Karnataka High Court
Punyashree. H vs Smt. Dr. Jayamma on 5 October, 2020
Bench: Alok Aradhe, H T Narendra Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF OCTOBER 2020
PRESENT
THE HON'BLE MR.JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA NO.2042 OF 2017 (MV)
C/W
MFA NO.3380 OF 2017 (MV)
IN MFA 2042/2017
BETWEEN:
Punyashree H.,
D/o Hanumantharayappa,
Aged about 25 years,
R/at Maruthi Nilaya,
1st Cross, K.R.Extension,
Tumakuru-572 101.
.... Appellant
(By Sri. M.R. Ravindra, Adv.)
AND
1. Smt. Dr. Jayamma,
W/o Hanumantharayappa,
Aged about 56 years,
Jayashree Nursing Home,
1st Cross, K.R. Extension,
2
Tumakuru-572101.
2. Branch Manager,
New India Assurance Co. Ltd.,
Shopping Complex,
B.H.Road, Tumakuru-572101.
...Respondents
By Sri.T.P.Rajendra Kumar Sungay, Adv. for R1:
Sri. B.R.Venkatesh Kamath, Adv. for R2.)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:22.09.2016
passed in MVC No.42/2008 on the file of the II
Additional Senior Civil Judge, MACT, Tumakuru, Partly
allowing the claim petition for compensation and
seeking enhancement of compensation.
IN MFA 3380/2017
BETWEEN:
The Manager,
The New India Assurance Company Limited,
Branch Office,
Shopping Complex,
B.H.Road, Tumakuru-572 101.
By the Manager,
The New India Assurance Company Limited,
TP Claims Hub,
2nd Floor, Mahalakshmi Chambers,
M.G.Road,
Bengaluru-560001.
.... Appellant
(By Sri. B.R.Venkatesh Kamath, Adv.)
3
AND
1. Kum. H. Punyashree,
D/o Dr. Hanumantharayappa,
Aged about 29 years,
Maruthi Nilaya,
1st Cross, K.R. Extension,
Tumakuru-572 101.
2. Dr. Smt. Jayamma,
W/o Shri. Hanumantharayappa,
Aged about 60 years,
Jayashree Nursing Home,
1st Cross, K.R. Extension,
Tumakuru-572101.
...Respondents
By Sri.M.R.Ravindra, Adv. for R1:
Sri. T.P.Rajendra Kumar Sungay, Adv. for R2.)
This MFA is filed under section 173(1) of MV Act
against the judgment and award dated:22.09.2016
passed in MVC No.42/2008 on the file of the II
Additional Senior Civil Judge and MACT at Tumakuru,
awarding compensation of Rs.37,58,780/- from the
2nd respondent together with interest at 6% p.a. from
the date of petition till the date of realization.
These MFAs coming on for admission, this day,
H.T. Narendra Prasad J., delivered the following:
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JUDGMENT
MFA 2042/2017 has been filed by the claimant whereas MFA 3380/2017 has been filed by the Insurance Company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) being aggrieved by the judgment dated 22.9.2016 passed by the Motor Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeals briefly stated are that on 1.6.2007 at about 10.30 p.m. when the claimant along with her family members were traveling in Car bearing Registration No.KA-06-N-9198 from Tumkur-Bangalore NH4 road, near Budihalli Gate, at that time, the driver of the said car drove the same at a high speed and in a rash and negligent manner and caused accident. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized. 5
3. The claimant filed a petition under Section 166 of the Act on the ground that she had completed SSLC in Distinction and joined MES College Bangalore. It was pleaded that she also spent huge amount towards medical expenses, conveyance, etc. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the car by its driver. On service of notice, the respondent No.2 filed written statement in which the averments made in the petition were denied. It was pleaded that the petition itself is false and frivolous in the eye of law. It was further pleaded that the accident was due to the rash and negligent driving of the car by its driver. The driver of the car had no valid and effective driving licence. It was further pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition. The 6 respondent No.1 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.
4. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant in order to prove her case has examined her Special Power of Attorney holder Dr.Hanumantharayappa as PW-1 and Dr.Swarrop Gopal as PW-2 and Dr.Prathiba Sharan as PW-3 and one Muddarangamma as PW-4 and got exhibited documents namely Ex.P1 to Ex.P24 and Ex.C1 to C3. On behalf of the respondents, neither any witness was examined nor any document was produced. 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 7 Rs.37,58,780/- along with interest at the rate of 6% p.a. Being aggrieved, these appeals have been filed.
5. The learned counsel for the Insurance Company submits that the PW-2, Dr.Swaroop Gopal has stated that the claimant is suffering neurological disability at 15%, cognitive disability of 24%, neuro behavioral disability 26% and as per telescopic sum formula (DGHS) the combined permanent disability of 51%. PW-3, Dr.Prathiba has stated that the claimant has suffered combined neurobehavioral and cognitive disability of 43.06%. Inspite of the same, the Tribunal is not justified in taking the whole body disability at 100%. Secondly, the claimant was aged about 16 years and student at the time of the accident. The Tribunal without any basis has taken the monthly income of the claimant at Rs.5,000/- and awarding compensation of Rs.10,80,000/- under head of 'loss of future income' which is on the higher side. Further, 8 the compensation awarded by the Tribunal under other heads is also on the higher side. Hence, he prays for allowing the appeal filed by the Insurance Company and dismiss the appeal filed by the claimants.
6. On the other hand, the learned counsel for the claimant has contended that as per wound certificate, the claimant has sustained diffuse axonal injury and left thalamic haematoma. She was in ICU from 1.6.2007 to 8.6.2007 at Manipal Hospital and she was treated as inpatient for 42 days in the hospital. PW-2, the doctor has stated in his evidence that the claimant cannot continue her further studies and she cannot concentrate on household work and other regular work. Taking into consideration the deposition of the doctors and the injuries suffered by the claimant, the Tribunal has rightly taken whole body disability at 100%. Even though the Tribunal has 9 taken 100% functional disability, but it has failed to award compensation under future prospects. In support of his contention, he has relied upon the decisions of the Hon'ble Apex Court in the case of Erudhaya Priya -v- State Express Transport Corporation Ltd. reported in 2020 SCC Online SC 601 and in the case of Syed Sadiq -v- Divisional manager, United India Insurance Co. reported in AIR2014 SC 1052. Further, the compensation awarded by the Tribunal under different heads is on the lower side. Hence, he sought for allowing the appeal filed by the claimant and dismiss the appeal filed by the Insurance Company.
7. We have considered the submissions made by the learned counsel for the parties and have perused the records.
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8. It is not in dispute that the claimant has sustained injuries in the accident occurred on 1.6.2007 while she was traveling in the Car bearing No.KA-06-N-9198 due to rash and negligent driving of the said car by its driver.
As per wound certificate, the claimant has sustained diffuse axonal injury and left thalamic haematoma. She was in ICU from 1.6.2007 to 8.6.2007 at Manipal Hospital and she was treated as inpatient for 42 days in the hospital. PW-2, Dr.Swaroop Gopal has stated that the claimant is suffering neurological disability at 15%, cognitive disability of 24%, neuro behavioral disability 26% and as per telescopic sum formula (DGHS) the combined permanent disability of 51%. PW-3, Dr.Prathiba has stated that the claimant has suffered combined neurobehavioral and cognitive disability of 43.06%. Therefore, taking into consideration the evidence of 11 PWs-1, 2 and 3 and wound certificate at Ex.P-4 and considering the age of the claimant, the whole body disability is taken at 80%. The claimant is aged about 16 years at the time of the accident and she has completed SSLC. Due to the accident, she has sustained grievous injuries. PW-3, the doctor in her evidence has observed the problems with the petitioner in her day to day activities as follows:
1. The patient may find it difficult to continue any further studies if she wants to, which she had plans (doing medicine) before the RTA, because of the impaired focused attention and the other executive functions.
2. She would not be able to concentrate on the house hold work like cooking, cleaning etc., because of the impaired learning and memory both verbal and logical.
3. She could have problems in generating words because of the impairments in the verbal and category fluency.
4. She may continue to have the problems that are already present like, her decision making is very poor, e.g., she needs assistance 12 in crossing the road, in selecting the cloths, needs to be told how to behave with other people, inappropriate behavior to people. She as been having some hallucinations which keep happening on and off, which are very disturbing to her and her family members for which she is on medication. Which may or may not improve."
Considering all these aspects and in view of the law laid down by the Hon'ble Apex Court in the case of Erudhaya Priya (supra) and in the case of Syed Sadiq (supra), the claimant is entitled for future prospects.
The claimant has not produced any evidence with regard to her income. Taking into consideration the age of the claimant and that she has completed SSLC, the Tribunal has rightly assessed her monthly income at Rs.5,000/- per month. As per the law laid down by the Hon'ble Supreme Court in the case of NATIONAL INSURANCE CO. LTD. -V- PRANAY 13 SETHI AND OTHERS [AIR 2017 SC 5157], 40% of the income of the claimant has to be added towards 'future prospects'. Hence, the monthly income of the claimant comes to Rs.7,000/-. The claimant is aged about 16 years at the time of the accident and multiplier applicable to her age group is '18'. Thus, the claimant is entitled to Rs.12,09,600/- (Rs.7,000*12*18*80%) on account of 'loss of future income'.
On appreciation of the oral and documentary evidence available on record, the compensation awarded by the Tribunal under other heads is just and reasonable.
9. Thus, the claimant is entitled to a total compensation of Rs.38,88,380/- as against Rs.37,58,780/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation amount along with interest within a 14 period of four weeks from the date of receipt of copy of this judgment.
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.
The amount in deposit is ordered to be transferred to the Tribunal for disbursement.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeals are disposed of.
Sd/-
JUDGE Sd/-
JUDGE DM/-