Bangalore District Court
Bhaskar S vs Icici Lombard Motor Insurance on 16 February, 2022
KABC020062042012
BEFORE THE COURT OF XXIV ADDITIONAL SMALL CAUSES JUDGE
AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL & A.C.M.M.
(SCCH26) AT BENGALURU
DATED THIS THE 16th FEBRUARY 2022
PRESENT: SRI.R.MAHESHA. B.A.L.LLB.,
XXIV ADDL. SCJ &
ACMM & MEMBER MACT
BENGALURU.
M.V.C No.3301/2012
PETITIONER : Bhaskar S
S/o Subbegowda K.M.
Aged about 41 years
Residing at No.4,
Amrutha Mahal Nilayam
R.M.II stage, 4th cross,
Jaladarshini layout
Bangalore560 094.
(By Sri.N.R. Adv.,)
V/s
RESPONDENTS : 1. ICICI Lombard motor insurance
Branch office, No.89, II floor,
SVR complex, Hosur main road,
Madivala, Bangalore
Policy No.3001/MI
00210550/00/000 valid from 131
2012 to 12012013
2. Mr.Vishwanath A
No.45, Skanda Nilaya
Sri.Matha layout
9th main, Sharadambanagar
Jalahalli post,
Bangalore.
****
:: JUDGMENT::
At the outset it is relevant to mention here that the above case had been disposed off by this tribunal vide judgment dated 1308 2013 wherein petition was allowed in part. Aggrieved by the judgment passed by this tribunal, the petitioner herein had preferred MFA No.10187/2013 (MV) before Hon'ble High Court of Karnataka and insurance company also preferred appeal before Hon'ble High Court of Karnataka in MFA No.9825/2013 (MV). The Hon'ble High Court of Karnataka vide judgment dt.27102021 both appeals are allowed and remanded the matter for fresh consideration only in respect of assessment of quantum of compensation is concerned and finding of tribunal on negligence and liability are concerned, the same is confirmed. The operative portion of the judgment of Hon'ble High court of Karnataka is extracted herein below:
2. Accordingly, both the appeals are allowed. The judgment and award passed by the Tribunal is setaside. The matter is remanded to the Tribunal for fresh consideration only in respect of assessment of quantum of compensation is concerned. The finding of the Tribunal on negligence and liability are concerned, the same is confirmed. The parties are at liberty to adduce additional evidence and produce additional documents to establish their case. Since the accident is of the year 2012 and in the interest of justice, parties are directed to appear before the Tribunal on 09122021 without awaiting for any notice from the tribunal. The tribunal after giving opportunities to the parties shall decide the matter in accordance with law within a period of six months from the date of appearance of the parties. The amount in deposit is ordered to be transferred to the tribunal. The tribunal is directed to keep the amount in fixed deposit. In view of disposal of appeals, IA 3/2015 and IA 1/2016 filed by the claimant for production of additional documents does not survive of consideration. The office is directed to return the documents produced along with the application to the claimant after retaining the xerox copies of the same.
3. The petition is filed by the petitioner under Sec.166 of Motor Vehicles Act, 1989 seeking compensation for an amount of Rs.15,00,000/ for the grievous injuries sustained by him in road traffic accident.
4. The brief facts of the case of the Petitioner is as follows:
That on 1712012 at about 7.45 a.m. when the petitioner was waiting for a bus in front of BEL school, Rajaratnam circle, HMT road, driver of the Maruthi alto car bearing reg.No.KA04MK2436 came towards EL circle with high speed and in a rash and negligent manner so as to endangering humanlife, dashed against the petitioner who is waiting for a bus in footpath. Due to the accident, petitioner sustained injuries all over the body and took treatment as inpatient at M.S.Ramaiah hospital, Bangalore wherein underwent surgery and till today he is taking treatment and also on bed rest. That the petitioner spent Rs.5 lakhs for medical expenses and Rs.1 lakh for food and nourishment and Rs.50,000/ towards conveyance charges. That the petitioner is Assistant professor in electronics and communication department at Nagarjuna engineering college, Bangalore and drawing Rs.40,000/p.m. and due to accidental injuries he is unable to attend his day to day activities and depend upon some other person for his routine work. That due to permanent disability suffered by him, he sustained loss of happiness and loss of future earning capacity. Hence prays to award compensation of Rs.15 lakhs from the respondents.
5. After service of summons, the respondent No.1insurance company filed written statement and taken up contention that the claim petition is not maintainable either in law or on facts of the case and the car was insured with it as on the date of accident subject to terms and conditions of the policy. The driver of the vehicle drove the same without having valid and effective driving licence, which is in contravention of the policy condition and hence this respondent is not liable to pay any compensation and the owner is expected to verify the driving licence of the driver before entrusting the vehicle to the driver, but in this case no such attempt has made and hence on this ground also this respondent is not liable to pay compensation. It is also denied the age, occupation and income of the petitioner and accident was not occurred on account of rash and negligent driving of the insured vehicle. Hence on these grounds prays to dismissal of the claim petition.
6. The respondent No.2 owner of the vehicle filed written statement and taken up contention that this respondent has not committed any offences as he is innocent of the alleged accident. The petitioner has not given any complaint against the vehicle which actually caused the accident, but the petitioner noted the number of the 2 nd resentment's car and filed a false complaint and this respondent has the DL valid upto 28 2015 and policy was in force at the time of accident. Hence on these grounds prays for dismissal of the claim petition.
7. Heard arguments of learned counsel for petitioner and respondent No.1.
8. On the basis of the above pleadings, this tribunal has framed the following:
:: ISSUES ::
1. Whether petitioner proves he has sustained grievous injuries in a road traffic accident due to involvement of Maruthi alto car bearing No.KA04MK2436 on 1712012 at about 7.45 a.m. by its rash and negligent driving as alleged in the petition?
2. Whether the petitioner is entitled for any compensation as claimed? If so, to what extent and from whom?
3. What order or award?
9. In order to prove the above said issues, Petitioner has been examined as PW1 and got marked Ex.P.1 to Ex.P.16 and ExP27 to 30 documents. One Venkataraju Vanam got examined as PW2 and got marked ExP17 to 23. Dr.Harshad M.Shah got examined as PW3 and got marked ExP24 to 26 and ExP27 to 30.
10. My findings on the above issues are as under:
Issue No.1 in : In view of the judgment and
respect of order dt.27102021 in MFA
liability 9825/2013 (MV) clubbed
concerned with MFA 10187/2013 (MV)
passed by Hon'ble High court
of Karnataka. This tribunal
judgment findings pertaining
to issue No.1 and liability
dt.13082013 confirmed by
the Hon'ble High court of
Karnataka vide judgment
dt.27102021.
Issue No.2 : Partly in Affirmative
Issue No.3 : As per final order for the
following:
REASONS
11. Issue No.2 : It is pertinent to note the direction of Hon'ble High Court of Karnataka in MFA No.9825/2013 (MV) clubbed with 10187/2013 (MV) vide order/judgment dt.27102021, the matter is remanded to the tribunal for " fresh consideration only in respect of assessment of quantum of compensation is concerned ". In view of the above direction, the parties were appeared before this tribunal upon the issuance of court notice the petitioner's counsel appeared before this tribunal on 15122021. The respondent No.1 advocate appeared before this tribunal on 30122021. In view of the order passed by Hon'ble High Court of Karnataka, the petitioner in order to prove his case in respect of quantum of compensation, he filed additional affidavit and examined as PW1 and got documents as ExP27 to 30 and further petitioner in support of his case, he examined earlier doctor i.e., PW3 and he also filed additional affidavit and produced four documents which were due to over sight marked as ExP27 to 30. ExP27 releaving order dt.2712 2021, ExP28 admission letter to PHD programme dt.1482010, ExP29 discharge summary, ExP30medical bills which were produced by PW1 after remanded by the Hon'ble High court of Karnataka. Further PW3 produced four documents after remanding this case for fresh consideration in respect of determination of quantum of compensation. The said documents due to over sight again marked as ExP27 to 30. During course of cross examination, the counsel for respondent referred exhibits. Therefore the said mistake was not rectified. So again ExP27 inpatient record of M.S.Ramaiah hospital. ExP28OPD record regarding notes of disability. ExP29financial estimate form of further surgery. Ex P30xray photo copies 5 in numbers.
12. The petitioner stated in his additional affidavit that he again reiterated earlier affidavit para 1 to 5 and he further stated in additional affidavit that due to this accident, he suffered multiple injuries all over the body and also he underwent surgery. After passing the award, dt.722012 he was admitted to hospital on 2772014 and he underwent one more surgery, during the treatment in the hospital, he incurred Rs.72,771/ towards medical expense. Due to the physical disability, he used to depend upon some other person for his routine work and also he was not able to sit and stand for long time which constrained him to resign for the job. Due to permanent disability caused to him he sustained huge loss of happiness both physically and mentally and he also lost amenities, future earning capacity and decrease of his life span. Therefore he pray for allow this petition and produced four documents. He has been subjected cross examination by first respondent. During course of cross examination, he clearly admitted that ನನನ 2010 ರಲ PHD ಗ ಸಸರ ಕಕಕಡ ನಕತರ ನನನ PHD ಯನನ ನ ಮನಕದನವರಸಲಲ.
ನನನ PHD ಯನನ ನ discontinue ಎಕದನ ತಕಸರಸಲನ ಯವದಸ ದಖಲ ಇಲಲ.
13. Further he contended during course of cross examination that he resigned to his job for the illtreatment given by private institution to him. Therefore he resigned to his job. During course of cross examination, he clearly admitted that ನನನ ರಜನಮ ಕಕಡನವಗ ನನಗ ಅಪಘತ ಆಗರನವದದರಕದ ನನಗ ಕಲಸ ಮಡಲನ ಸದದವಗನತತಲಲ ಎಕದನ ನಮಮ ಇಲಖಯವರಗ ತಳಸ ರಜನಮ ಕಕಟಟಲಲ. ನನನ ಕಲಸ ಮಡನತತದದ ಖಸಗ ಸಕಸಸಯವರನ ನನನ ಕಲಸ ಮಡಲನ ದದಹಕವಗ ಅಸಮರದರ ಹಕಕದದನ ಎಕದನ ಲಖತವಗ ನನಗ ತಳಸಲಲ.
Further PW1 during course of cross examination clearly admitted that ಒಳಳಯ ಅವಕಶಗಳನ ಬಕದರ ಉಪನದಸ ಮಡನವ ವವತತಯವರನ ಬಸರ ಕಡ ಉದಕದಸಗಕಕ ಳ ತತರ ಎಕದರ ಸರ .
ಸಸರಕಕಳನ ನಶನ ಪ 27 ರಲಸವಕಗ order dt.27122021 ನನನ ನ ದನಕಕ 27122021 ರಕದನ ತಗದನಕಕಕಡದ ಎಕದರ ಸರ .
And he denied the suggestion of respondent No.1 that he had no any problem to do his routine work after this accident. Further during course of cross examination PW1 clearly admitted that ExP30 medical bills (18 in numbers) pertaining to removal of implants and this tribunal granted future medical expense under earlier judgment a sum of Rs.30,000/. Further PW1 admitted that ನಪ 30 ರ ಮಸಲ ಅಕದರ ಮಡಕಲಬಲನ ಲ ಗಳ ಮಸಲ ನನನ ಹಣ ಸಕದಯ ಮಡರನವ ಬಗಗ ರಫರನನ ಇಲಲ ಎಕದರ ಸರ . ನಪ 30 ರ ಮಸಲ mode of payment corporate ಎಕದನ ಇದ ಎಕದರ ಸರ.
And he denied the suggestion of respondent, the amount mentioned in ExP30 was paid by now petitioner working in company and he admitted he would examine officials of M.S.Ramaiah hospital, billing section to show he had paid amount as per ExP30 to M.S.Ramaiah hospital.
14. The loss of future earnings due to disability : The petitioner stated in the petition in his affidavit that at the time of accident he was aged about 41 years and due to this accident, he had sustained fracture of left neck of the femur in his left hip (Garden type IV) and had abrasion 7 x 7 cms over the elbow, 2 x 3 cm lacerated wound over the right knee, blunt injury to the back. After this accident, he get treatment as inpatient, during stay of his hospital, he undergone surgery for the fractures of his left hip CRIF done with 3 canulated cancellous screws and he discharged. He spent nearly Rs.5lakh towards medical expense, Rs.1 lakh towards food and nourishment and Rs.50,000/ towards conveyance charges. Before this accident, he working as Assistant professor in department of electronic and communication engineering in Nagarjuna college of engineering and Technology. He was drawing salary of Rs.31,847/p.m. Due to accidental injuries, he was not able to attend to his duty, hence he was on leave. Thereafter due to physical disability caused due to this accident, he was constrained to resign from the job on 2162013. He admitted for PHD programme in electronic and communication engineering at Jawaharlal Nehru technological university, Ananthpura on 2382010 for pursuing PHD degree. Due to accidental injuries, he was not able to complete the same,hence he lost his bright future. Due to this accident, he suffered multiple injuries all over the body and he underwent surgery, after passing award, he again admitted to hospital on 2772014 and underwent one more surgery, he incurred expense towards medical expense during his treatment a sum of Rs.72,771/. Due to this accident, he used to depend upon some other person for his routine work and not able to sit and stand for long time which constrained him to resign for his job. Due to the permanent physical disability, he sustained huge loss of happiness, both mentally and physically and also he lost amenities, future earning capacity and lifespan was decreased. Therefore he sought just and fair compensation. In order to prove his physical disability, he again examined PW3, he also filed additional affidavit by reiterating earlier affidavit para 1 to 6. In addition to that, he stated in para 7 that recently on 28122021, he advised petitioner for xrays for the evaluation of disability on 1912022, he was evaluated with xrays. Now petitioner complains of pain, persisting in his left hip, deep, anteriorly and in his groin and he complained increased pain on and off in his low back and SI joint areas. This is on and off associated with limping and difficulty in standing when pain is present. Pin increases on climbing stairs. He cannot sit cross legged or squat, he has gross restrictions of his movements of his left hip and also gross weakness in his left hip and knee. He was clinically assessed by getting xray report dt.28122021. In latest xray fracture neck femur of left hip united with four shortening and mal union in varus. Head of the femur appears smaller, deforming and in congruous, deforming of head is more in the superior and posterior side. Now the head and acetabulam are more damage with distruction of the upper half of head of the femur. A small screw is also visible in the right trochanteric area which was used for muscle, pedicle bone grafting in the first surgery and was not removed in the 2 nd surgery where other implants were removed. There are two major operated scars appeared (healed). He physically by considering the movement of limbs like hip and knee and stability component he assessed total permanent disability of 50.19% for his left lower limb and he advised total hip replacement and also known as THA (Total Hip Artho Plasty) and he gave estimation to cost approximately Rs.3,53,600/ for THR of his left hip joint in Ramaiah memorial hospital. And he required to come for followup regularly for physiotherapy and he produced four documents. He has been subjected cross examination, during course of cross examination, he clearly admitted that he assessed physical disability of petitioner. Further he admitted about earlier affidavit para 1 to 5 contents and present affidavit para 1 to 5 contents are one and the same. Further he admitted that there is no fracture to acetabulum (socket for hip joint). The fractures are completely united. Now he assessed only lower limb assessment. Further he deposed that he had not assessed wholebody disability. He did not esquired avocation of petitioner, earlier he suggested future medical expenses for the petitioner around Rs.50,000/. ExP29 i.e., financial estimate form for further surgery prepared by finance department of M.S.Ramaiah hospital upon the reference of PW3. Further he admitted that he had not issued any estimation for replacement of hip joints in the year 2013. Further he contended during course of cross examination that he stated earlier affidavit in 2013 it will happen in future. Further PW3 admitted that he had not get any consent from petitioner for replacement of hip joints. Doctors have advised to petitioner for getting physiotherapy treatment, but on physical verification of medical records, there is no mention about how much occasion petitioner taken physiotherapy treatment in case sheet. Further PW3 clearly and categorically admitted that petitioner can do reading and writing without any difficulty and denied other suggestions. In the back drop of above evidence lead by PW1 and 3, this tribunal meticulously perused ExP11 and 12, 13, it is forthcoming that the PW3 himself issued ExP12 on 12102012, he fit to duty resume on 18102012. The petitioner after discharged from the hospital he resume back to his work and working as Assistant professor in Nagarjuna engineering college till 2162013. After this accident, the petitioner continued his avocation from 18102012 to 2162013. The petitioner stated that due to harassment given by college authorities he decided to resign to his job, but to substantiate the above fact, there is no materials from the side of petitioner. PW1 clearly admitted during course of cross examination that ನನನ ರಜನಮ ಕಕಡನವಗ ನನಗ ಅಪಫತ ಆಗರನವದರಕದ ನನಗ ಕಲಸ ಮಡಲನ ಸಧದವಗನತತಲಲ ಎಕದನ ನಮಮ ಇಲಖಯವರಗ ತಳಸ ರಜನಮ ಕಕಟಟಲಲ. ನನನ ಕಲಸ ಮಡನತತದದ ಖಸಗ ಸಕಸಸಯವರನ ನನನ ಕಲಸ ಮಡಲನ ದದಹಕವಗ ಅಸಮರದರ ಹಕಕದದನಕದನ ಲಖತವಗ ನನಗ ತಳಸಲಲ.
15. So this admission of PW1 clearly madeout that the petitioner resigned to his job for not due to accidental injuries and for other personal reasons. Further petitioner contended in his petition and his additional evidence affidavit that due to this accidental injuries he was not pursuing PHD degree and not able to complete PHD degree. The alleged accident occurred on 1712012. As per document produced by PW1which is marked before this tribunal as ExP28 i.e., admission to part time research programme 2010, it disclose that he applied to join part time research programme in Jawaharlal Nehru technological university, Ananthpur, Andrapradesh state on 2382010. The college authorities has also issued no objection certificate for pursue the proposed research work for the PHD degree of the JNT University, Ananthpura by making use of the available facilities in our organisation on 2972010. So from this documents it is clear if petitioner intends to pursue PHD degree there is no impediment to join PHD course in the year 2010. The petitioner himself did not joined PHD course the best reasons well known to petitioner. Now petitioner contending that due to physical disability occurred from this accident, he would not pursue PHD degree from JNT university, Ananthpur. During course of cross examination, it is clearly elicited from respondent No.1 that ನನನ 2010 ರಲ PHD ಗ ಸಸರ ಕಕಕಡ ನಕತರ ನನನ PHD ಯನನ ನ ಮನಕದನವರಸಲಲ.
ನನನ PHD ಯನನ ನ discontinue ಎಕದನ ತಕಸರಸಲನ ಯವದಸ ದಖಲ ಇಲಲ.
16. So as per admission given by PW1 and document placed by petitioner himself it is proved before this tribunal that petitioner discontinued his PHD course in the year 2010 itself. In the year 2010, petitioner was hale and healthy there is no impedement to him to pursue PHD degree from JNT university, Ananthpur. Further petitioner stated in his additional affidavit after remanding this case from the order of Hon'ble High court of Karnataka for fresh consideration of quantum of compensation that due to this accident, he suffered multiple injuries all over the body and he underwent surgery after passing award by this tribunal he readmitted to hospital on 2772014 and he underwent one more surgery and he incurred expense of Rs.72,771/ towards medical expense and further he stated that due to this accident he depend on others for his routine work and his life is miserable condition. Therefore he resigned to his job, he had bright future and he had lost earning capacity etc., Therefore he praying for grant higher compensation. In order to prove his physical disability, he again examined PW3 before this tribunal he assessed total permanent disability for his left lower limb of 50.19%, the same PW3 deposed before this tribunal in the year 2013 and assessed permanent disability for his left lower limb of 39%. Now PW3 deposed before this tribunal in para 7 of his affidavit that due to the reasons stated in para 7 the petitioner had physical disablement. Therefore he assessed now total permanent disability of petitioner left lower limb 50.19%. Admittedly it is not a avocational disability. The PW3 even he was part of team doctor he did not knew about avocation of the petitioner. To determination of loss of future earning depend on incapability of to perform his earlier avocation. Before reassessing compensation, it is worthful to rely Hon'ble Apex court decision in Rajkumar Vs Vijaykumar 2011 (1) SCC 343 wherein Hon'ble Supreme court of India clearly held in that case the provision of the motor vehicles Act makes it clear that the award must be just, which means that compensation should, to the extent possible fully and adaquently restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair reasonable and equitable manner. The court or tribunal shall assess the damages objectively and exclude from consideration any speculation or fancy. Though some conjuncture with reference to the nature of disability and its consequences is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that is to be compensated for his inability to lead a full life, is inability to enjoy those normal amenities which he would have enjoyed but for the injuries and his inability to earn as much as he use to earn or could have earn.
17. Further it is worthful to mention and rely judgment of Hon'ble High Court of Karnataka (DB) in case between Rajanna @ Raju Vs Srinivas and another decided on 1872019 wherein division bench of Hon'ble High court of Karnataka, followed the observation made by Hon'ble Supreme court of India in Rajkumar Vs Ajaykumar and discussed in its judgment para 23 which has been elucidated in Rajkumar case regarding assessment of loss of future earning capacity and it is necessary to understand the meaning of the expression "permanent disability"
18. According to the Hon'ble Supreme Court, disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
19. On the question of assessment of percentage of permanent disability, the Hon'ble Supreme Court speaking through Raveendran J., at paragraphs 9 to 19 has observed as under:
9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(I) whether the permanent or temporary;
(ii) if the disablement disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of "loss of future earnings", if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to "hold an enquiry into the claim" for determining the "just compensation". The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the "just compensation". While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen's Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
17. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give "ready to use" disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability.
Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for crossexamination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
The aforesaid principles have to be applied in the instant case.
20. On the head of loss of future earning capacity, the Tribunal has assessed permanent disability at 33%, based on the evidence of P.W.3Dr. Lakshmikanth, who had stated that it was 40%. The Doctor has stated 40% having regard to the whole body disability, but the Tribunal has lost sight of the fact that on account of loss of right lower limb by way of its amputation, the claimant had to resign from his job and is not in a position to take up any other job or avocation. Therefore, functional disability is 100% in our view. Of course, learned counsel for the respondentinsurance company contended that it cannot be 100% and that the appellant may be in a position to carryout his duties, but the fact remains that he resigned from his job and was relieved as per Ex.P.12 soon after the accident. He has not been able to seek any other employment or earn any income in any other way. Hence, functional disability must be assessed at 100% though learned counsel for the insurer tried to persuade us to assess it at 90% only. In this regard, we have applied the tests enunciated in paragraph No.13 of the judgment of the Hon'ble Supreme Court in the case of RAJ KUMAR.
21. Salary of the appellant was Rs.32,000/ per month at the time of the accident. Hence, compensation towards 'loss of future earning capacity' is `57,60,000/ (Rs.32,000 (100%) x 12 x 15 as the claimant was 37 years of age at the time of accident).
22. Since we have considered the permanent disability as 100%, we delete the compensation on the head 'loss of amenities' at Rs.1,00,000/ awarded by the Tribunal, as learned counsel for the insurer contended that when whole body disability is assessed at 100%, it is unnecessary to award on the head of loss of amenities. We find considerable force in the said submission. Further, towards future medical expenses including walkingaid, a sum of Rs.50,000/ is awarded.
23. Hence, the compensation is reassessed at Rs.74,95,865/ which is as under:
Compensation Heads awarded by this Court (in Rs.) Pain and suffering 1,00,000.00 Medical expenses 14,35,865.00 (4,76,640 + 9,59,225) Incidental charges 50,000.00 Loss of future earning capacity 57,60,000.00 Walkingaid/Future medical 50,000.00 expenses Total 73,95,865.00
24. Learned counsel for the respondentinsurance company contended that the award of 8% interest per annum is without any reason and that, normally this Court awards 6% interest per annum.
25. We find considerable force in the said argument. The total compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realisation, instead of interest at the rate of 8% as awarded by the Tribunal.
26. We wish to observe that though the claim made by the claimant/appellant herein was only Rs.54.00 lakh before the Tribunal and no amendment has been sought for enhancing the amount in this appeal. Nevertheless, bearing in mind the following judgments, we are of the view that the appellant herein is entitled to enhanced compensation.
(a) In Ward vs. James [(1965) 1 All ER 563], the Court of Appeal, while dealing with a case under Section 6 of the Administration of Justice (Miscellaneous Provisions) Act, 1933 made some important observations, which are extracted below:
"Although you cannot give a man so gravely injured much for his 'lost years', you can, however, compensate him for his loss during his shortened span, that is, during his expected 'years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money."
(b) In R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd. and others [(1995) 1 SCC 551], this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment in Ward v. James (supra), Halsbury's Laws of England, 4th edn., vol. 12 (page 446) and observed:
"In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards."
(c) In Nizam's Institute of Medical Sciences vs. Prasanth S. Dhananka [(2009) 6 SCC 1], the threeJudge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. The Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act: "We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be charry of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. At the same time we often find that a person injured in an accident leaves his family in greater distress visàvis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
(d) This approach is in tune with the judgment in Nagappa v. Gurudayal Singh [(2003) 2 SCC 274].
In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311(Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana 1995 ACJ 1288 (P&H) and observed:
"For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award "just" compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming timebarred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under subsection (4) to Section 166, even the report submitted to the Claims Tribunal under subsection (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition."
27. Further, we find that the Tribunal was not right in deducting 25% towards contributory negligence as the same was neither pleaded by the respondent nor proved. Even if for a moment, it is to be assumed that the appellant did not possess a valid and effective Driving License as on the date of accident, that has no relevance in so far as insurance company is concerned as the driver of the offending insured vehicle possessed a valid licence.
28. 75% of the compensation shall be deposited in a Fixed Deposit in any PostOffice or Nationalized Bank deposit for an initial period of ten years and the appellant shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to him, after due identification.
29. Appeal filed by the claimantappellant is allowed in the aforesaid terms. Parties to bear their respective costs. Office to return the lower Court record to the Tribunal, forthwith.
30. Further Hon'ble Apex court summarised in para 19 of judgment in Rajkumar case
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors."
The aforesaid principles have to be applied in the instant case.
31. The aforesaid principles have applied by the Hon'ble High court of Karnataka Division Bench in case Rajanna @ Raju Vs Srinivasa and another and Hon'ble High court of Karnataka taken 100% functional disability to loss of right lower limb by way of its amputation. Due to this reason, climant had to resign from job and is not position to takeup any other job or avocation. Therefore division bench of Hon'ble High court of Karnataka took 100% functional disability.
32. In the instant case, on account of accident which occurred 171 2012 the petitioner sustained grievous injuries which were fracture to left hip, left femur fracture, neck of femur and petitioner underwent CRIF (closed reduction and internal fixation) with 3 cannulated cancellous screws and discharged. In the year 2014, he readmitted for removal of implants and operated implants were removed and screw for muscle pedical bone grafting used earlier was not removed and discharged on 3172014 and he was taken regular followup treatment. The petitioner after lapse of 7 years from the date of accident, complained pain, persisting in his left hip, deep, anteriorly in his groin. Pain increased in his on and half in his low back and SI joint area. This is on and off associated with limping and difficulty in standing when pain is present. Pain increases on climbing stairs, so cannot sit cross legged or squat, he has gross restrictions of his movements of his left hip and also gross weakness in his left hip and knee. On physical and radiological examination by PW3, he assessed more physical disability than 2013 he earlier assessed permanent disability of 39% to left lower limb. PW3 clearly admitted during course of cross examination that there is no fracture to acetabulum (socket for hip joint). Further he admitted that fractures are completely united and he assessed only lower limb assessment and not assessed wholebody disability. PW3 stated doctor advised physiotherapy treatment to the patient but there is no entry in case sheet regarding petitioner taken physiotherapy treatment as advised by the doctor. Doctor also admitted during course of cross examination there is no difficulty to the petitioner to reading and writing. The PW3 even assessed two occasion in the year 2013 and in the year 2021, he did not aware about avocation of petitioner and he did not assessed avocational disability of the petitioner. In case between Rajkumar Vs Ajay Kumar Hon'ble Apex court clearly held that physical disability consider whether it is affect to continued his earlier avocation and it may caused inconvenience to do earlier avocation or may shifted to other some suitable lessor post, the tribunal shall note before assessing loss of future earning capacity, reduced earning capacity of the claimant. The present petitioner was at the time of accident, assistant professor in Nagarjuna engineering college, Devanahalli. PW3 stated two version of percentage of disability to the petitioner to the left lower limb. There is no any difficulty to petitioner to carriedout his earlier avocation. No doubt there would be some extent he had difficult to carriedout his avocation. The PW3 clearly stated there is no difficulty to the petitioner in reading and writing. The respondent No.1 counsel suggested to PW1 he clearly admitted that ಒಳಳಯ ಅವಕಶಗಳನ ಬಕದರ ಉಪನದಸ ಮಡನವ ವವತತಯವರನ ಬಸರ ಕಡ ಉದಕದಸಗಕಕ ಳ ತತರ ಎಕದರ ಸರ .
ಸಸರಕಕಳನ ನಶನ ಪ 27 ರಲಸವಕಗ order dt.27122021 ನನನ ನ ದನಕಕ 27122021 ರಕದನ ತಗದನಕಕಕಡದ ಎಕದರ ಸರ .
ನನನ ಈಗಲಕ ಅಕದರ 2013 ರ ನಕತರ ಬಸರ ಸಕಸಸಯಲ ಕಲಸ ಮಡ ಮದಲಗಕತಲಕ ಹಚಚನ ಹಣ ಸಕಪದನ ಮಡನತತದನಕದರ ಸರಯಲಲ. ನಪ 27 ನನ ನ ದನಕಕ 27122021 ರಕದನ ತಗದನಕಕಕಡದ ಎಕದರ ಸರ .
33. Even petitioner denied the suggestion of respondent regarding he doing his earlier job in some other institution and getting higher income from his avocation. But ExP27 i.e., releaving letter taken from college on 27122021 for the purpose of this case only. The petitioner being Assistant professor, he can earn money by teaching students in his home or he can teach some other tutorials and may get sufficient income. When the fractures are completely united and implants were removed the disability stated by PW3 is too high The doctor has not stated the disability to the wholebody. The petitioner was not a physical worker to do physical work. The particular limb disability could taken 1/3rd, 1/3rd of particular limb disability taken 1/3rd of 50.19 would be 16.73. Earlier PW3 in the year 2013 assessed 39%. So this tribunal taken avocational disability at 10% to the wholebody. Now PW3 assessed permanent disability of 50.19 for left lower limb and it considered to the wholebody, then it reduced to 1/3rd and looking into the nature of job of the petitioner and looking into the nature of injuries, the injuries completely united and implants were removed, after removal of implants, there would be chance of decrease in permanent disability to the entire body. Hence this tribunal is taken 17% to the wholebody and petitioner can do his job in future even by sitting in the college or he can conduct coaching classes at his home and he can teach students by sitting. Further petitioner placed before this tribunal ExP11 and 13, 14 and examined author of ExP11 before this tribunal as PW2. On perusal of ExP11 it is forthcoming that before this accident, petitioner getting gross salary in the month of January 2012 for Rs.37,550/ and net salary of Rs.15,224/, there is a savings from the petitioner for PF Rs.2,151/ and providing transportation facilities they deduct Rs.1,200/ and petitioner sustained loss of pay in the month of January 2012 Rs.18,775/ and professional tax deduction of Rs.200/. So petitioner totally got net salary of Rs.15,224/. The petitioner was income tax assessee in the year 2010 and he declared his annual income for the financial year 2010 and 2011 Rs.4,03,560/. On perusal of ExP11, it disclose that petitioner got salary for the month of December 2011 gross salary of Rs.37,550/ and net salary of Rs.31,847/. So considering petitioner net salary and other details it would proper to take his salary Rs.31,847/p.m. and age of the petitioner taken 41 years at the time of accident. As per the principles laid down in 2009 ACJ 1298 Sarala Varma Vs Delhi Corporation and another. Therefore Income of the petitioner taken as Rs.31,847/ p.m. and age of the injured taken as 41 at the time of accident and appropriate multiplier 41 to 45 is 14 has to be considered for calculating the compensation. Therefore t he loss of future earnings due to permanent disability comes to (31847 x 12 x 14 x 17%)=Rs.9,09,550=32. Hence petitioner is awarded compensation of Rs.9,09,550=32 towards loss of future earnings due to permanent disability.
34. Pain and sufferings : The petitioner stated in the petition and in his chief affidavit and also additional chief affidavit contending that after this accident he admitted to M.S.Ramaiah hospital and took conservative treatment as inpatient and he sustained Rs.5 lakhs medical expenses, Rs.1,00,000/ towards food and nourishment, Rs.50,000/ towards conveyance charges. In order to substantiate the above facts, he produced ExP7. On careful perusal of ExP7 it disclose that the petitioenr has sustained the following injuries i.e., multiple abrasion over the right knee, CLW over the right knee, limb in attitude of extension and external at hip joint with tenderness, fracture of neck of left femur (type II) and injury No.1 is grievous in nature and injury No.2 is simple in nature. Further petitioner produced exP8 and 9 and after remanding from the order of Hon'ble High Court of Karnataka, the petitioner produced ExP29 discharge summary. On perusal of ExP8, 9, 29, it indicates that the petitioner has taken treatment for fracture of left neck of femur and he underwent CRIF with CC screws on 1712012 and petitioner underwent meyer's muscle pedicle bone grafting using in quadrants femoris muscle on 372012. The petitioner underwent for removal of screws and admitted M.S.Ramaiah hospital on 2772014 and he discharged from the hospital on 3172014. In order to prove treatment took from hospital, he examined treated doctor as PW3 before this tribunal. He also deposed that petitioner has sustained fracture of left neck, femur in his left hip and this injury is grievous in nature and he came for removal of implants on 2772014 and he undergone surgery for removal of implants on 2872014. Hence looking into the nature of injuries, it is just and proper to award Rs.75,000/ towards pain and agony.
35. Medical Expenses: The petitioner deposed before this tribunal that he sustained injury due to alleged history of RTA on 1712012 and he sustained injury over left hip. The petitioner admitted to M.S.Ramaiah hospital and took conservative treatment as inpatient and he sustained Rs.5 lakhs medical expenses, Rs.1,00,000/ towards food and nourishment, Rs.50,000/ towards conveyance charges. In order to substantiate the above facts, he produced ExP7. On careful perusal of ExP7 it disclose that the petitioenr has sustained the following injuries i.e., multiple abrasion over the right knee, CLW over the right knee, limb in attitude of extension and external at hip joint with tenderness, fracture of neck of left femur (type II) and injury No.1 is grievous in nature and injury No.2 is simple in nature. Further petitioner produced ExP8 and 9 and after remanding from the order of Hon'ble High Court of Karnataka, the petitioner produced ExP29 discharge summary. On perusal of ExP8, 9, 29, it indicates that the petitioner has taken treatment for fracture of left neck of femur and he underwent CRIF with CC screws on 1712012 and petitioner underwent meyer's muscle pedicle bone grafting using in quadrants femoris muscle on 372012. The petitioner underwent for removal of screws and admitted M.S.Ramaiah hospital on 2772014 and he discharged from the hospital on 3172014. In order to prove treatment took from hospital, he examined treated doctor as PW3 before this tribunal. He also deposed that petitioner has sustained fracture of left neck, femur in his left hip and this injury is grievous in nature and he came for removal of implants on 2772014 and he undergone surgery for removal of implants on 2872014. He produced ExP15 (84 medical bills) and total petitioner has spent Rs.1,31,988/ including sum of Rs.55,480=34 and Rs.1,073=90 and Rs.42,134=88, the medical bills which are issued by M.S.Ramaiah hospital, the evidence of PW3 also shows that the petitioner has taken treatment in M.S.Ramaiah hospital, the case sheet i.e., ExP24 shows that the petitioner admitted as inpatient and spent medical expense of Rs.1,31,988/. After remanding from the order of Hon'ble High Court of Karnataka the petitioner produced Ex P30 and he deposed before this tribunal that he again readmitted to M.S.Ramaiah hospital for removal of implants and he was admitted as inpatient from 2772014 to 3172014 and he underwent surgery for removal of implant on 2872014 and he incurred medical expense Rs.73,621/ During course of cross examination the counsel for respondent No.2 elicited from the mouth of PW1 that ನಪ 30 ಕಕ ಸಕಧಸದಕತ ಕದಶ ಪದಸಡ ರಶಸದಗಳನನ ನ ಕಕಟಟರನವದಲಲ. ನಪ 30 ರ ಲ ಗಳ ಮಸಲ ಅಕದರ ಮಡಕಲ ಬಲನ ಮಸಲ ನನನ ಹಣ ಸಕದಯ ಮಡರನವ ಬಗಗ reference ಇಲಲ ಎಕದರ ಸರ . ನಪ 30 ರ ಮಸಲ mode of payment corporate ಎಕದನ ಇದ ಎಕದರ ಸರ . ನನನ ಕಲಸ ಮಡನತತರನವ ಕಕಪನ ನಪ 30 ಕಕ ಸಕಬಕಧಸದ ಹಣವನನ ನ ಪವತ ಮಡದ ಎಕದರ ಸರಯಲಲ M.S.Ramaiah ಆಸಸತತಯ ಬಲಕಗ ಸಕನ ನವರನನ ನ ನನನ ನದಯಲಯಕಕ ಕರಸ ವಚರಣ ಮಡಸನತತಸನ.
36. On meticulous perusal of ExP29 discharge summary issued by M.S.Ramaiah hospital from 2772014 to 3172014, it indicates that petitioner underwent surgery for removal of implants which is earlier fixed on 1712012. the petitioner incurred expense of Rs.53,437/, but ExP30 indicates that the said amount reimbursed by one Star Health and allied insurance. During course of cross examination, PW1 admitted before this tribunal that he would examine official, billing section of M.S.Ramaiah hospital before this tribunal to substantiate he personally paid Rs.53,437/ to M.S.Ramaiah hospital by way of cash or card or any other mode. But he did not examined concerned official before this tribunal. So admitted by PW1, ExP30 did not contained bill paid seal and it disclose that the mode of payment made by corporate. Therefore once insurance company reimbursed expenditure to the petitioner, the question of awarding the said amount does not arise. Therefore this tribunal awarded a sum of Rs.1,31,988/ and other outpatient expenditure bills a total sum of Rs.1,38,341=97. Therefore petitioner is awarded Rs.1,38,341=97 under the head of medical expenses.
37. Food and nourishment, Conveyance and Attendant charges: The petitioner stated in the petition and in his chief affidavit and also additional chief affidavit contending that after this accident he admitted to M.S.Ramaiah hospital and took conservative treatment as inpatient and he sustained Rs.5 lakhs medical expenses, Rs.1,00,000/ towards food and nourishment, Rs.50,000/ towards conveyance charges. In order to substantiate the above facts, he produced ExP7. On careful perusal of ExP7 it disclose that the petitioner has sustained the following injuries i.e., multiple abrasion over the right knee, CLW over the right knee, limb in attitude of extension and external at hip joint with tenderness, fracture of neck of left femur (type II) and injury No.1 is grievous in nature and injury No.2 is simple in nature. Further petitioner produced exP8 and 9 and after remanding from the order of Hon'ble High Court of Karnataka, the petitioner produced ExP29 discharge summary. On perusal of ExP8, 9, 29, it indicates that the petitioner has taken treatment for fracture of left neck of femur and he underwent CRIF with CC screws on 1712012 and petitioner underwent meyer's muscle pedicle bone grafting using in quadrants femoris muscle on 37 2012. The petitioner underwent for removal of screws and admitted M.S.Ramaiah hospital on 2772014 and he discharged from the hospital on 3172014. In order to prove treatment took from hospital, he examined treated doctor as PW3 before this tribunal. He also deposed that petitioner has sustained fracture of left neck, femur in his left hip and this injury is grievous in nature and he came for removal of implants on 2772014 and he undergone surgery for removal of implants on 2872014. Hence looking into the nature of injuries and period of treatment, this tribunal awarded a sum of Rs.45,000/ under the head of Food and nourishment, Conveyance and Attendant charges.
38. Loss of Amenities of Life : The petitioner stated in in the petition and in his chief affidavit and also additional chief affidavit contending that after this accident he admitted to M.S.Ramaiah hospital and took conservative treatment as inpatient and he sustained Rs.5 lakhs medical expenses, Rs.1,00,000/ towards food and nourishment, Rs.50,000/ towards conveyance charges. In order to substantiate the above facts, he produced ExP7. On careful perusal of ExP7 it disclose that the petitioner has sustained the following injuries i.e., multiple abrasion over the right knee, CLW over the right knee, limb in attitude of extension and external at hip joint with tenderness, fracture of neck of left femur (type II) and injury No.1 is grievous in nature and injury No.2 is simple in nature. Further petitioner produced ExP8 and 9 and after remanding from the order of Hon'ble High Court of Karnataka, the petitioner produced ExP29 discharge summary. On perusal of ExP8, 9, 29, it indicates that the petitioner has taken treatment for fracture of left neck of femur and he underwent CRIF with CC screws on 1712012 and petitioner underwent meyer's muscle pedicle bone grafting using in quadrants femoris muscle on 37 2012. The petitioner underwent for removal of screws and admitted M.S.Ramaiah hospital on 2772014 and he discharged from the hospital on 3172014. In order to prove treatment took from hospital, he examined treated doctor as PW3 before this tribunal. He also deposed that petitioner has sustained fracture of left neck, femur in his left hip and this injury is grievous in nature and he came for removal of implants on 2772014 and he undergone surgery for removal of implants on 2872014. When the petitioner has sustained fracture neck of femur, neck of femur and injuries are united, the petitioner will not get same amenities to be enjoyed like tht of a normal man. So looking into the nature of injuries, this tribunal award Rs.1,00,000/under loss of amenities of life.
39. Loss of income during the period of treatment: The accident occurred on 1712012 and on the same day he was admitted to M.S.Ramaiah hospital as per ExP24 and totally the petitioner admitted as inpatient on 3 occasions and admitted on 171 2012 and discharged on 2012012 i.e., for four days and again he admitted on 2712012 and discharged on 2912012 i.e., for 3 days and again he admitted on 272012 and discharged on 1072012 i.e., for 9 days. Again he admitted for removal of implants on 2772014 and discharged on 3172014 i.e., for four days. So petitioner admitted as inpatient for 20 days on four occasions. The PW1 deposed before this tribunal he was working as Assistant professor in the department of electronics and communication in Nagarjuna engineering college and drawing salary of Rs.37,550/p.m. and he was on leave and he produced ExP18appointment letter dt.1322006 and along with application for leave from 1712012 to 17102012. So as per this leave application the petitioner has applied leave for nine months and petitioner has produced ExP19 i.e., receipt ExP20SSLC marks card, exP21PUC marks card, ExP22certificate of bachelor of engineer and ExP23marks card. So these documents shows that petitioner has completed the master of technology in engineering and working as Nagarjuna engineering college as an Assistant professor and he examined PW2 one Venkataraju and as per records placed by petitioner it shows that the petitioner was appointed as an Assistant professor on 2022006 and he was on leave from 1712012 to 18102010 without pay. This tribunal already taken income of the petitioner as Rs.31,847/p.m. On perusal of ExP12 it disclose that the hospital authorities issued certificate stating that petitioner is fit to duty on 18102012 and ExP13 are the income tax filing forms wherein the petitioner was drawing total salary of Rs.4,03,560/p.a. Therefore for the purpose of assessment of compensation the income of the petitioner taken as Rs.31,847/p.m. though he was on leave for nine months without pay the petitioner admitted as inpatient for only 20 days in the M.S.Ramaiah hospital. Hence the probable period for healing up of the injuries is about six months. Therefore this tribunal award a sum of Rs.1,91,082/ under the head Loss of income during the period of treatment.
40. Future medical expenses : The petitioner and his treated doctor i.e., PW3 deposed before this tribunal that the petitioner readmitted on 2772014 for removal of screws and implants and he underwent surgery for implant removal on 2872014 and he discharged on 3172014. The PW3 stated in his additional affidavit para 9 and 10 the petitioner is still on treatment due to his persistant pain and restricted ROM of his left hip associated with weakness and shortening of his lower limb. He has already developed post traumatic osteoarthritis of his left hip, due to avascularnecrosis of head of the left femur of left hip joint. For this, he is advised for a major surgery known as THR (Total Hip Replacement) or also known as THA (Total Hip Arthroplasty) for left hip joint and it is estimated to cost of approximately Rs.3,53,600/ in Ramaiah Memorial hospital, other charges are not included, the other charges may be cost around Rs.30,000/ to Rs.50,000/. During course of cross examination PW3 clearly admitted that there is no fracture to acetabulum (socket for hip joint) and ExP29 prepared by officials of finance department in M.S.Ramaiah hospital. Further PW3 admitted he has not get written consent from patient for replacement of hip joint. There is no any entry in case sheet regarding the patient/petitioner took physiotherapy treatment as advised by doctor. The PW1 also admitted during course of cross examination that he would examine the officials of billing section who has been issued ExP29 before this tribunal. But petitioner did not called the author of document i.e., ExP29 (financial estimate form of further surgery). The PW3 deposed due to persistant pain and restricted ROM of his left hip associated with weakness and shortening of his lower limb, it is necessary for replacement of left hip but as admitted by PW3 there is no injury caused to left acetabulum. If acetabulum get fracture it causes severe hip pain and that pain is worsened with the movement. If any nerves damaged, the patient may be feel numbness or a tingling sensation down of his leg and also he feel weakness in the leg. In the instant case, PW3 stated there is no injury to acetabulum though petitioner had persistent pain and restricted ROM of his left hip associated with weakness. The hip joint is the largest weight bearing joint in the human body, it is also referred to as bal and socket joint and is surrounded by muscles, ligaments and tendons. The thigh bone or femur and the pelvis joint form the hip joint. The hip joint is the junction where the hip joints the leg to the trunk of the body, it comprised of two bones. The thigh bone or femur and the pelvis which is madeup of three bones called illium, ischum and pubis. The femur is one of the longest bone in the human body, the upper part of the thigh bone consist of the femoral head, femoral neck and greater and lessor trochanters, the head of the femur joins the pelvis (acetabulam) to form the hip joint. Next to the femoral neck, there are two protrusions known as greater and lessor trochanters which serve as sights of mussle attachment. The present petitioner had persistent pain and restricted range of movements of his left hip, the replacement of hip joint does not necessary if patient treated the health care provider may recommend cruches or a walker, leg positioning device, pain relievers anti coagulants (blood thinners), surgery required in case of acetabular fracture, it severely injured, then only doctors advised for open reduction and internal fixation. If acetabulam weak or too damaged to repair surgeon may advice for total hip replacement by remove the damaged hip and cartlage and replaces with artificial parts. The present petitioner did not got any fracture to his acetabulum, though PW3 advised for replacement of hip joint, there could be chance of less charges for replacement of hip joint from one hospital to another hospital. The M.S.Ramaiah hospital was private hospital, he advised petitioner for replacement of hip joint in M.S.Ramaiah hospital and it would cost around Rs.3 lakhs to Rs.4 lakhs including cost , followup treatment, physiotherapy, xrays etc., PW3 also admitted during course of cross examination there could be chance of cost of replacement of hip joint differ from one hospital to another hospital. If petitioner really required for hip replacement, he can get in Government institutions and it may around Rs.1 lakh to Rs.1,25,000/. The estimation given by M.S.Ramaiah hospital is very expensive and too high. Considering the nature of injuries of petitioner, this tribunal awarded future medical expense for hip replacement of the left hip of the petitioner a sum of Rs.1,25,000/.
41. In view of the above reasoning, petitioner is entitled for the compensation under the following Heads:
SL. HEAD COMPENSATION AWARDED
NO.
1 Loss of future earnings Rs. 9,09,550=32
due to permanent
disability
2. Pain and sufferings Rs. 75,000=00
3. Medical expenses Rs. 1,38,341=97
4. Food, nourishment, Rs. 45,000=00
conveyance and
attender charges
5 Loss of amenities of life Rs. 1,00,000=00
6 Loss of income during Rs. 1,91,082=00
the period of treatment
7 Future medical Rs. 1,25,000=00
expenses
TOTAL Rs.15,83,974=29
COMPENSATION
AWARDED
The said total sum of Rs.15,83,974=29 is rounded off to
Rs.15,84,000/. Thus, the petitioner is entitled for the total
compensation of Rs.15,84,000/.
42. So in all I award total compensation of Rs.14,59,000/ (which excluding the interest on Rs.1,25,000/towards future medical expenses). The petitioner is entitled for interest at the rate of 6% p.a. on the said amount from the date of petition, till the date of deposit with the Tribunal.
43. In view of the judgment and order dt.27102021 in MFA 9825/2013 (MV) clubbed with MFA 10187/2013 (MV) passed by Hon'ble High court of Karnataka. This tribunal judgment findings pertaining to issue No.1 and liability dt.13082013 confirmed by the Hon'ble High court of Karnataka vide judgment dt.27102021. Therefore the earlier judgment dated 1382013 by this tribunal para 18 same recorded as it is.
44. With regard to the liability to pay the compensation is concerned, the 2nd respondent is the owner of the car and through both the respondents have specifically taken up contention that there is no negligence on the part of driver of the car i.e., 2 nd respondent, but looking to the police records and the evidence of PW1 due to rash and negligent driving on the part of the driver of the car i.e., the 2 nd respondent who is also owner of the car and due to his negligence the accident took place. Through the 2nd respondent appeared and filed written statement and also cross examined, but the 2 nd respondent is not at all entered the witness box to show that there is no negligence on his part and admitted that the petitioner is waiting for bus at about 7.45 a.m. the accident took place and immediately after the accident the petitioner was shifted to the hospital and his wife Bhavana has lodged the complaint. So, this clearly shows that there is rash and negligent driving on the part of the driver of the car i.e., the 2 nd respondent the accident took place. The policy issued on 1312012 which expired on 1212013. So, the policy was in force as on the date of accident and looking to the charge sheet there is no charge against the driver of the car i.e., 2nd respondent for the offences punishable u/s 3(1) r/w 181 of MV Act. So, the 2nd respondent has got valid driving licence to drive the Alto car at the time of accident. The counsel for the petitioner has much argued that the petitioner is entitled for compensation as prayed in the petition. The counsel for the respondent No.1 has much argued that there is no negligence on the part of the 2 nd respondent and due to his negligence the accident took place, but looking to the entire materials on records, the accident took place due to rash and negligent driving of the 2nd respondent the accident took place. So, when the policy was in force at the time of accident, the 1st respondent insurance company is statutorily liable to pay the compensation awarded by the tribunal. Accordingly, I answer issue No.2 partly in the affirmative.
45. Issue No.3 : In the result, I proceed to pass the following : : ORDER : The claim petition filed by the petitioner u/s 166 of the MV Act is allowed in part.
The respondents 1 and 2 are jointly and severally liable to pay total compensation of Rs.15,84,000/ to the petitioner along with interest on Rs.14,59,000/ at the rate of 6% p.a. from the date of petition till deposit of entire amount tribunal.
After deposit of the compensation amount, the petitioner shall deposit 50% of the awarded amount as FD in any nationalised or scheduled bank for a period of 3 years and remaining 50% along with entire interest shall be disbursed to the petitioner.
Advocate fee is fixed at Rs.1,000/.
Draw award accordingly.
(Dictated to the stenographer, through online computer, thereof is corrected and then pronounced by me in the open Court on this the 16th February 2022) (R.MAHESHA.) XXIV ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.
::A N N E X U R E::
LIST OF WITNESSES EXAMINED ON BEHALF OF THE PETITIONER: PW1 : Bhaskar S PW2 : Venkataraju Vanam PW3 : Dr.Harshad M Shah LIST OF DOCUMENTS MARKED ON BEHALF OF THE PETITIONER: Ex.P.1 : FIR Ex.P.2 : Complaint Ex.P.3 : Charge sheet Ex.P.4 : Spot mahazar Ex.P.5 : IMV report Ex.P.6 : Sketch Ex.P.7 : Wound certificate Ex.P.8 to 10 : 3 discharge summaries Ex.P.11 : Salary certificate Ex.P.12 : Medical certificate cum fitness certificate Ex.P.13 : Form No.16 IT return for the assessment year 201112 Ex.P.14 : Form No.16 IT return for the assessment year 201011 Ex.P.15 : 84 medical bills for Rs.1,31,844/ Ex.P.16 : 16 prescriptions Ex.P.17 : Authorisation letter Ex.P.18 : Appointment order Ex.P.19 : Notarised copy of receipt of research and development Ex.P.20 : Notarised copy of SSLC marks card Ex.P.21 : Notarised copy of PUC marks card Ex.P.22 : Notarised copy of BE degree certificate Ex.P.23 : 4 notarised copies of M.Tech marks cards Ex.P.24 : 2 case sheets Ex.P.25 : 16 xray films Ex.P.26 : CT scan films Ex.P.27 : IP hospital M H Ramaiah Ex.P.27 : Relieving order dated 27122021 Ex.P.28 : Admission letter to PHD program dated 14082010 Ex.P.28 : OPD (notes of disability) Ex.P.29 : Financial estimate form o f further surgery Ex.P.29 : Discharge summary (page No.1 to 6) Ex.P.30 : Xrays ( 5 photo copies ) Ex.P.30 : Medical bills (18 in Nos.for Rs.73,621/) LIST OF WITNESSES EXAMINED ON BEHALF OF THE RESPONDENTS: RW1 : Smt.M.S.Savitha LIST OF DOCUMENTS MARKED ON BEHALF OF THE RESPONDENTS: Ex.R1 : Authorisation letter Ex.R2 : Copy of the policy (R.MAHESHA.) XXIV ADDL. SCJ & ACMM, MEMBER, MACT, BENGALURU.