Karnataka High Court
United India Insurance Co. Ltd. And Anr. vs Rajeev Moses And Anr. on 8 March, 2001
Equivalent citations: 2002ACJ928, 2001 AIR - KANT. H. C. R. 1255, 2001 AIHC 3021, (2002) 2 ACJ 928, (2002) 3 TAC 555
JUDGMENT T.N. Vallinayagam, J.
1. The only point that is involved in this case is, whether the quantum of compensation at Rs. 1,95,488 for the following injuries:
(a) Fracture acetabular of right hip joint,
(b) Fracture of inferior pubic ramus,
(c) Right sided facial palsy, is just and reasonable and whether it is on the very high side?
2. The submissions made by the learned Counsel for the appellant is that even taking the grant in respect of the injuries as such, the grant of loss of income for the person on the date of accident being 48 years, at Rs. 1,69,488 is certainly not a reasonable one. According to him, the claimant was working as Industrial Promotion Officer in 1993 when the accident took place. Subsequently, he continued to be in employment enjoying all the benefits of promotion, increment, salary, etc. and absolutely there was no reduction or loss of income at all. A person who has not suffered any loss of income is not entitled for compensation under the head loss of income and the Tribunal has wrongly applied this head without having any nexus to the injuries concerned. The injuries being on hip and face can never stand in the way of the appellant from discharging the duties as an officer.
3. It is also significant according to him to point out that there is no iota of the evidence given by the appellant as to how he has lost his income. It is also submitted that though the accident took place in 1993, subsequently he was promoted as Assistant Director. It is also pointed out by the learned Counsel for the appellant that under column No. 28A of the petition, a sum of Rs. 3,00,000 is claimed as compensation towards loss of earning power. So the Tribunal ought to have considered whether there was loss of earning power and should not have jumped upon the mere calculation and applying some multiplier. In the absence of any evidence regarding loss of earning power which was not even spoken to by any other witnesses, the Tribunal cannot embark upon a suo motu inquiry and go to the extent of awarding something which is not asked for. Though in the petition, an averment has been made that he was working as an Industrial Promotion Officer which designation is very important in his department and not the petitioner is unable to carry out his official duties effectively (this was struck off and not pressed). On the other hand, it was elicited when he was in the box that he was promoted as Assistant Director in the same department. The learned Counsel also relied upon the views expressed by this Court and the other Bench to see the justness, equity and fairness of the compensation. On the other hand, Mr. Nataraju appearing for the respondent contended that in the light of the dictum of Supreme Court in the case of Chinnama George v. N.K. Raju , the appeal is not competent. In fact, in that case, the court referred to the judgment of Narendra Kumar v. Yarenissa , wherein it is held that "as to the maintainability of the appeal by the insurer and the owner, we are of the opinion that even in the case of joint appeal by the insurer and owner of the offending vehicle if an award has been made against the tortfeasors as well as the insurer even though an appeal filed by the insurer is not competent, it may not be dismissed as such".
The Supreme Court also observed in the quotations that in the cases no argument is addressed on behalf of the owner of the defending vehicle and there was only argument of counsel for the insurer. Thus on the question of loss of income, the learned Counsel submitted that the appellant has lost his hearing capacity. He referred to paras 22, 23 and 24 of the judgment and contended that three doctors have been examined to speak about the status of the claimant. Thus, he contended that the loss of income is due to these factors as spoken to by the doctors. I consider the submissions made by the counsel.
4. Considering the unreported judgment of this Court in M.F.A. No. 4204 of 1999 disposed of on 30.3.2000 by V.P. Mohan Kumar, J., wherein it is held that:
...One of the contentions urged by the learned Counsel for the respondent is that though he filed statement, no permission was granted to the insurance company to contest the case and as such the appeal is incompetent. It is seen from the records that insurance company was allowed to examine the witnesses. It is also seen that they had produced documents to contest the matter. Only formal permission as contemplated under Section 170 was not granted that certainly does not mean that they cannot contest, having allowed to comply with the requirement of said section. I overrule the objections of the counsel that the appeal is not competent. However, even if the insurance company do not succeed in the matter, it does not mean that claimant can be awarded huge compensation as the Tribunal has awarded in this case. The award of compensation has to be reasonable, just and proper. This is a case where, a fracture is sustained by the claimant. The income of the deceased is alleged as Rs. 4,000 per month. There is nothing on record to show that this was the income.
I am agreeable with the dictum laid down by my brother V.P. Mohan Kumar, J. The court should always see the justness, fairness and reasonableness of the amount of compensation. In this case, a person has got injuries and he stands compensated for that. There is no appeal by the claimant that the compensation granted in respect of the injuries is inadequate. On the other hand, the award includes Rs. 2,000 for longevity of life being shortened and Rs. 3,000 towards future medical expenses which was not the case set up or created by the claimant. On the question of loss of future income, one should have some nexus to the person or his employment. The injury should have directly affected the earning capacity or the earning power as the claimant himself has put it. Here is a man who is an Industrial Promotion Officer and whose injury on the hip and facial was viewed. It is not in dispute that he was promoted after injury with a higher salary. It is also submitted by the learned Counsel for the appellant that he had further promotions and further benefits. In the circumstances, nobody can imagine that the claimant has lost his income because of the accident. There are cases where a man who is a mechanic and his arm is broken, naturally his earning capacity would have been lost. A driver who has lost his eyesight be affected by the loss of his sight. A man who goes by bicycle to sell articles and not able to use cycle because he lost both his legs in the accident. But such is not the case at all here.
5. In my opinion, the introduction of compensation in motor accident claims is to serve the victims. The just, fair and proper compensation of the persons within the meaning of Section 168 of Motor Vehicles Act, or whose income is really affected by the accident and not the persons who had not lost even single paisa income subsequent to the date of accident. In this view, I am constrained to delete the award on the head of loss of income which is as fabulous a sum as Rs. 1,16,488. To that extent, the appeal is allowed. The amount if any in deposit, shall stand refunded to the appellant.