycle of the claimant. As a result of the impact, the claimant sustained grievous injuries to his right hand and right leg. He was immediately shifted to nearest Chinmaya Mission Hospital followed by Manipal Hospital. He was treated as inpatient in Manipal Hospital on three occasions for a period of about 50 days. Despite best treatment, his right hand was amputated above the elbow. He underwent surgery for the fracture of right tibial condyle. He spent substantial amount for his treatment including for the purchase of robostic artificial limb. He suffered 90% permanent disability of the whole body on account of accidental injuries. He was working as -4- Software Consultant and getting a monthly salary of Rs.45,000/-. Because of 90% permanent disability of the whole body suffered by him, his services have been terminated, he is not able to do any work. He lost his future earnings. Therefore, claiming compensation of Rs.2.00 crores, the claimant filed a claim petition under Section 166 of the M.V. Act against the owner and insurer of the offending car.
3. Both the respondent No.1-insurer and respondent No.2- the owner of the car contested the claim petition. In their statement of objections, they have denied all the material averments made out in the claim petition as to the nature of injuries, nature of treatment, period of hospitalisation, expenditure incurred, avocation of the claimant, monthly income, disability suffered by the claimant, loss of future income etc., apart from denying negligence attributed to the driver of the car and hence both the respondents have sought for dismissal of the claim petition.
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4. The tribunal framed issues regarding negligence, the compensation for which the claimant is entitled and the liability. The claimant was examined as PW-1, Dr. A.M. Shafiq-a Orthopedic Surgeon from Manipal Hospital was examined as PW-2, one Anjaneya Reddy. T, Manager(H.R.) of the company where the claimant was employed was examined as PW-3, one Anil Kumar and Shashikala M. who were working in the shop wherein the claimant said to have purchased robostic artificial limb were examined as PW-4 and PW-5. Exs-P-1 to P-55 were marked. No evidence was led on behalf of the respondents except producing a notarized copy of VAT registration certificate as per Ex-R1. The tribunal upon appreciation of evidence recorded a finding that the accident and the resultant injuries sustained by the claimant were due to rash and negligent driving of the car in question by its driver. Further, the tribunal awarded a total compensation of Rs.2,58,19,359/- with 6% interest thereon. Out of the total compensation, the tribunal awarded a sum of Rs.1,03,67,500/- towards 'purchase and replacement of artificial limbs', Rs.1,21,50,000/- towards 'loss of future income on account of permanent disability' -6- apart from awarding Rs.19,81,859/- towards 'medical expenses'. The appellant-insurance company is aggrieved by the amount awarded by the tribunal under these three heads which made to prefer this appeal.
5. We have heard Sri. O. Mahesh, learned counsel appearing for the appellant-United India Insurance Company Ltd., and the learned counsel for the respondent No.1- claimant. Perused the records.
6. The submission of the learned counsel for the appellant-insurance company is that the amount awarded by the tribunal under the heads 'medical expenses', 'purchase of artificial limb' and 'loss of future income' is exhorbitant and not based on any accepted norms or any acceptable evidence, there is no justification to award crores of rupees towards 'purchase of artificial limb' and towards 'loss of future income'. It is further argued that PW-2, who is an Orthopedic Surgeon from Manipal Hospital wherein the claimant was treated has not at all spoken about the artificial limb or purchase of artificial limb at a cost of crores of rupees. Further, the amount awarded by the tribunal -7- towards 'loss of future income' is also exorbitant, fantastic and not based on any norms or evidence, much less, acceptable evidence. For all these reasons, the learned counsel sought to set-aside the award.
7. The learned counsel for respondent No.1-claimant on the other hand has argued in support of the judgment and award passed by the tribunal.
The point that would arise for our consideration is:-
"Whether the compensation awarded by the tribunal is exhorbitant ?".
8. Having heard the submission made by both the learned counsel and upon going through the entire material on record, what emerges is that the accident is not in dispute, the fact that the claimant sustained grievous injuries in the accident is also not in dispute. It is also not in dispute that the accident occurred on account of rash and negligent driving of the car by its driver. Even otherwise, the oral evidence of the claimant who has been examined as PW- 1 coupled with the police documents Ex-P1 FIR, Ex-P2 -8- complaint, Ex-P3-charge-sheet, ExP4- spot sketch, Ex-P5 spot panchanama, Ex-P6-IMV report in the absence of any contra evidence is sufficient to hold that the accident occurred on account of total negligence of the driver of the car.
9. Coming to the compensation to be awarded, it is not in dispute that immediately after the accident, the claimant was shifted to nearest Chinmaya Mission Hospital and from there he was shifted to Manipal Hospital. Ex-P10 is the discharge summary issued by Manipal Hospital. Exs-P29 and P30 are other two discharge summaries. From Ex-P10, Ex-P29 and Ex-P30, it is obvious that he was admitted for the first time on 6.3.2010 and discharged on 14.4.2010, for the second time, he was admitted on 2.6.2010 and discharged on 7.6.2010 and for the third time, he was admitted on 7.7.2010 and discharged on 9.7.2010. The discharge summary discloses the following injuries:-
1. Deglowing injury of right elbow with crush component.
2. Right compound Type-III C both bones right forearm compound fracture -9-
3. Type-III B Tibia Condyle fracture right leg.
The evidence of PW-2 Dr. A.M. Shafiq-a Orthopaedic Surgeon in Manipal Hospital would reveal that the claimant sustained the above injuries. Regarding the treatment in the hospital, the evidence of PW-2 reveals as under:-
i) wound debridement+external fixator application+ elbow disarticulation was done under GA on 6.3.2010 the date of the accident;
ii) Wound debridement with medial gastroenemius flap cover for the right knee defect was done under GA on 10.3.2010;
iii) Wound debridement and split skin grafting was done for the right knee under GA on 10.3.2010;
iv) Wound debridement of right arm stump under GA was done on 15.3.2010. Again on 1.4.2010, wound debridement and suturing was done.
The medical records disclose that ultimately, his right hand was amputated above the elbow. The claimant has produced his two photographs. They give a correct idea about the nature and gravity of injuries sustained by him in
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the accident. His right hand above the elbow joint is amputated. His right leg was operated for the fracture of tibial condyle, as evident from the photographs and it is in bad shape.
10. Having regard to the nature of injuries, nature of treatment, period of hospitalization, disability suffered by him, the amount to Rs.1,00,000/- awarded under the heads 'pain and agony', Rs.50,000/- towards 'food and nourishment', 'Rs.50,000/- towards 'conveyance', Rs.50,000/- towards 'attendant charges', seems to be just and reasonable and no interference is called for.
11. The claimant went on record to depose that he was working as a Software Consultant in BEVEL Gears (India) Private Limited. He has produced Ex-P15 the letter of appointment dated 1.2.2010. Under Ex-P15, his consolidated salary per month is shown as Rs.45,000/-. Ex- P16 is the letter of termination dated 31.3.2010 issued by the same company. The claimant has also produced two documents marked as Exs-P17 and P18. Those documents go to show that prior to joining BEVEL Gears (India) Private
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Limited, he was working in other organization i.e., 24/7 Customer Pvt. Ltd.,. He has also produced Ex-P19-the letter of appointment dated 1.8.2007 issued by Blue Pearl Info Media Pvt. Ltd., His qualification is stated to be a Science Graduate. In order to prove his appointment and salary that he was getting from BEVEL Gears, he examined H.R. Manager- Anjaneya Reddy T. as PW-3. Sri. Anjaneya Reddy has produced his identity card issued by the employer. He has spoken that the claimant was appointed in BEVEL Gears (India) Private Limited as Software Consultant and his salary was Rs.45,000/- p.m. The tribunal taking into account the salary at Rs.45,000/- p.m. awarded a sum of Rs.2,70,000/- towards 'loss of income during the period of treatment for a period of six months'. Since his services were terminated on 31.3.2010 as could be seen from letter of termination Ex- P16, the amount awarded under the head 'loss of income during the period of treatment at the rate of Rs.45,000/- p.m. is not justified, that too, when the tribunal has taken the permanent disability of the whole body as 100% and calculated the future loss of income by applying multiplier as
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'15'. As such, Rs.2,70,000/- awarded towards 'loss of income during the period of treatment' is not sustainable.
12. The tribunal has awarded a sum of Rs.1,03,67,500/- towards 'purchase of artificial limbs' and replacement of artificial limbs'. The Doctor who was examined as PW-2 has not at all spoken for having advised the claimant to go for artificial limb and purchase of artificial limb by spending crores of rupees or for that matter replacement of artificial limb, the expenditure to be incurred towards the maintenance of artificial limb. In the absence of medical advice to that effect by the doctor who treated him, it was not proper on the part of the tribunal to award crores of rupees towards purchase of artificial limb and replacement of artificial limb. Admittedly, the right hand is amputated above the elbow. Therefore, it can be said the artificial limb has to be fixed for right hand. The claimant has already purchased the artificial limb on payment of cost of Rs.10.00 lakhs which is included in the assessment awarded towards medical expenditure. Sofar as the right leg is concerned, there is no amputation as could be seen from the photographs Ex-P23 and Ex-P24. Therefore, purchase of
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artificial limb for right leg does not arise nor it is advised by the Doctor. Further PW-2-the Orthopedic Surgeon has not spoken in his evidence that the claimant has to undergo amputation of right leg also. In the absence of medical evidence to that effect, we have no hesitation to hold that the question of purchase of artificial leg does not arise. What requires to be purchased is the artificial arm for right hand and that the claimant has already purchased artificial arm on payment of cost of Rs.10,02,500/- from M/s. Otto Bock Health Care Pvt. Ltd., as could be seen from Ex-P48 and that amount has been included in Rs.19,81,859/- awarded towards 'medical expenses'. The cost of artificial limb starts from Rs.5,000/-. Moreover, the tribunal has awarded Rs.5.00 lakhs toward 'future medical expenses'. Under such circumstances, there is no justification to award Rs.1,03,67,500/- towards 'purchase of artificial limb and replacement of artificial limb', inasmuch as, it is not supported by the evidence of the doctor. Needless to say, the evidence of PW-4 and PW-5- the employees of M/s. Otto Bock Health Care Pvt. Ltd., would not improve the situation in any way.
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13. Coming to the amount of Rs.1,21,50,000/- awarded towards 'future loss of income on account of permanent disability', it is borne out from the evidence of PW-2 Orthopedic Surgeon from Manipal Hospital that the claimant has suffered 90% permanent disability of the whole body which is evident from the photographs produced. He was working as a Software Consultant. His right hand above elbow is amputated. His right leg is in bad shape, though it is not amputated. Under such circumstances, we are inclined to accept the permanent physical disability suffered by the claimant as 90% as spoken by PW-2. When it comes to his employment/occupation, it is 100%. Rightly for the said reason, his services have been terminated. Even otherwise, it was impossible for him to work as a Software Consultant having regard to his present physical conditions. His monthly salary was Rs.45,000/- as could be seen from appointment order and also as spoken by PW-3 H.R. Manager. The tribunal has added 50% of his income towards future prospects referring to the decision of the Supreme Court in Santosh Devi case, since he was aged 37 years at the time of accident. Thus the tribunal has taken the
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monthly income of the claimant as Rs.67,500/-. Admittedly, he joined the company on 1.2.2010. He met with an accident on 6.3.2010 hardly within 35 days and has been terminated from services on 31.3.2010. He did not even complete his probation period. His services were not confirmed. Moreover, prior to joining BEVEL Gears (India) Pvt., Ltd., he worked in another two companies. He had no permanent employment. In that case, the tribunal is not justified in adding 50% of his income towards future prospects while computing loss of future income. Even otherwise, PW-3 H.R. Manager has not spoken anything about the future prospects. Further, the tribunal has not deducted professional tax and Income-tax and other unproductive deductions out of his income. So by deducting Rs.5,000/- p.m. towards income-tax and professional tax and such other unproductive deduction, we deem it just and proper to take his monthly income at Rs.40,000/-. The annual loss of income therefore comes to Rs.4,80,000/-. He was aged 37 years. The multiplier applicable is '15'. In that case, the total 'loss of future income' comes to Rs.72,00,000/- (Rs.4,80,000/- x 15). As such, we are inclined to award Rs.72.00 lakhs towards
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'future loss of income' as against Rs.1,21,50,000/- awarded by the tribunal.
Since the claimant is unmarried, that he underwent amputation of his right hand above elbow and the left leg is in very bad shape, the chances of his marriage are bleak. He lost joy, happiness, amenities in his future life. Viewed from this angle, the compensation of Rs.1.00 lakh awarded towards 'loss of marriage prospects' and Rs.2.00 lakh towards 'loss of happiness and amenities' seems to be on the lower side. We propose to award Rs.2.00 lakh towards 'loss of marriage prospects' and Rs.3,50,000/- towards 'loss of amenities and happiness'.
14. Thus the claimant has been awarded compensation under various heads as under:-
Heads Amount in Rs.
Medical expenses 19,81,859
Pain and agony 1,00,000
Food and nourishment 50,000
Conveyance charges 50,000
Attendant charges 50,000
Future medical expenses 5,00,000
Loss of future income on 72,00,000
account of disability
Loss of marriage prospects 2,00,000
Loss of joy, happiness and 3,50,000
amenities
TOTAL 1,04,81,859/-
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Thus the claimant is entitled for total compensation of Rs.1,04,81,859/- as against Rs.2,58,19,359/- awarded by the tribunal.
15. Accordingly, the appeal filed by the appellant- insurance company is allowed-in-part. The judgment and award dated 4.1.2014 in MVC No.4402/2010 on the file of Addl. Motor Accident Claims Tribunal and XVII Additional Court of Small Causes, Mayohall Unit, Bangalore, stands modified awarding a total compensation of Rs.1,04,81,859/- as against Rs.2,58,19,359/- awarded by the tribunal together with 6% p.a. interest from the date of petition till the date of realisation from the owner and insurer of the car involved in the accident jointly and severally.
The insurance company shall deposit the entire compensation amount within a period of 30 days from the date of receipt of copy of this judgment, excluding the amount already deposited by them.
In the event of deposit, a sum of Rs.75.00 lakhs shall be released to the claimant inclusive of the amount, if any,
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already released and the remaining amount together with interest shall be invested in the name of the claimant in Fixed Deposit in any Nationalized Bank of his choice for a period of five years renewable for another five years. The claimant is at liberty to withdraw the interest periodically.
The entire amount in deposit by the insurance company shall be transmitted to the tribunal.
Office to draw award accordingly.
Sd/-
JUDGE Sd/-
JUDGE *mn/-