Karnataka High Court
Sri. Boyineni Narasimhulu vs Sri. P. Sidda S/O. Sri Hanumanthappa on 20 June, 2019
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE HIGH COURT OF KARNATAKA AT
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2019
PRESENT
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
M.F.A. No.102680/2018(MV)
C/W
M.F.A. No.102093/2018(MV)
IN M.F.A. No.102680/2018:
BETWEEN:
SRI. BOYINENI NARASIMHULU @
NARASIMHULU @ VENKATA
NARASIMHULU @ BOYANANI
KAMMA NARASIMHULU
S/O SRI. BOYNENI NAIDU @ NAIDU
AGED ABOUT 43 YEARS
LAND-LORD CUM BUSINESSMAN
R/O GOPULAPLURAM VILLAGE
KANEKAL, MANDAL, RAYADURGA TALUK
ANANTHAPUR DISTRICT - 420 001.
...APPELLANT
(BY SRI. MANJUNATHA G PATIL, ADVOCATE)
AND:
1. SRI. P. SIDDA
S/O SRI. HANUMANTHAPPA
AGED ABOUT 38 YEARS
DRIVER OF THE DIWAKAR
BUS BEARING REG.NO.AP-02/X-5769
R/O NEAR ANDRAL, JUMMA MASZID
BALLARI - 583 101.
2. SRI. ASHMITH REDDY J.C
@ ASHMIT REDDY JUTURU CHINNA
2
S/O J.C. PRABHAKAR REDDY
AGED ABOUT 36 YEARS
OWNER OF THE DIWAKAR
BUS BEARING REG.NO.AP-02/X-5769
R/O NO.15/311, SAJEEVA NAGAR
TADIPATHRI, ANANTHAPUR - DISTRICT
A.P. - 420 001.
3. M/S RELIANCE GENERAL
INSURANCE COMPANY LIMITTED
BY ITS MANAGER
MAIN ROAD, PARVATHI NAGAR
BALLARI - 583 101.
...RESPONDENTS
(BY SRI. N.C. KOLLOORI, ADVOCATE FOR R-3)
THIS MFA IS FILLED U/S 173(1) OF MOTOR
VEHICLES ACT 1988, AGAINST THE JUDGMENT AND
AWARD DATED:28.02.2018 PASSED IN MVC NO.508/2015
ON THE FILE OF THE MEMBER, III-MOTOR ACCIDENT
CLAIMS TRIBUNAL, BALLARI, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN M.F.A. No.102093/2018:
BETWEEN:
M/S RELIANCE GENERAL
INSURANCE COM LTD.,
BY ITS MANAGER
MAIN ROAD, PARVATHI NAGAR
BALLARI
REPRESENTED BY ITS
AUTHORISED SIGNATORY.
...APPELLANT
(BY SRI. NAGARAJ C KOLLORI, ADVOCATE)
AND:
1. BOYINENI NARASIMHULU @
NARASIMHULU @ VENKATA
NARASIMHULU @ BOYINENI KAMMA
3
NARASIMHULU
S/O BOYINENI NAIDU
@ NAIDU, AGE: 43 YEARS
OCC: LAND LORD CUM BUSINESSMAN
R/O GOPULAPLURAM VILLAGE
KANEKAL MANDAL, RAYADURGA TALUK
ANATHAPUR DISTRICT.
PINCODE: 515 865.
2. P. SIDDA
S/O P. HANUMANTHAPPA
AGE: 38 YEARS
OCC: DRIVER
R/O NEAR ANDRAL, JUMMA MASZID
BALLARI, PINCODE: 583 101.
3. ASHMITH REDDY J.C. @
ASHMIT REDDY JUTURU CHINNA
S/O J.C. PRABHAKAR REDDY
AGE: 36 YEARS
OCC:OWNER
R/O NO.15/311, SAJEEVA NAGAR
TADIPATHRI, ANANTHAPUR DISTRICT
PINCODE: 515 411.
...RESPONDENTS
(BY SRI. MANJUNATH G PATIL, ADVOCATE FOR R-1;
NOTICE TO R-2 & R-3 ARE DISPENSED WITH)
THIS M.F.A. IS FILED U/S 173(1) OF MOTOR
VEHICLES ACT AGAISNT THE JUDGMENT AND AWARD
DATED:28.02.2018 PASSED IN MVC NO.508/2015 OF THE
FILE OF THE MEMBER, MOTOR ACCIDENT CALIMS
TRIBUNAL-III, BALLARI, AWARDING COMPENSATION OF
RS.23,98,000/- WITH INTEREST AT 9% P.A. FROM THE
DATED OF PETITION TILL ITS REALISATION.
THESE APPEALS COMING ON FOR ORDERS THIS
DAY, ARAVIND KUMAR J., DELIVERED THE FOLLOWING:
4
JUDGMENT
These two appeals have been filed questioning the judgment and award passed by III MACT, Ballary in MVC No.508/2015 dated 28.02.2018 whereunder, tribunal has allowed the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short Act'') in part and has awarded a total compensation of `23,98,000/-.
BRIEF BACKGROUND:
2. A claim petition under Section 166 of the MV Act came to be filed by the claimant seeking compensation contending interalia that while he was proceeding on his Bajaj Kawasaki motorcycle on 19.12.2014 at 6.00 p.m. on Kanekal cross road in Gopalpuram village, Ananthpur District, the driver of the offending bus came from Kalyanadurga side in a high speed by driving said vehicle in a rash and negligent manner and dashed against the motorcycle due to which claimant fell down and sustained severe 5 bodily injuries, as a result, had sustained permanent disability.
3. On service of notice, insurer appeared and filed its statement of objections denying the averments made in the petition and also contending that it was a head on collision as a result of which, there has been contributory negligence on the part of claimant himself and as such, sought for dismissal of the claim petition.
Tribunal after recording evidence of claimant and his witnesses, marking the documents and on evaluating the same by judgment and award in question, has allowed the claim petition in part by awarding a total compensation of `23,98,000/- under the following heads:
1 Pain and suffering Rs.60,000/- 2 Loss of Income during laid up period Rs.80,000/- 3 Attendant Charges, conveyance and other incidental expenditure Rs.80,000/- 4 Medical Expenditure Rs.14,80,000/- 5 Loss of Future Earning (20,000 x 12 x 15/100x13) Rs.4,68,000/-6
4. Claimant not being satisfied with the quantum of compensation has filed MFA 102680/2018.
Whereas, insurer has preferred MFA No.102093/2018 challenging the liability, quantum and contending that there is equal contribution of negligence by the drivers of both vehicles and as such, there being negligence on the part of the injured claimant himself, the award if any is to be restricted on the insurer for being indemnified to an extent of 50% only.
5. We have heard the arguments of Sri.Nagaraj C Kolloori, learned Advocate appearing for insurer and Sri. Manjunath G Patil, learned Advocate appearing for claimant. Learned Advocates appearing for parties have reiterated the grounds urged in their appeal memorandum.
6. It is the contention of Mr. Nagaraj C. Kolloori, learned counsel appearing for appellant- insurer that tribunal committed an error in construing the income of injured at `20,000/- per month and 7 assessing the disability at 15%. He would also submit that accident in question occurred due to involvement of two vehicles and there was equal contribution of negligence on the part of claimant and as such tribunal ought to have saddled the liability on the claimant also. He would contend that compensation awarded by the tribunal under all heads is excessive and be reduced.
7. Per contra, Sri. Manjunath G. Patil, learned counsel appearing for claimant would submit that tribunal erred in considering the disability of claimant at 15% and it ought to have considered the permanent disability to an extent of 100%. He would submit that claimant was earning `10 Lakhs per annum from the agricultural activities in his 55 acres of land owned by him as per Ex.P-15 and accordingly, compensation towards 'loss of future income' ought to have been computed. He would also submit that tribunal has not awarded any compensation towards attendant charges, nourishment and same deserves to be awarded. Hence, he seeks for enhancement of compensation. He would 8 submit that tribunal has rightly fastened the liability on insurer of the offending vehicle and there is no error committed by the tribunal in this regard. Hence, he prays for dismissal of the appeal filed by insurer and seeks for allowing the appeal filed by claimant.
8. Having heard the learned Advocates appearing for parties and on perusal of certified copies of pleadings, deposition, exhibits as marked before the tribunal which were made available by Sri. Nagaraj C Kolloori during the course of arguments, we are of the view that following points would arise for our consideration:
(i) Whether tribunal was justified in fastening the entire liability on the insurer?
(ii) Whether claimant had contributed his negligence to the accident in question?
(iii) Whether compensation awarded by the tribunal is just and reasonable? If not, to what compensation claimant would be entitled to?9
RE: POINT Nos.(i) & (ii):
9. As could be seen from the records of tribunal, accident in question occurred on 19.12.2014 at 6.00 p.m. on Kalyanadurga - Ballary road, near KEB office, Kanekal cross. It is not in dispute that injured claimant was proceeding on his Bajaj Kawasaki motorcycle and in order to establish the manner in which accident in question occurred, claimant has entered the witness box and filed his affidavit in lieu of Examination-in-Chief. He has specifically contended that he was on the left side of road and bus in question had rammed into his motorcycle from hind side. Suggestion made to the said witness that he was proceeding in the middle of road, has been denied.
10. The insurer having raised a plea that there was no absolute negligence on the part of driver of offending vehicle, the least that was expected of the insurer was to examine the driver of the offending vehicle. However, it did not undertake said exercise for reasons best known. Rough sketch of the accident spot 10 drawn by the police has been marked as Ex.P-3 which depicts the place of accident and it would clearly indicate that claimant was on the extreme left side of Kalyanadurga - Ballary BT road. In fact, charge sheet for the offence punishable under Section 338 IPC has been filed against the driver of the offending vehicle. It is specifically alleged by the prosecution in the charge sheet - Ex.P-4 that driver of the bus drove the said vehicle in a rash and negligent manner and dashed against the motor cycle from behind. In the light of said material available on record and insurer having failed to establish or prove that cause for the accident in question is also attributable to claimant, the irresistible conclusion which requires to be drawn is that tribunal was correct in arriving at a conclusion that there was no negligence whatsoever on the part of claimant. In fact, insurer has not challenged before any forum the contents of FIR, complaint and charge sheet. Hence, we answer Point Nos.(i) and (ii) formulated herein above against the insurer and in favour of the claimant. 11 RE: POINT NO.(iii):
11. In the instant case, claim petition came to be filed seeking compensation contending interalia that in the accident in question that occurred on 19.12.2014 claimant had sustained bodily injuries and as a result, there is permanent physical disability due to which he is not able to do any work. In other words, claimant has pleaded 100% disability. It was also contended by the claimant that he is an agriculturist and he was earning `10 Lakhs per annum and as such tribunal ought to have considered said income for awarding future loss of income.
12. Insofar as, avocation of claimant is concerned, patta pass books of lands owned by the claimant came to be produced and it came to be collectively marked as Ex.P-15. Tribunal after having noticed the same, has arrived at a conclusion that claimant owns 18.67 acres of land spread over in Sy.Nos.547/A, 547/B, 443/A, 240 and 242. In fact, 12 this aspect is not in serious dispute. In other words, avocation of claimant is not in serious dispute.
13. Medical records would disclose that claimant was treated at RDT Hospital, VIMS Hospital- Ballary, Fortis Hospital-Bangalore, apart from being treated by several doctors. In order to prove the hospitalisation, treatment obtained at Fortis Hospital Limited, Bengaluru, Senior Consultant Neurosurgeon - Dr.Sathish.S has been examined as P.W.2. He has stated that claimant was admitted in the said hospital and treated from 20.12.2014 to 31.01.2015. He has further stated that claimant had sustained severe head injury and was also on follow-up treatment. In his examination-in-chief he has stated to the following effect:
"The petitioner in the above case Mr. Narasimhulu.B. male, aged about 46 years [UHID: 523161 - IP No.135107] was admitted under my care in the Fortis Hospitals Limited and I was treated him from 20.12.2014 to 31.01.2015.
The patient was diagnosed to have severe head injury with diffuse Axonal injury and Bilateral Multiple Rib fracture and Hemopneumo Thorax.13
The patient was followed up with me in OPD on regular basis and last follow up was on 08.03.2016. Presently he has left upper limb and left lower limb herm paresis, with severe spasticity, the said disablement is permanent.
The said assessment is as per the Manual for doctors to evaluate permanent physical impairment based on GDHS-WHO- AIIMS, New Delhi 1981."
14. Wound certificate - Ex.P-5 would disclose that claimant had sustained following injuries:
(i) Head injury with Diffuse Axonal Injury;
(ii) Displaced fracture of right transverse process of G Vertebra;
(iii) Bilateral multiple ribs fracture with hempneumo thorax.
All the above injuries have been certified by the doctor as grievous injuries. Discharge summary, which came to be produced at Ex.P-16, would disclose during hospitalisation claimant underwent tracheostomy under general anaesthesia on 24.12.2014 and was kept under prolonged ventilation. The condition of claimant at the time of discharge as per Ex.P-6 - discharge summary was as follows:
14
(1) Conscious, alert, oriented; (2) Ambulant on wheel chair, on silicon catheter (Day 10 on 31/01/2015);
(3) On peg feeds and oral soft and semi solid diet; (4) Left upper limb grade 0/5;
(5) Left lower limb grade 3/5.
15. Doctor-PW2, who treated the claimant, has issued disability certificate whereunder he has clearly stated that claimant has left upper limb and left lower limb hemi paresis. He has also stated that said disability is permanent. In order to prove the contents of Ex.P-7, Author - PW2 has entered the witness box and he has reiterated the contents of Ex.P-7. Said doctor is a Neurosurgeon. It has been elicited in the cross-examination dated 30.08.2016 to the following effect:
"It is true to suggest that the Injury No.1 mentioned in P.D. causes permanent Damage to the brain resulting in permanent paralysis of the left side of his body (inability to move the left side of the body)."
To the suggestion that claimant had recovered and he is not having any disability, has been denied. 15 PW4 - the orthopaedic surgeon, who gave follow-up treatment to the claimant, has deposed to the following effect:
"2) I have treated and examined Mr. Narasimhulu B son of B. Naidu, aged about 41 years, working as Ex-
Agriculturist, has sustain RTA on 19- 12-2014 was ill treated at Fortis Hospital, Bengaluru as diagnosed on
1) Diffuse Axonal injury with bilateral multiple rib fracture with hemopneumo thorax.
3) He was treated in Fortis Hospital, from 20-12-2014 to 31-01-2015 he had regularly follow up there, now he has turned to me for the assessment of disability only.
4) On examination the patient suffering pain in left shoulder joint restriction movement at left shoulder and elbow and wrist joint with weaking and with restriction movement of left side, difficulty in breathing with ronchi and crepetus present at both lungs difficulty in restriction movement of left wrist joint, difficulty in holding object left hand, tingling and numbers of left hand.
X-Ray No.1580 and 1547 dated 07-04-2016 - Malunion fracture ribs both right and left side with Osteophorosis of left shoulder joint.
16. In the background of above medical evidence on record, it would clearly reveal that 16 claimant, who is an agriculturist by avocation, is unable to perform his duties as an agriculturist and necessarily he has to take the assistance of his Supervisor to supervise the agricultural operations in the land belonging to him, which is spread over 19 acres. That apart, other bodily injuries sustained by the claimant would disclose that claimant is completely disabled and is not even in a position to attend to his day-to-day activities. In fact, tribunal has rightly recorded that injuries sustained by the claimant has resulted in permanent disablement and fractures are malunited.
17. Insofar as, assessment of 'loss of future income' is concerned, tribunal has construed the disability at 15% and income at `20,000/- per month, adopted the multiplier of 13 and awarded a sum of `4,68,000/- towards 'loss of future earning', which is without any discussion and reasoning. Hence, we do not accept the said award and propose to redo the same.
17
18. It is the specific case of the claimant that he is an agriculturist by profession and was earning ` 10 lakhs per annum from out of agricultural activities carried out by him. In fact, tribunal has accepted the profession or avocation of the claimant. WE are also inclined to reiterate the same. Further, it cannot be gainsaid by the claimant that he would not be able to carry on agricultural operations without the help and assistance of a supervisor. In fact, he has not stated that he was personally cultivating the land. Even if it were to be so, it cannot be accepted that entire 19 acres was being cultivated by him personally. What would be lost on account of permanent physical disability suffered by the claimant would be the supervision charges, the claimant will have to expend for carrying out agricultural operations through supervision, by appointing a supervisor. As already noticed hereinabove, patta pass books of lands owned by the claimant came to be produced and collectively marked as Ex.P-15 (3 books). Total land owned by the claimant 18 is around 19 acres. Even by modest estimate if the supervision charges is considered at `3,000/- per acre, for 19 acres claimant would have to spend `57,000/- per month towards supervision charges. On account of paralysis suffered by the claimant as a result of accidental injuries, he would not be in a position to move around, supervise, check, give instructions to workers or in other words, ensure there is proper execution of agricultural operations in his land. As such he has to necessarily depend upon a supervisor to act on his behalf, for which minimum amount which will have to be spent by the claimant would be around `3,000/- per month per acre. Thus, for 19 acres of land, the supervision charges which the claimant will have to expend would be not less than `57,000/- per month to which claimant will be entitled to seek for being awarded. Tribunal has adopted the multiplier of
13. Entire medical records would disclose that age of claimant was 45 years. Hence, for the age group of 41 to 45 as per the dicta of the SARLA VERMA & OTHERS vs DELHI TRANSPORT CORPORATION & ANOTHER 19 reported in (2009)6 SCC 121 appropriate multiplier would be '14'. Hence, we propose to adopt the multiplier of '14' by considering the age of claimant as 45 years. Thus, claimant would be entitled to compensation towards 'loss of future income' in a sum of `95,76,000/- (`3,000/- per acre being the supervision charges for 19 acres it would be `57,000/- per month X 12 months X 14 being multiplier).
19. The compensation of `14,80,000/- awarded by the tribunal towards medical expenditure is just and reasonable and based on documentary evidence produced by the claimant as per Exs.P-8, P-9, P-10, P- 11, P-17 and P-20 and as such, we are not inclined to disturb the compensation so awarded by the tribunal.
20. Insofar as compensation awarded towards 'pain and suffering' which is marginally on the lower side requires to be enhanced. Taking into consideration that claimant was hospitalised for 108 days and later on has been in continuous follow-up treatment, we are 20 of the considered view that additional sum of `40,000/- deserves to be awarded and accordingly, it is awarded.
21. Tribunal has awarded a compensation of `80,000/- towards loss of income during laid up period by construing the income at `20,000/- per month and for 4 months same has been awarded. Since, medical records disclose that claimant was completely immobile for a period of about 3 months, we propose to award a sum of `1,71,000/- @ `57,000/- per month under this head.
22. Tribunal has awarded a sum of `80,000/- towards attendant charges, conveyance and incidental expenditure, which is marginally on the lower side and by considering the entire evidence on record, we hereby award additional compensation of `20,000/-.
23. 'Loss of amenities' has been compensated by awarding a sum of `80,000/-, which is on the lower side and considering the nature of injuries and medical evidence suggesting that fractures are malunited and 21 thereby certain comforts in life is totally lost, we award additional compensation of `70,000/-.
24. Since tribunal has awarded compensation of `1,50,000/- towards permanent physical impairment, which it could not have, since compensation has been determined and ordered to be paid towards 'loss of future income', we are of the opinion that claimant would be entitled compensation towards "future medical expenses". In fact, doctors-P.W.3 and P.W.4 have also opined claimant would be required to spend money towards future medical expenses. On account of there being no proper quantification made, we hereby award a sum of `1,00,000/- towards the same in lieu of compensation of `1,50,000/- awarded towards permanent physical impairment.
25. Thus, in all claimant would be entitled to a total compensation of `1,16,77,000/- under the following heads, which would be in substitution to the compensation awarded by the tribunal: 22
Sl. PARTICULARS AMOUNT
No.
1 Loss of future income
(19 acres X `3,000/- per acre)
(`57,000/- X 12 X 14) 95,76,600/-
2 Pain and suffering 1,00,000/-
3 Loss of income during laid up 1,71,000/-
period
4 Food, nourishment, conveyance 1,00,000/-
and attendant charges
5 Medical expenses 14,80,000/-
6 Loss of comforts and amenities 1,50,000/-
7 Future medical expenses 1,00,000/-
TOTAL 1,16,77,000/-
Hence, we proceed to pass the following:
JUDGMENT
(i) MFA No.102680/2018 is allowed in part.
(ii) MFA No.102093/2018 is dismissed.
(iii) Judgment and award passed in MVC No.508/2015 by Member, MACT-III, Ballary, is hereby modified and claimant is awarded a total compensation of `1,16,77,000/-, which shall carry interest @ 8% p.a. from date of petition till date of payment or deposit. However, it is 23 made clear that no interest is payable on the compensation awarded towards future medical expenses.
(iv) Amount in deposit in MFA
No.102093/2018 with accrued
interest if any, is ordered to be
transmitted to the jurisdictional
tribunal forthwith by the Registry of this Court.
[Sd/-] JUDGE [Sd/-] JUDGE *sp/DR