Karnataka High Court
N Sathyanarayana Rao vs G R Shanmugappa on 6 February, 2020
Bench: Alok Aradhe, Ravi V Hosmani
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
MFA NO. 3498 OF 2014 (MV-I)
BETWEEN:
N. Sathyanarayana Rao
S/o Sri. Nagapppa,
Aged about 64 years,
Residing at No.109, "Skanda",
Doddabettahalli Layout,
Vidyaranyapura Post,
Bangalore 560 097.
... APPELLANT
(By Smt. Swathi Manjunath, Advocate for
Sri. Srinivasa, Advocate)
AND:
1. G.R.Shanmugappa
S/o late Rudrappa
Adult,
Partner, M/s Blend Pack,
No.19/3, 9th Mile, Hosur Road,
Basavanapura, Electronic City Post,
Bangalore 560 100
2. Mahadevaiah
S/o Sri Kashi Puttaiah
Aged about 30 years,
Residing near Government School,
Chikkenahalli,
2
Anjanapura Post,
Kailancha Hobli,
Ramanagara Taluk & District
3. Oriental Insurance Company Limited
(a Government of India Undertaking)
No.20, 2nd floor, 9th Main,
Opp. Pai Viceroy Hotel,
Jayanagar III Block,
Bangalore 560 011.
(Rep. by its branch Manager)
... RESPONDENTS
(By Sri. Ashok N Patil, Advocate for R.3)
( R.1, 2 and R.4 served and unrepresented)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION
173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND
AWARD DATED 26/10/2013 PASSED IN MVC NO.8037/2010 ON THE
FILE OF THE 7TH ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT-
3, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.01.2020, THIS DAY, RAVI V. HOSMANI J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The claimant has filed this appeal under section 173(1) of the Motor Vehicles Act, seeking for enhancement of compensation, challenging the judgment and award dated 26.10.2013 in M.V.C.No.8037/2010 passed by the VII Additional 3 Small Causes Judge, Member, MACT-3, Court of Small Causes, Bangalore (hereinafter referred to as " the MACT").
2. In order to appreciate the submissions, a brief facts of the case are required to be stated:
On 14.11.2009, the claimant was riding pillion on a moped bearing registration No. KA-15-J-1270 and was going towards Doddabettahalli layout, on Vidyaranyapura Main road. At about 11.00 a.m., when he had reached near Mother Dairy, Yelahanka town, a milk tanker bearing registration No. KA-01-AC-848 collided with the moped on which the claimant was riding. The said accident occurred due to the rash and negligent driving by the driver of the milk tanker. In the accident, the claimant suffered the following injuries: right temporal haemorrhagic contusion with SDH, head injury, laceration over back of left knee and cut injury over scalp.
3. Claiming that due to the disability suffered as a result of the injuries, there was loss of earning capacity etc., the claimant filed claim petition under Section 166 of the Motor Vehicles Act in M.V.C.No.8037/2010. It was stated therein that the claimant 4 was unable to continue in the job and was constrained to take voluntary retirement and therefore, there was loss of earning capacity. And that the claimant was also entitled for being compensated adequately towards pain and suffering, loss of income during laid up period, conveyance, attendance, food and nourishment, loss of amenities, medical expenses etc., and that the award passed by the MACT was grossly inadequate.
4. Upon service of notice in the claim petition, the owner of the milk tanker did not appear and was placed ex-parte. The respondent No.3 - insurer of the milk tanker entered appearance and filed objections, admitting insurance coverage, however, disputing the claim petition averments with regard to the age, income and avocation of the claimant.
5. In support of the claim petition, the claimant examined himself and four other witnesses -P.Ws.-1 to P.W-5 and got marked documents from Exs.P.1 to P.95. The respondent No.3 did not adduce any rebuttal evidence. After considering the same, the MACT passed an award for a total sum of `4,23,450/- under the following heads:
5
1. Pain and Agony Rs. 60,000/-
2. Actual Medical bills Rs. 3,25,450/-
3. Attendant charges (Rs.200/- per day(200 X 30) Rs. 6,000/-
4. Conveyance, food and nutrition Rs. 12,000/-
5. Loss of amenities Rs. 20,000/-
Total Rs. 4,23,450/-
6. While considering the claim for compensation towards loss of future earnings, the MACT has taken note of the fact that the claimant was working as a clerk in the Karnataka State Housing Federation Corporation, on a monthly salary of `16,890/- and had taken voluntary retirement after the accident in question. The MACT, therefore, held that there was no loss of earning, as the claimant had received substantial settlement from his employer. The MACT also found that as the loss of employment was due to the claimant's own volition, a claim for compensation under this head was not tenable. 6
7. The learned counsel for the appellant Smt. Swathi Manjunath, submitted that the MACT had committed a grave error in not awarding any compensation under the head of loss of future earning. It was further contended that even the award under the remaining heads were also inadequate and sought enhancement. In support of her submissions, the following decisions have been cited:
i) 2009 ACJ 1298 Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another.
ii) (2010) 10 SCC 254 Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. And Anr.
iii) (2011) 1 SCC 343 Raj Kumar Vs. Ajay Kumar & Anr.
iv) AIR 2012 SC 459 : (2011) 10 SCC 665 Sanjay Batham Vs. Munnalala Parihar and others
v) 2012 (4) SCALE 164 M. Mani Vs. Divisional Manager, New India Assurance Co.,Ltd., and Another.
vi) 2013 AIAR (Civil) 718 Neerupam Mohan Mathur Vs. New India Assurance Co.,
vii) 2013 AIAR (Civil) 713 S. Manickam Vs. Metropolitan Transport Corp. LTD.
viii) 2013 AIAR (Civil) 662 Rajesh Ors. Vs Rajbir Singh & Ors.7
8. Shri. Ashok N Patil, learned counsel for respondent No.3-insurer of the offending vehicle supported the impugned award and opposed any enhancement. In view of the above, the only issue that arises for consideration in this appeal is:
"Whether the claimant/appellant is entitled for enhancement of compensation and if so, by what amount?"
9. Since, it is urged that the claimant was constrained to take voluntary retirement due to the disability suffered after the injuries in the accident, there is loss of earning capacity attributable to the injuries suffered in the accident and the MACT has also lost sight of one more important aspect of the matter, which is that the claimant could have taken voluntary retirement on any count as per his eligibility and could have taken up employment elsewhere. When there is proof of permanent disability, the MACT ought to be proactive in order to ascertain the loss of earning capacity. As held by the Hon'ble Supreme Court in the case of "RAJKUMAR VS. AJAY KUMAR, 2011(1) SCC 343", when there is medical evidence tendered to the 8 effect that there is permanent disability, the MACT does not function as a neutral umpire as in a civil suit, but as a active explorer and seeker of truth, who is required to hold an enquiry into the claim for determining 'just compensation'.
10. In the present case, the doctor examined by the claimant as P.W.5 has assessed the disability of the claimant at 40% to the whole body. It has been noted by the MACT that this evidence remained unimpeached. However, the loss of earning capacity due to the disability has to be assessed based on some guess work. It would be reasonable, if it is taken at 25%.
11. However, the income that has to be considered for the purpose of assessing the compensation under this head cannot be with reference to the salary that the claimant was earning working as a clerk with the Karnataka State Housing Development Federation Corporation. Since there is no evidence as to the other avocation that the claimant would have undertaken after taking voluntary retirement and the income from such alternative avocation, the same can only be considered on notional terms. Since the date of the accident is 9 14.11.2009, the notional income adopted for the said period by the High Court Legal Services Authority at `5,000/- p.m. is to be considered. Since the claimant was aged 59 years on the date of the accident, the multiplier applicable would be '9' as per the decision of the Hon'ble Supreme Court in Smt. Sarla Verma's case referred supra. Accordingly, the loss of future earning would be `5000 X 25% X 12 X 9= `1,35,000/-. The same is awarded to the claimant/appellant towards loss of future earning.
12. On perusal of the award, it is seen that the MACT has awarded a sum of `6,000/- towards attendant charges and `12,000/- towards conveyance, food and nutrition, which are on the lower side and the same is enhanced to `30,000/- put together. The award of `20,000/- towards loss of amenities is also enhanced to `30,000/-, keeping in mind the principles laid down in Raj Kumar's case and Sanjay Batham's case referred supra.
13. Apart from the above, it is claimed that the claimant lost salary during the period of treatment i.e., for about three 10 months. Though there is no evidence on record to show that there was actual loss of salary during the said period, by some guess work it can be safely be assumed that the claimant may have lost leave standing to his credit especially, earned leave. Hence, a sum of `25,000/- is awarded under the head of loss of income during laid up period and loss of earned leave or leave.
14. The MACT after exhaustively verified the medical bills and has awarded reimbursement of the amount of actual medical bills. In our view, the same does not call for any enhancement.
To the extent stated above, the award passed by the MACT is modified.
The appeal is disposed of.
Sd/-
JUDGE Sd/-
JUDGE Psg*