Karnataka High Court
National Insurance Co Ltd vs Girish Y H on 6 November, 2012
Bench: N.K.Patil, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6th DAY OF NOVEMBER, 2012
:PRESENT:
THE HON'BLE MR. JUSTICE N.K. PATIL
AND
THE HON'BLE MRS. JUSTICE B.S.INDRAKALA
M.F.A.No.3952/2008 (MV)
BETWEEN:
NATIONAL INSURANCE CO LTD
D.O.1, 3RD FLOOR, UNITY BUILDING
ANNEX, NO.72, MISSION ROAD
BANGALORE-27
NOW BY ITS REGIONAL OFFICE,
SHUBHARAM COMPLEX,
144, M.G.ROAD,
BANGALORE-560 001. ... APPELLANT
(BY SRI.A.N.KRISHNA SWAMY, ADVOCATE)
AND
1. GIRISH.Y.H
S/O Y M MALLAIAH SWAMY
AGED ABOUT 30 YEARS
R/A THARANAGARA POST
SANDUR TALUK,
BELLARY DISTRICT.
2. SURAPANENI VENKATESHWARA RAO
B-2, 4TH FLOOR,
JAGRUTHI RESIDENCY
EAST MAREDPALLY,
SECUNDERABAD
HYDERABAD-500 026. ... RESPONDENTS
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(BY SRI.GIRI MALLAIAH FOR C/R1, NOTICE TO R2
DISPENSED WITH VIDE COURT ORDER DATED
03.07.2009)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED: 29.10.2005 PASSED
IN MVC NO. 8681/2005 ON THE FILE OF THE XIV ADDL.
JUDGE, COURT OF SMALL CAUSES AND MEMBER, MACT,
BANGALORE CITY, (SCCH.NO.10), AWARDING A
COMPENSATION OF RS. 15,97,000/- WITH INTEREST @ 6%
P.A FROM THE DATE OF PETITION TILL DEPOSIT.
THIS M.F.A. COMING ON FOR HEARING THIS DAY,
N.K. PATIL, J., DELIVERED THE FOLLOWING:
:J U D G M E N T:
This appeal is by the insurer being aggrieved by the impugned judgment and award dated 29th of October 2005 passed in MVC 8681/2005 on the file of XIV Additional Judge and Member, Motor Accident Claims Tribunal, Bangalore, (SCCH-10) on account of the injuries sustained in a road traffic accident.
2. Since the quantum of compensation awarded by the Tribunal is disproportionate to the injuries sustained by the claimant in the road traffic accident 3 and is liable to be reduced substantially, the present appeal is filed by the insurer.
3. It is the case of respondent No.1/claimant that he was hale and healthy prior to the accident. On account of the injuries sustained in the accident, he has filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.30,00,000/- with interest at 6% per annum contending that at about 3.15 a.m. on 17.10.2005, when he along with another colleague was travelling in a bus bearing registration No. KA 37 3907 on NH 4 - Bangalore-Poona road and near Sira, the said bus being driven by its driver in a rash and negligent manner, dashed against the lorry bearing Reg. No. KA 40 4609 near Jaimatha Dhaba. Due to the impact, he sustained injuries on account of which he underwent treatment as in-patient in the hospital and also underwent surgeries. He has spent huge amount towards medical, conveyance, nourishing 4 food and attendant charges. He sustained 80% disability to the left lower limb, 58% to the right lower limb and 59.3% to the whole body. He also sustained fracture of both bones of right and left legs for which he underwent for POP slabs and was in hyperemic shock on account of which he had been admitted to the Sanjay Gandhi Hospital, where he underwent treatment from 17.10.2005 to 29.10.2005. By profession he was an engineer. Due to the injuries sustained, he discontinued his job. He contended that he was working as an Assistant Engineer in Hivac Pvt. Ltd., earning Rs.15,000/- per month. But however the salary certificate produced and marked as Ex.P.9 showed that he was getting the salary of Rs.7,925/-. Thereafter he has undergone further treatment in the Kamala Nursing Home, Rajajinagar, Bangalore from 29.10.2005 to 18.1.2006. Contending all these facts, a claim petition was filed against the insurer, driver and owner of the bus.
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4. To substantiate his submission, 1st respondent/claimant has got examined himself as P.W.1 and examined 3 other witnesses and got marked Exs.P.1 to P. 21. The appellant/insurance company has got marked Ex.R.1 the insurance policy and has not got examined any other witnesses.
5. The Tribunal after appreciation of the oral and documentary evidence and other materials on record, allowed the claim petition filed by the 1st respondent/claimant awarding a sum of Rs.15,97,000/- under different heads with interest at 6% per annum from the date of the petition till realization and taking the income of the claimant at the rate of Rs.6,000/- per month and permanent disability at 100% and applying the appropriate multiplier has awarded a sum of Rs.11,52,000/- towards loss of future income and awarded compensation under other heads. Being dis- satisfied with the impugned judgment and award 6 passed by the Tribunal, the appellant/insurance company has presented this appeal seeking appropriate relief.
6. The learned Counsel for the insurance company at the outset contended that the Tribunal has committed an error in taking 100% permanent disability to the whole body and the doctor P.Ws. 2 - Dr. Prakashappa T.H. after medical and clinical examination has assessed the disability at the rate of 80% to the left lower limb, 58% to the right lower limb and 59.3% to the whole body. Hence the Tribunal assessing disability at the rate of 100% to the whole body, and determining the loss of dependency is on the higher side and is not sustainable and requires to be modified. Further he submitted that a sum of Rs. 25,000/- awarded towards shortening of life span and Rs.11,52,000/- awarded towards loss of future income also is not sustainable and the same requires to 7 be re-determined by modifying the impugned judgment and award passed by the Tribunal.
7. As against this, the learned Counsel for the 1st respondent/claimant interalia contended that the impugned judgment and award passed by the Tribunal is after due consideration of the oral and documentary evidence and other materials available on record and hence, it does not call for interference.
8. After hearing the learned Counsel appearing for both parties and after evaluation of records and materials available on record including impugned judgment and award passed by the Tribunal, the point that arises for consideration is:
"Whether the quantum of
compensation awarded by the
Tribunal is liable to be reduced or
not?
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9. The occurrence of the accident and injuries sustained by the claimant are not in dispute. The claimant was aged about 27 years and was hale and healthy prior to the accident. It is also not in dispute that he was working as a Assistant Engineer in Hivac Pvt. Limited. To show that he was earning a salary of Rs.15,000/- p.m., he has not produced any credible document but he has produced Ex.P.9 which shows that he was getting the salary of Rs.7,925/-. Hence, the same is accepted. The doctor has assessed the permanent disability at the rate of 59.3% to the whole body and the same rounded off to 60% instead of 59.3% and since he was aged about 27 years, the appropriate multiplier is 17. Accordingly we re-determine compensation towards loss of future income at Rs.9,70,020/- (7,925 x 12 x 60/100 x 17) . Further the Tribunal was not justified in awarding only a sum of Rs.20,000/- towards conveyance, nourishment and attendant charges which is on the lower side since the 9 claimant had undergone treatment for a period of 60 days as inpatient. He has discontinued his job due to discomfort and unhappiness which might persist throughout his life and as he is a young boy, his marriage prospectus may also be affected. Taking all these relevant factors as referred supra, we deem it proper to award a sum of Rs.50,000/- towards conveyance, nourishing food and attendant charges as against Rs.20,000/- , Rs.1,00,000/- towards loss of amenities, discomfort and unhappiness as against Rs.75,000/-, Rs.1,00,000/- towards loss of marriage prospects as against Rs.50,000/- to meet the ends of justice. The Tribunal was right in awarding a sum of Rs.1,50,000/- towards injury, pain and agony, Rs.1,25,000/- towards medical expenses, Rs. 25,000/- towards shortening of life span and the same does not call for interference. The 1st respondent/claimant is entitled for a compensation under conventional heads as follows:
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Injury, pain and suffering Rs. 1,50,000/-
Medical expenses Rs. 1,25,000/-
Conveyance, nourishment and Rs. 50,000/-
attendant charges
Loss of amenities, discomfort Rs. 1,00,000/-
and unhappiness
Loss of future income Rs. 9,70,020/-
Loss of marriage prospects Rs. 1,00,000/-
Shortening of life span Rs. 25,000/-
Total Rs.15,20,020/-
10. Thus, in all, the claimant is entitled to a compensation of Rs.15,20,020/- as against Rs.15,97,000/- awarded by the Tribunal. There will be reduction of Rs.76,980/-.
11. For the foregoing reasons, the appeal filed by the insurance is allowed. The impugned judgment and award dated 19-10-2005 passed by the Tribunal in MVC No.8681/2005 is hereby modified reducing the compensation by a sum of Rs. 76,980/-.
The first respondent-insurance company is directed to deposit the remaining compensation amount 11 with interest within a period of three weeks from the date of receipt of copy of this judgment and award.
The apportionment ordered by the Tribunal gets proportionately reduced to the extent of reduction made by this Court.
The amount deposited by the insurance company shall be transferred to the jurisdictional Tribunal immediately.
Office to draw Award accordingly.
Sd/-
JUDGE Sd/-
JUDGE NSU