Karnataka High Court
M/S Icici Lombard General Insurance vs Sri M N Raghavendra Rao on 3 July, 2019
Bench: B.V.Nagarathna, K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B. V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE K. NATARAJAN
Miscellaneous First Appeal No.4935 OF 2019 (MV-I)
BETWEEN :
M/S. ICICI LOMBARD GENERAL INSURANCE
COMPANY LTD, NO.89, 2ND FLOOR,
SVR COMPLEX, HOSUR MAIN ROAD,
MADIVALA, KORAMANGALA,
BANGALORE 560 068
NOW REPRESENTED BY ITS MANAGER
M/S. ICICI LOMBARD GENERAL INSURANCE
COMPANY LTD., NO.121, THE ESTATE,
9TH FLOOR, DICKENSON ROAD,
M.G. ROAD, BANGALORE 560 042.
... APPELLANT
(BY SRI H. N. KESHAVA PRASHANTH, ADVOCATE)
AND :
1. SRI M. N. RAGHAVENDRA RAO
S/O. LATE M.G. NARAYANA RAO,
NOW AGED ABOUT 63 YEARS
R/AT NO.302, ROSHAN PALACE
APARTMENT, BEHIND BIG BAZAAR,
1ST CROSS, KATHRIGUPPE MAIN ROAD,
BANGALORE 560085.
2. M/S. MEGHA TRAVELS
NO.56, RAMAKRISHNA REDDY LAYOUT,
G.S. PALYA, KONAPPAN AGRAHARA
2
ELECTRONIC CITY POST,
BANGALORE 560100
ALSO AT: NO.637, 14TH CROSS,
8TH MAIN, 3RD PHASE,
J.P. NAGAR, BENGALURU 78.
... RESPONDENTS
THIS M.F.A. IS FILED UNDER SECTION 173(1) OF M.V.
ACT AGAINST THE JUDGMENT AND AWARD DATED:18.02.2019
PASSED IN M.V.C. NO.1421/18 ON THE FILE OF THE XIX
ADDITIONAL SCJ & MACT, BENGALURU [SCCH-17], AWARDING
COMPENSATION OF RS.31,03,638/- WITH INTEREST @ 7.5%
P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS M.F.A. COMING ON FOR HEARING ON INTER-
LOCUTORY APPLICATION, THIS DAY, NAGARATHNA J.,
DELIVERED THE FOLLOWING:
JUDGMENT
There is a delay of three days in filing the appeal. Nevertheless, we have heard learned counsel for the appellant insurer on the merits of the matter.
2. This appeal is filed by the insurance company being aggrieved by the quantum of compensation awarded by the Motor Accident Claims Tribunal, Bengaluru (hereinafter referred to as 'Tribunal', for the sake of brevity) by judgment and award dated 18.02.2019 passed in M.V.C. No.1421 of 2018.
3
3. For the sake of convenience, the parties shall be referred to in terms of their status before the Tribunal.
4. The respondent - claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as 'Act', for the sake of brevity) seeking compensation of Rs.60,00,000/- for the injuries sustained by him in the road traffic accident. According to the claimant, on 24.10.2017 at about 7.05 a.m. in the morning he was standing near the centre median after crossing one side of Kathriguppe main road at Pai junction, Banashankari III stage, to cross to the other side of the road when at that time, a private bus bearing registration No.KA-51/C-2238 came from the side of Kathriguppe water tank junction, being driven in a high speed, rash and negligent manner and took a sudden right turn to proceed towards ring road. In that process, the driver lost control of the vehicle on account of the high speed and the bus went to the wrong side of the road at the road median and dashed against the claimant. Due to the impact, the 4 claimant fell down and sustained injuries. He was shifted to Sagar hospital, where he was an inpatient. Contending that he was hale and healthy earlier and earning Rs.4,50,000/- per annum by working as a Consultant Electrical Engineer at Indian Institute of Technology (IIT Bombay) and that due to the accidental injuries he had become disabled, he filed the claim petition seeking compensation on account of the serious injury sustained in the accident which had resulted in amputation of his right leg below the knee.
5. In response to the service of notice from the Tribunal, the first respondent owner of the vehicle did not appear and was placed ex parte, while the second respondent insurance company appeared and filed its written statement denying the petition averments in toto and contending that there was violation of the mandatory requirements contemplated under Section 134(c) and 158(6) of the Act. It was contended that the claimant tried to cross the road where there was no zebra crossing 5 and that there is no negligence on the part of the driver of the bus. That the compensation claimed was exorbitant and hence sought for dismissal of the claim petition.
6. On the basis of the aforesaid pleadings, the Tribunal raised the following issues for its consideration :
1. Whether petitioner proves that on 24.10.2017 at about 7.05 a.m. when he was going to a park for a morning walk near Pai Junction, on Kathriguppe main road, Banashankari 3rd stage, Bengaluru, met with an accident and sustained injuries due to actionable negligence on the part of driver of bus bearing No.KA-51/C-2238 as alleged?
2. Whether petitioner is entitled for compensation? If so, at what rate and from whom?
3. What order or award?
7. In support of his case, the claimant examined himself as P.W.1. Two other witnesses were examined as 6 P.Ws.2 and 3. Dr.S.A. Somashekara was examined as P.W.4. The claimant produced 28 documents which were marked as Exs.P-1 to P-28. On behalf of the respondents, R.W.1 was examined, but no document was produced on behalf of the respondents. On the basis of the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue No.2 partly in the affirmative and allowed the claim petition in part by awarding compensation of Rs.31,03,638/- with interest at the rate of 7.5% per annum except towards future medical expenses, from the date of the claim petition till realization. Being aggrieved by the exorbitant compensation awarded by the Tribunal, the insurance company has preferred this appeal.
8. We have heard learned counsel for the insurer and perused the material on record.
9. Learned counsel submitted that the Tribunal was not right in assessing the notional income of the injured claimant as Rs.30,000/- per month even in the absence of any document produced in that regard. He 7 contended that the claimant was a retired person; he was drawing pension and there was no document produced to show that he was earning an income even after retirement. Despite the said fact, the Tribunal has assessed the notional income of the claimant at Rs.30,000/- per month and on holding that there was 40% disability has awarded compensation of Rs.10,08,000/- on the head of loss of future earning capacity which is highly excessive. Further, the award of compensation on other heads is also excessive. He submitted that the award of compensation on other heads is also excessive, and therefore, this Court may issue notice to the respondents to condone the delay and hear the appeal on merits.
10. Having heard learned counsel for the insurance company and on perusal of the material on record, we note that there is no dispute with regard to the claimant sustaining grievous injuries in the road traffic accident that occurred on 24.10.2017. The Tribunal has awarded compensation of Rs.31,03,638/- in the following manner : 8
1. Towards pain and suffering Rs. 1,00,000/-
2. Towards attendant charges, Rs. 50,000/-
extra food and conveyance expenses
3. Towards medical expenses Rs. 17,45,638/-
4. Loss of income due to Rs. 10,08,000/-
permanent disability
5. Loss of future amenities and Rs. 1,00,000/-
happiness
6. Towards future medical Rs. 1,00,000/-
expenses
Total Rs. 31,03,638/-
11. The main contention of learned counsel for the appellant insurer is with regard to the award of compensation on the head of loss of future earning capacity. Although the claimant was about 63 years at the time of the accident and a retired person drawing pension of Rs.5,05,885/- per annum, nevertheless, he was working as a Manager (Telecommunication) in IIT, Bombay. In support of that plea, Ex.P-1 Income-Tax Returns for the assessment year 2017-18 was produced to show the gross total income of the claimant as Rs.9,33,450/- and after deduction of Income Tax, it was Rs.8,43,440/-; that 9 pension amount was Rs.5,05,885/- and the gross salary was Rs.4,11,200/-. In fact, the Income Tax Returns for the assessment year 2018-19 shows gross income of Rs.7,67,907/- and the claimant suffered serious injuries in the accident on 24.10.2017. Ex.P-14 is the office order of pension produced by the claimant, but the fact that he was earning income over and above the pension amount of Rs.5,05,885/- has been established by Ex.P-15. However, the Tribunal has assessed notional income at Rs.30,000/- per month only and the annual income being Rs.3,60,000/- which is without assigning any reason.
12. Further, the claimant had suffered crush injury on the right leg with segment fracture of both bones of right leg with heel pad avulsion and left calcaneum fracture. The crush injury had resulted in amputation of the right lower limb below the knee which was done on 20.11.2017. P.W.4, the Doctor had stated that on account of the amputation of the right leg below the knee, the claimant had become disabled to perform his daily routine 10 activities or to enjoy life; that he needed crutches to walk and he suffered trauma on account of not being able to do his normal work. Even then the Tribunal has assessed the whole body disability at 45%, but reckoned it at 40%. No reason is assigned as to why the whole body disability was assessed at only 40%, despite there being amputation of the right lower limb. The claimant had undergone six surgeries for the right leg. However, the right leg had to be amputated. In the case of amputation, the Hon'ble Supreme Court has assessed the percentage of disability at 90% and in some cases, it could be even 100%. This Court has also assessed the functional disability to be atleast 90%, if not 100%, having regard to the nature of avocation of the claimant. But we do not find any reason as to why the Tribunal has assessed the functional disability at 45% and calculated only at 40% while awarding compensation on the head of loss of future earning capacity.
11
13. As we have already stated, the Tribunal has also assessed the notional income at only Rs.30,000/- per month without assigning any reason, although the income as per Ex.P-15 was Rs.4,11,200/- which is over and above what has been drawn by the claimant towards pension, which was Rs.5,05,885/-. In the circumstances, the award of compensation on the head of loss of future income on account of permanent disability at Rs.10,08,000/- is not on the higher side. This is because both on the assessment of notional monthly income of the claimant as well as on percentage of whole body disability, it is on the lower side. The claimant may continue to receive pension despite the accidental injuries suffered by him but there is loss of income from his consultation work at IIT Mumbai as an Engineer on account of the amputation of his lower limb due to the accident. Further, we find that the award of compensation on the other heads cannot be held to be exorbitant or excessive.
12
14. In the circumstances, we do not find any merit in the appeal. The appeal is hence dismissed.
15. The amount in deposit to be transmitted to the Tribunal.
16. In view of the dismissal of the appeal, I.A. Nos.1 of 2019 and 2 of 2019 also stand dismissed.
Sd/-
JUDGE Sd/-
JUDGE hnm