Karnataka High Court
Sunil B.G vs M/S. Icici Lombard General Insurance Co ... on 24 February, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
MFA No. 3825 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 3825 OF 2015 (MV-I)
BETWEEN:
SUNIL B.G
S/O GURUMURTHY B K
AGED 26 YERS,
R/A NO.915, I FLOOR, 24TH CROSS,
KUMARASWAMY LAYOUT, BENGALURU-560 078.
...APPELLANT
(BY SRI. SRIDHAR D S., ADVOCATE)
AND:
Digitally signed
1. M/S. ICICI LOMBARD GEN.
by PAVITHRA INSURANCE CO. LTD.
B NO.89, II FLOOR, SV R COMPLEX,
Location: HIGH
COURT OF HOSUR MAIN ROAD,
KARNATAKA MADIVALA, BANGALORE-560 068,
REPRESENTED BY ITS MANAGER.
2. BYRESHA N
S/O MR. NAGARAJ L., MAJOR,
R/AT NO.4, B W S S B QUARTERS,
WATER TANK ROAD,
KUMARASWAMY LAYOUT,
BENGLAURU-560 078.
...RESPONDENTS
(BY SRI. A N KRISHNA SWAMY, ADVOCATE FOR R1; R2-
NOTICE DISPENSED WITH V/O DATED:28-7-2015)
-2-
MFA No. 3825 of 2015
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:25.03.2015 PASSED IN MVC
NO.964/2014 ON THE FILE OF THE COURT OF SMALL CAUSES,
XVI ADDITIONAL JUDGE, MEMBER, MACT, BANGALORE,
PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR BEFORE HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellant-claimant, calling in question the judgment and award dated 25.03.2015, passed in M.V.C.No.964/2014, on the file of the Motor Accident Claims Tribunal, Bengaluru, (hereinafter referred to as 'the Tribunal' for brevity) for seeking enhancement of the compensation.
Brief facts:
2. On 05.01.2014, at about 9.30 a.m., the claimant was proceeding on Motor Bike bearing No.KA-05-
HX-5169 as a pillion rider. The said motorcycle was ridden -3- MFA No. 3825 of 2015 by his friend Byresh who was riding the motorcycle in a very high speed, in a rash and negligent manner. When they reached in front of Cosmopolitan club, near swimming pool, Jayanagar, 3rd Block, Bengaluru, due to over speed, the rider of the motor bike lost control over the bike and applied sudden brake without seeking the road hump and skidded. As a result, both the claimant and the rider fell down and the claimant sustained grievous injuries all over the body.
3. Hence, a claim petition was filed by the appellant- claimant under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the accident. The Tribunal on appreciating the materials on record, allowed the claim petition in part, and awarded a compensation of Rs.16,44,000/-, along with interest at 9% per annum from the date of petition till the date of realisation. The Tribunal held respondents therein, jointly and severally liable to pay the compensation.
-4-MFA No. 3825 of 2015
4. Heard arguments of the learned counsel for the appellant-claimant and the learned counsel for respondent No.1 - insurance company and perused the materials on record.
5. The compensation awarded by the Tribunal is as follows:
1. Injury, Pain And Suffering : Rs. 50,000/-
2. Medical Expenses : Rs. 1,76,000/-
3. Conveyance & Attendant : Rs. 10,000/-
Charges
4. Nourishing Food : Rs. 10,000/-
5. Loss of Income during the : Rs. 12,000/-
period of treatment
6. Loss of Future earning : Rs. 12,96,000/-
Capacity
7. Loss of Amenities : Rs. 50,000/-
8. Towards Future Medical : Rs. 40,000/-
Expenses
TOTAL : Rs. 16,44,000/-
6. It is seen from the medical evidence on record, viz., Exhibit-P6 which is Wound Certificate and Exhibit-P8 -5- MFA No. 3825 of 2015 which is discharge report, that the claimant has suffered the following injuries:
"i. Jefferson Fracture with C1-C2 subluxation with C6-D2 contusion complete spinal injury with quardriperis and paraplegia, ii. Abrasion injuries over right shoulder, iii. Abrasion injuries over forehead"
7. The aforesaid injuries are grievous in nature. PW-2 Doctor has issued Disability Certificate as per Exhibit-P9 by giving opinion that the physical as well as functional disability suffered by the claimant is 100%. It is useful to refer what are the disabilities occurred to the claimants, which is extracted as follows:
"Now the patient complaints of pain in the back and deformity. He complaints inability to sit, stand or to bear weight or walk, he cannot move on his own. He has total loss of power in both limbs. He has difficulty in passing urine, stool and uncontrolled complains of sexual importance.
(a) Weakness in both upper limbs -6- MFA No. 3825 of 2015 (b) Grade 'O' muscle power in both the lower limbs. (c) Sensation over both the lower limbs lost. (d) Perianal lower limb reflexes completely lost. (e) Movements of the spins not possible. (f) Reflexes of the lower limbs absent. (g) Urinary catheter is on-he is unable to do his regular day to day work.
After considering the above finds, I am of the opinion that he is having percentage of the permanent disability of this person for the whole body is 90%. He can't do his routine activities has no bladder and bowel functions and can't have martial life and do any occupation that involves standing, sitting and weight bearing independently. No family life".
8. The Tribunal in detail discussed regarding what is 'paraplegia' by referring Wikipedia and has also referred to 'Reed Group Disability Guidelines' and relied upon judgments of this Court and also judgment of Delhi High Court. Therefore, held that it is a case of paraplegia is permanent physical disability and also functional disability -7- MFA No. 3825 of 2015 at 100%. Hence, the physical disability held by the Tribunal at 100% is appropriate and hence kept intact.
9. Therefore, considering the injury and disability by the claimant, the quantum of compensation awarded by the Tribunal under the head 'Pain and Sufferings, at Rs.50,000/-, is on lower side and hence a sum of Rs.1,00,000/- is awarded.
10. The compensation amount awarded by the Tribunal under the 'Medical Expenses' at Rs.1,76,000/- is as per actual bills and receipts and the same is kept in tact.
11. The Tribunal has awarded compensation towards 'Loss Of Amenities' at Rs.50,000/-, which is on lesser side and hence a sum of Rs.1,00,000/- is awarded under the said head.
12. The Tribunal has awarded compensation towards 'Future Medical Expenses' at Rs.40,000/-, -8- MFA No. 3825 of 2015 which is on lesser side and hence a sum of Rs.75,000/- is awarded under the said head.
13. The Tribunal has awarded compensation towards 'Food, Nourishment, Conveyance and Attendant Charges' at Rs.10,000/-, which is on lesser side and hence a sum of Rs.50,000/- is awarded under the said head.
14. The claimant was aged 25 years and the accident has occurred during the year 2014. The Tribunal has held the income of the claimant at Rs.6,000/- per month, which is on lesser side. Therefore, as per Chart of notional income recognized by the Karnataka State Legal Services Authority, a sum of Rs.8,500/- is to be taken as notional monthly income of the claimant. The Tribunal had taken 100% disability to the whole-body. The criteria for calculating functional disability is elaborately discussed by the Hon'ble Supreme Court in the case of Raj Kumar Vs. -9- MFA No. 3825 of 2015 Ajay Kumar and Another1 Therefore, considering the principles of law laid down by the Hon'ble Supreme Court stated supra, and the injuries suffered by the appellant, certainly the disability will affect his earning capacity. Accordingly, 100% functional disability to the whole-body as assessed by the Doctor is taken.
15. Due to such functional disability, the claimant will not be in a position to do the work as he was doing before the accident and this would be the loss of future earning capacity and thus as per the principles of law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi2 along with the decision of this Court in the case of New India Assurance Company Vs. Abdul S/o Mehaboob Tahasildar3 compensation towards 'loss of future prospects in life' as permissible in the case of injuries 1 (2011) 1 SCC 343 2 (2017) 16 SCC 680 3 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018 DD.27.05.2022
- 10 -
MFA No. 3825 of 2015where disability occurred affecting the earning capacity. The Division Bench in the above case was pleased to grant compensation by adding income towards 'loss of future prospects in life'. Therefore, 40% of the notional monthly income is to be added towards 'loss of future prospects in life'.
16. The appropriate multiplier applicable as per the judgment of the Hon'ble Supreme Court, in the case of Smt.Sarla Verma & Others. Vs. Delhi Transport Corpn And Another4 is '18'. Therefore, the compensation under the head 'Loss of Earning Capacity Due to Disability' is recalculated and quantified as follows:
Rs.8,500/- + 3,400 (40% of 8,500) x 18 x 12 = Rs.25,70,400/-
17. In view of the accidental injuries, the claimant would have taken rest for atleast for a period of One Year. Therefore, by taking income at Rs.8,500/- per month and 4 AIR 2009 SC 3104
- 11 -
MFA No. 3825 of 2015calculating the laid up period for One Year, the claimant is entitled for a sum of Rs.1,02,000/- (Rs.8,500 x 12 months), under the head 'Loss Of Earning During Laid Up Period'.
18. Therefore, in modification of the award of the Tribunal, the appellant-claimant is entitled to the following compensation:
1. Injury, Pain And Suffering : Rs. 1,00,000/-
2. Medical Expenses : Rs. 1,76,000/-
3. Nourishing Food Conveyance & : Rs. 50,000/-
Attendant Charges
4. Loss of Future earning : Rs. 25,70,400/-
Capacity (8,500/- + 3,400 (40% of 8,500) x 18 x 12)
5. Loss of Income during the : Rs. 1,02,000/-
period of treatment (Rs.8,500 x 12 months)
6. Loss of Amenities : Rs. 1,00,000/-
7. Towards Future Medical : Rs. 75,000/-
Expenses
TOTAL : Rs. 31,73,400/-
- 12 -
MFA No. 3825 of 2015
14. Therefore, the appellant-claimant is entitled for compensation of Rs.31,73,400/- as against Rs.16,44,000/-. The appellant - claimant is entitled for an additional compensation of Rs.15,29,400/- (Rs.31,73,400 - Rs.16,44,000) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Insurance Company is directed to deposit the amount of total compensation within Eight Weeks from the date of receipt of the certified copy of this judgment.
15. Accordingly, I pass the following:
ORDER i. The appeal is allowed in part.
ii. The impugned judgment and award dated 25.03.2015, passed in M.V.C.No.964/2014, on the file of the Motor Accident Claims Tribunal, Bengaluru, is modified to the aforesaid extent.
- 13 -
MFA No. 3825 of 2015iii. The appellant - claimant is entitled for an additional compensation of Rs.15,29,400/- (Rs.31,73,400 - Rs.16,44,000) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. iv. The remaining observations and findings made by the Tribunal in the aforesaid impugned judgment and award are kept in tact.
v. Respondent No.1 - insurance company shall
pay the compensation to the
appellant/claimant.
vi. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
- 14 -
MFA No. 3825 of 2015vii. Draw award accordingly.
viii. No order as to costs.
Sd/-
JUDGE JJ List No.: 2 Sl No.: 12