Karnataka High Court
M/S New India Assurance vs K S Muralidhar on 12 November, 2020
Bench: Alok Aradhe, H T Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No.1132 OF 2016(MV)
C/W
MFA No.2573 OF 2016(MV)
MFA 1132/2016
BETWEEN:
M/s New India Assurance Company Limited,
R.O.No.2B, Unity Building Annex,
Mission Road, Bengaluru-560 027,
Now Rep. by its,
Divisional Office-III, Appeals Hub,
No.9/2, Mahalakshmi Chambers,
2nd Floor, M.G. Road,
Bengaluru-560 001.
Rep. by its Duly constituted Attorney.
.... Appellant
(By Sri.B.C.Shivanne Gowda, Adv. for
Sri. A.M.Venktesh, Adv.)
AND
1. K.S. Muralidhar,
2
S/o. K.S. Sampath Kumar,
Aged about 43 years,
R/at No.3/13, 1st Floor,
3rd Cross, B.S.K. 3rd Stage,
Hoskerehalli, Bengaluru-560 085.
2. Smt. R.Subbulakshmi,
W/o Radhakrishnan,
Aged about 41 years,
R/at No.25, Ramanujam Street,
Rajakadai, Tiruvallur District,
Tamil Nadu-600019.
...Respondents
(By Sri. A.S.Girsh, Adv. for C/R1:
Notice to R2 is dispensed with
v/o dated:13.06.2016)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated:17.04.2015
passed in MVC No.3955/2009 on the file of the 9th
Additional Small Causes Judge & 34th ACMM, Member,
MACT-7, Bengaluru, awarding compensation of
Rs.58,09,930/- with interest at 6% p.a. from the date
of petition till the date of payment.
IN MFA 2573/2016
BETWEEN
Sri. K.S.Muralidhar,
S/o. K.S. Sampath Kumar,
Aged about 43 years,
R/at No.3/13, 1st Floor,
3rd Cross, B.S.K. 3rd Stage,
Hoskerehalli, Bengaluru-85.
....Appellant
(By Sri. A.S.Girish., Adv.)
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AND
1. Smt. R.Subbulakshmi,
W/o Radhakrishnan,
Aged about 41 years,
R/at No.25, Ramanujam Street,
Rajakadai, Tiruvallur District,
Tamil Nadu-600019.
2. The New India Assurance Co. Ltd.,
R.O.No.2B, Unity Building Annex,
Mission Road, Bengaluru-27.
By its Manager.
...Respondents
(By Sri. B.C.Shivanne Gowda, Adv. for
Sri. A.M.Venkatesh, Adv. for R2:
v/o dated:30.06.2016 notice to
R1 is dispensed with)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated: 17.04.2015
passed in MVC NO.3955/2009 on the file of the 9th
Additional Small Causes Judge & 34th ACMM, Court of
Small causes, Member, MACT-7, Bengaluru, partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
These MFAs coming on for admission, this day,
H.T. Narendra Prasad J., delivered the following:
JUDGMENT
MFA No.1132/2016 has been filed by the Insurance Company and MFA No.2573/2016 has been 4 filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 17.04.2015 passed by the Motor Accident Claims Tribunal. Since, both these appeals arise out of the same accident, they are heard together and are being decided by this common judgment.
2. Facts giving rise to the filing of the appeals briefly stated are that on 22.08.2008 at about 5.30 a.m., the claimant and others were traveling in their company vehicle Tempo Traveler bearing registration No.KA-02-D-9626 towards his company situated at Kasaba industrial area, Hoskote for work, at that time, Container Lorry bearing registration No.TN-04/D-1047 being driven by its driver at a high speed and in a rash and negligent manner came from opposite direction, dashed to the vehicle of the claimant in front of Avalahalli H.P.Petrol Bunk, Bangalore-Kolar 5 NH-4, Hoskote, Bangalore. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.
3. The claimant filed a petition under Section 166 of the Act on the ground that he was working in LM Glass fiber (India) Pvt. Ltd., and was earning gross salary of Rs.28,221/- p.m. and apart from this work, he was also doing LIC agent work and was earning commission of Rs.30,000 to 40,000 per annum. It was pleaded that due to the injuries sustained by him, he is completely bed ridden and he is unable to do his daily routine work. He has become permanently disabled, thereby he has lost his future income. It was further pleaded that the adverse impact and gravity of injury is so serious that he has to be completely in the bed for the rest of his life and with great difficulty. It was pleaded that he also spent huge amount towards medical expenses, conveyance, etc and he further 6 need more money to meet his future medical expenses. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver, as such 1st respondent being the registered owner and 2nd respondent being insurer of the container lorry bearing registration No.TN-04/D-1047 are jointly and severally liable to pay the compensation to him.
4. On service of notice, the respondent No.2 appeared through its counsel and filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is not maintainable either in law or on facts of the case and also for non-joinder of necessary parties. It was further pleaded that 1st respondent did not report and furnish the R.T.O. documents such as, R.C.Book, Permit, F.C., pertains to the container Lorry bearing registration No.TN-04/D-1047 and driver of 7 the said Lorry did not possess valid and effective licence as on the date of accident and hence insurance company is not liable to pay compensation. It was further pleaded that the quantum of compensation claimed by the claimant together with interest jointly and severally from the respondent Nos.1 and 2 is without any basis, arbitrary and astronomical. It was further pleaded that the insurance company has not admitted the issuance of policy of insurance being the said policy might have been issued by any one of its offices at Tamilnadu State. It was further pleaded that, issuance of policy is subject to terms and conditions as provided under the M.V.Act, 1988. Hence, he sought for dismissal of the petition.
The respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
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5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant himself was examined as PW-1 and Dr.N.C.Prakash as PW-2 and Mr.Lakshmi Narasimhan as PW-3 and got exhibited documents namely, Ex.P-1 to Ex.P-38. On behalf of the respondents, two witnesses were examined as RW-1 and RW-2 and got exhibited documents namely Ex.R-1 to Ex.R-4. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending vehicle by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs.58,09,930/- along with interest at the rate of 6% p.a. and directed the respondent No.2 to deposit the compensation amount along with 9 interest. Being aggrieved, these appeals have been filed.
6. Sri. B.C.Shivanne Gowda, learned counsel appearing for the Insurance Company has contended that the tribunal is not justified in considering the whole body disability as 100%, the same is on higher side. Secondly, he has contended that the Tribunal has taken the monthly income of the claimant as Rs.27,867/-, but it has failed to deduct the Income Tax and Profession Tax from the said income. Thirdly, the employer of the claimant has paid compensation of Rs.6,61,371/- to the claimant, but the tribunal has failed to deduct the said amount from the total compensation awarded to the claimant. Fourthly, considering the nature of injuries, the overall compensation awarded by the Tribunal is on the higher side. Hence, he sought for allowing the appeal 10 filed by the insurance company and dismiss the appeal filed by the claimant.
7. Per contra, learned counsel appearing for the claimant has contended that as per wound certificate, the claimant has sustained (a) Fracture of co-vertebra with anterior dislocation over C-7; (b) Cervical spine revealed dislocation of C6 over C7; (c) C7 bilateral transverse process fracture; and (d) C6 fracture both laminae and body. The claimant has examined Dr.N.C.Prakash as PW-2. In his testimony, he has deposed that due to the accident, the claimant has suffered 85% whole body disability. Due to the said disability, the claimant was unable to do his work and has resigned from the job as Assistant Team Leader at LM Glass Fibers India Pvt. Ltd. He was also working as LIC agent, and since he could not reach the minimum target, i.e., minimum policy of assured amount of Rs.1,00,000/-, he was terminated from the 11 agency. Due to the injuries sustained by the claimant and disability suffered by him, he was unable to do his day-today work. Therefore, the tribunal considering the evidence of the parties and materials available on record has rightly considered the functional disability as 100%. In support of his contention, he has relied on judgment of Apex Court reported in the case of N.Manjegowda -v- Manager, United India Insurance Company Limited reported in 2014 (3) SCC 584.
Secondly, he contended that, it is very clear from the evidence of the doctor and documents produced before this court, the claimant has sustained 100% permanent physical disability and he was unable to do his regular work and therefore, he is entitled for future prospects. But the tribunal has failed to grant any compensation under the head of 'future prospectus'. In support of his contention, he 12 has relied on judgment of Apex Court in the case of 'PAPPU DEO YADAV vs. NARESH KUMAR AND OTHERS' 2020 SCC Online SC 752 and 'ERUDHAYA PRIYA vs. STATE EXPRESS TRANSPORT CORPORATION LTD. 2020' SCC Online SC 601.
Thirdly, due to the accident, the claimant has suffered functional disability of 100%. The employer has paid Rs.6,61,371/- which includes loss of salary from January 2009 to September 2009, Leave encashment, leave travel allowance, Gratuity and compensation amount on humanitarian grounds by appreciating the claimant's work. It is very clear from the evidence of PW-3, employer of the claimant that the amount paid to the claimant as compensation is on humanitarian ground. Therefore, the said amount cannot be deducted from the compensation, which he is entitled due to the injuries suffered in road traffic 13 accident. In support of his contention, he has relied upon the judgment of the Apex Court in the case of Sebastiani Lakra and Ors. -v- National Insurance Company Limited and Anr. reported in AIR 2018 SC 5034.
Fourthly, considering the nature of injuries and depositions of the doctor and the claimant, the compensation awarded by the tribunal under the heads of 'pain & suffering' and 'loss of amenities' and 'conveyance, food, nourishment and attendant charges' are on the lower side.
Hence, he prays for allowing the appeal filed by the claimant and dismiss the appeal filed by the Insurance Company.
8. We have considered the submissions made by the learned counsel for the parties and have perused the records.
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9. It is not in dispute that the accident has occurred due to rash and negligent driving of the offending vehicle by its driver.
At the time of the accident, the claimant was aged about 36 years. He was working as Assistant Team Leader at LM Glass Fibers India Pvt. Ltd. PW-3, the Manager, Plant HR and Admin, employer of the claimant has stated that at the time of the accident, the claimant was drawing salary of Rs.24,546/- for the month of April 2008. The claimant has produced salary slips at Ex.P-19 and bank statement at Ex.P-33. As per Ex.P-37, Form-16 issued by the employer for the assessment year 2008-09, it is very clear that after statutory deductions under the Income Tax Act, the total income of the claimant was within the taxable limit. Therefore, taking into consideration the evidence of PWs-1 and 3 and materials available on record, the Tribunal has rightly taken the monthly 15 salary as Rs.24,593/-, which is being earned by the claimant working as Assistant Team Leader at LM Glass Fibers India Pvt. Ltd. Further, it is not in dispute that the claimant was also working as LIC agent and he has produced licence issued by the concerned LIC authority and he was getting yearly commission. RW-1 has not disputed the licence issued to the claimant as per Exs.P-21 by their office and also not disputed that he was working as LIC agent and getting yearly commission. As per Ex.P-22, TDS certificate, the claimant has received commission of Rs.18,067/- for the year 2006-07, Rs.53,455/- for the year 2007- 08, Rs.46,350/- in the year 2008-09. Considering the same, the Tribunal has rightly taken the average monthly commission as Rs.3,274/-, which is being earned by the claimant as LIC agent. Therefore, the Tribunal has rightly taken the total monthly income of 16 the claimant as Rs.27,867/- (Rs.24,593/- + Rs.3,274/-).
In respect of disability is concerned, the claimant has sustained post traumatic quadriparetic secondary to C6-7, C5-6 fracture dislocation. He has stated that he underwent major surgery on 28.8.2008 for mobilization and stabilization purpose and the assurance given by he doctor regarding recovery is only 5% and expected post operative complications including prolonged ventilator support, tracheotomy was done using protex tube No.8 and he was discharged from the hospital on 9.12.2008 with advise for follow up treatment. He has further stated that the complication of the injury has developed collapse of right upper lobe, which was managed with bronchoscope and aggressive physio in consolation with pulmologists. He has taken treatment from 22.8.2008 to 9.12.2008 and after discharge from 17 Hosmat hospital, again he took treatment for urinary problem followed by bleeding. He is unable to continue his work and he has resigned from the job as Assistant Team Leader. Since, he has not reached the target as LIC Agent, he was terminated from the said agency. PW.2 has stated that, he examined the claimant on 30.09.2020 for assessment of disability and he complains of no sensation to below the C-7 Dermatome, lost sensation of bowel and urinary system, no control below the neck and needs assistance for every activity. He has further stated that, on examination, he found that, at present he is in wheel chair bound with no movements(Grade 0/5) in both lower limbs, minimal movements in bilateral upper limb proximally with wrist being very weak (1/5 power) and grip is not possible. He has further stated that, he has no urinary control, has no sensation of bowels and is on urinary catheter and he needs help 18 for all his day to day activities. He cannot do any work and he has almost no chance of further improvement and impairment is likely to be permanent and all put together he has a disability of about 85% to the whole body. Even in the cross examination, PW-2, doctor has stated that it is not necessary to remove the implants during the life time of the claimant and catheter has been regularly used by the claimant because he has no urinary sensation and he has to take treatment all along his lifetime. He has assessed the whole body disability at 85%. Taking into consideration the evidence of PW-1 and PW-2 and injuries mentioned in the wound certificate, the Tribunal has rightly taken the permanent functional disability at 100%.
The claimant is aged about 36 years at the time of the accident and multiplier applicable to his age group is '15'. The monthly income of the claimant is 19 assessed at Rs.27,867/-. In view of the law laid down by the Hon'ble Apex Court in the case of PAPPU DEO YADAV (supra) and ERUDAYA PRIYA (supra), the claimant is entitled for addition of future prospects since he has suffered 100% functional disability. In view of the law laid down by the Hon'ble Apex Court in the case of 'NATIONAL INSURANCE CO. LTD. -v- PRANAY SETHI AND OTHERS' AIR 2017 SC 5157 since the claimant is below the age of 40 years, he is entitled for addition of 40% of income towards future prospects. Hence, the monthly income of the claimant comes to Rs.39,014/- (Rs.27,867 + 40%). Thus, the claimant is entitled to Rs.70,22,520/- (Rs.39,014*12*15*100%) on account of 'loss of future income'.
Further, considering the nature of injuries sustained by the claimant, the compensation awarded 20 by the Tribunal under other heads are just and reasonable and same remains unaltered.
10. In respect of compensation of Rs.6,61,371/- paid by the employer to the claimant is concerned, the same is paid to the claimant towards loss of salary from January 2009 to September 2009, Leave encashment, leave travel allowance, Gratuity and compensation amount on humanitarian grounds by appreciating the claimant's work. The Apex Court in the case of Sebastiani Lakra (supra) in paragraph Nos. 12, 13 & 14 has held as follows:
"12.The law is well-settled that deductions cannot be allowed from the amount of compensation either on account of insurance, or on account of pensionary benefits or gratuity or grant of employment to a kin of the deceased. The main reason is that all these amounts are earned by the deceased on account of contractual relations entered into by him with others. It 21 cannot be said that these amounts accrued to the dependents or the legal heirs of the deceased on account of his death in a motor vehicle accident. The claimants/dependents are entitled to just compensation under the Motor Vehicles Act as a result of the death of the deceased in a motor vehicle accident. Therefore, the natural corollary is that the advantage which accrues to the estate of the deceased or to his dependents as a result of some contract or act which the deceased performed in his left time cannot be said to be outcome or result of the death of the deceased even though these amounts may go into the hands of the dependents only after his death.
13. As far as any amount paid under any insurance policy is concerned whatever is added to the estate of the deceased or his dependents is not because of the death of the deceased but because of the contract entered into between the deceased and the insurance company from where he took out 22 the policy. The deceased paid premium on such life insurance and this amount would have accrued to the estate of the deceased either on maturity of the policy or on his death, whatever be the manner of his death. These amounts are paid because the deceased has wisely invested his savings. Similar would be the position in case of other investments like bank deposits, share, debentures etc.. The tortfeasor cannot take advantage of the foresight and wise financial investments made by the deceased.
14. As far as the amounts of pension and gratuity are concerned, these are paid on account of the service rendered by the deceased to his employer. It is now an established principle of service jurisprudence that pension and gratuity are the property of the deceased. They are more in the nature of deferred wages. The deceased employee works throughout his life expecting that on his retirement he will 23 get substantial amount as pension and gratuity. These amounts are also payable on death, whatever be the cause of death. Therefore, applying the same principles, the said amount cannot be deducted. "
The said decision of the Apex Court is in respect of the case of death, whereas, the instant case is in respect of injury. Hence, the same principle is also applicable to the case of injury. Therefore, in view of the above said decision of the Apex Court, the compensation of Rs.6,61,371/- paid by the employer to the claimant on the humanitarian grounds cannot be deducted from the compensation, which the claimant is entitled due to the injuries sustained by him in the road traffic accident under the Motor Vehicles Act. The Tribunal has rightly not deducted the said amount from the compensation awarded to the claimant. 24
11. Thus, the claimant is entitled to a total compensation of Rs.78,16,390/- as against Rs.58,09,930/- awarded by the Tribunal.
The Insurance Company is directed to deposit the compensation amount along with interest within a period of four weeks from the date of receipt of copy of this judgment excluding interest for the compensation awarded under the head of 'future medical expenses'.
Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal filed by the Insurance Company is dismissed. The appeal filed by the claimant is allowed-in-part.
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The amount in deposit is ordered to be transferred to the Tribunal.
Sd/-
JUDGE Sd/-
JUDGE DM/-