Karnataka High Court
Chandrashekara Rao vs Sbi General Insurance Company Ltd on 23 February, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2024:KHC:7726
MFA No. 1440 of 2017
C/W MFA No. 1439 of 2017
MFA.CROB No. 165 of 2017
MFA.CROB No. 166 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.1440 OF 2017 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.1439 OF 2017 (MV-I),
MFA CROSS OBJECTION NO.165 OF 2017(MV-I),
MFA CROSS OBJECTION NO.166 OF 2017(MV-I)
IN MFA NO.1440/2017:
BETWEEN:
SBI GENERAL INSURANCE COMPANY LTD
RUKMINI TOWERS,
PALTFORM ROAD,
SHESHADRIPURAM,
BANGALORE - 560 020.
REP BY ITS MANAGER
...APPELLANT
(BY SRI. PRADEEP B, ADVOCATE)
Digitally signed by
JAI JYOTHI J AND:
Location: HIGH
COURT OF
KARNATAKA 1. A.K. SRINATH SHETTY,
S/O NARAYANA SEHTTY,
NOW AGED ABOUT 55 YEARS,
R/AT NO. 233/A,
NEAR VINAYAKA TENT,
HALAHALLI, MANDYA CITY -571 401
2. M/S FRONTLINE CORPORATION LTD,
NO.51/3, 2ND CROSS ROAD,
KOTHADHARAM LAYOUT,
BEHIND NAGA THEATER ROAD,
ULSOOR, BANGALORE - 560 042.
-2-
NC: 2024:KHC:7726
MFA No. 1440 of 2017
C/W MFA No. 1439 of 2017
MFA.CROB No. 165 of 2017
MFA.CROB No. 166 of 2017
3. SUSHEELA PASHA,
S/O SAHEB JAN,
MAJOR,
R/O NETHAHI ROAD,
M. KOPPALU EXTENSION,
SAKALESHAPURA TOWN,
HASSAN DIST - 573 201.
4. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO LTD,
DIVISIONAL OFFICE-II, NO.1,
1ST FLOOR, SRINIVASA PLAZA,
ADICHUNCHANGIRI ROAD,
KUVEMPUNAGARA,
MYSORE - 570 023
...RESPONDENTS
(BY SRI. B.V. ACHARYA SENIOR ADVOCATE FOR
SRI.G. LAKSHMEESH RAO ADVOCATE FOR R1;
SRI.O.MAHESH ADVOCATE FOR R4;
R3- SERVED V/O DATED 13/11/2019
NOTICE TO R2 D/W)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 04.10.2016 PASSED IN MVC NO.
606/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE, & JMFC, ADDITIONAL MACT, MANDYA, AWARDING
COMPENSATION OF Rs. 3,94,878/- WITH INTEREST @ 9% P.A. ON
Rs. 3,74,878/-(FUTURE MEDICAL EXPENSES OF Rs. 1,50,000/- &
Rs. 20,000/- RESPECTIVELY DOES NOT CARRY INTEREST) FROM
THE DATE OF PETITION TILL DEPOSIT.
IN MFA NO.1439/2017:
BETWEEN:
SBI GENERAL INSURANCE COMPANY LTD
RUKMINI TOWERS,
PALTFORM ROAD,
SHESHADRIPURAM,
BANGALORE - 560 020.
REP BY ITS MANAGER
...APPELLANT
-3-
NC: 2024:KHC:7726
MFA No. 1440 of 2017
C/W MFA No. 1439 of 2017
MFA.CROB No. 165 of 2017
MFA.CROB No. 166 of 2017
(BY SRI. PRADEEP B, ADVOCATE)
AND:
1. CHANDRASHEKARA RAO
S/O. LATE P.S. LAXMINARAYANA RAO
NOW AGED ABOUT 52 YEARS
R/AT 1ST STAGE,
SRI LAKSHMI NILAYA,
BEHIND KRISHNA TEMPLE
CAUVERYNAGARA, MANDYA CITY - 571 401.
2. M/S FRONTLINE CORPORATION LTD
NO. 51/3, 2ND CROSS ROAD
KOTHADHARAM LAYOUT
BEHIND NAGA THEATER ROAD
ULSOOR, BANGALORE - 560 042.
3. SUSHEELA PASHA
S/O SAHEB JAN
MAJOR
R/O NETHAJI ROAD
M. KOPPALU EXTENSION
SAKALESHAPURA TOWN, HASSAN DIST - 573 201.
4. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE-II, NO.1
1ST FLOOR, SRINIVASA PLAZA
ADICHUNCHANGIRI ROAD,
KUVEMPUNAGARA, MYSORE - 570 023
...RESPONDENTS
(BY SRI. B.V. ACHARYA SENIOR ADVOCATE FOR
SRI.G. LAKSHMEESH RAO ADVOCATE FOR R1;
SRI.O.MAHESH ADVOCATE FOR R4;
R3- SERVED UNREPRESENTED
R2- V/O DATED 03.01.2020 NOTICE TO R2 D/W)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 04.10.2016 PASSED IN MVC NO.
605/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
-4-
NC: 2024:KHC:7726
MFA No. 1440 of 2017
C/W MFA No. 1439 of 2017
MFA.CROB No. 165 of 2017
MFA.CROB No. 166 of 2017
JUDGE, & JMFC, ADDITIONAL MACT, MANDYA, AWARDING
COMPENSATION OF Rs. 12,61,645/- WITH INTEREST @ 9% P.A.
FROM THE DATE OF PETITION TILL DEPOSIT.
IN MFA CROB NO.165/2017:
BETWEEN:
A. K. SRINATH SHETTY
S/O NARAYANA SHETTY
AGED ABOUT 55 YEARS,
R/AT NO. 233/A,
NEAR VINAYAKA TENT,
HALAHALLI, MANDYA CITY.
...CROSS OBJECTOR
(BY SRI. B.V. ACHARYA SENIOR ADVOCATE FOR
SRI.G. LAKSHMEESH RAO ADVOCATE)
AND:
1. SBI GENERAL INSURANCE COMPANY LTD.,
RUKMINI TOWERS,
PLATFORM ROAD,
SHESHADRIPURAM
BENGALURU - 560 020
REP BY ITS MANAGER
2. M/S FRONTLINE CORPORATION LTD
NO.51/3, 2ND CROSS ROAD,
KOTHADHARAM LAYOUT,
BEHIND NAGA THEATRE ROAD,
ULSOOR
BENGALURU - 560 042
(OWNER OF LORRY BEARING NO.
KA-04-A-7146)
3. SUSHEEL PASHA
S/O. SAHEB JAN
MAJOR,
R/O NETHAJI ROAD,
M. KOPPALU EXTENSION,
SAKALESHPURA TOWN,
-5-
NC: 2024:KHC:7726
MFA No. 1440 of 2017
C/W MFA No. 1439 of 2017
MFA.CROB No. 165 of 2017
MFA.CROB No. 166 of 2017
HASSAN DISTRICT
(OWNER OF TATA INDICA CAR
BEARING NO. KA-02-MA-4381)
4. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.,
DIVISIONAL OFFICE-II,NO.1,
1ST FLOOR, SRINIVASA PLAZA
ADICHUNCHANAGIRI ROAD,
KUVEMPU NAGARA, MYSORE - 570 023.
...RESPONDENTS
(BY SRI.B. PRADEEP FOR R1;
SRI. O. MAHESH FOR R4
R3- SERVED AND UNREPRESENTED
NOTICE TO R2 D/W V/O DATED)
THIS MFA. CROB IN MFA NO. 1440/2017 FILED UNDER
ORDER XLI RULE 22 OF THE CPC, READ WITH SECTION 173(1) OF
MOTOR VEHICLE ACT, 1988, AGAINST THE JUDGMENT AND
AWARD DATED 04.10.2016 PASSED IN MVC NO. 606/2014 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
ADDITIONAL MACT, MANDYA, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA CROB NO.166/2017:
BETWEEN:
CHANDRASHEKARA RAO
S/O LATE P S LAXMINARAYANA RAO,
NOW AGED ABOUT 52 YEARS,
R/AT 1ST STAGE, 'LAKSHMI NILAYA',
BEHIND KRISHNA TEMPLE,
CAUVERYNAGARA, MANDYA CITY.
...CROSS OBJECTOR
(BY SRI. B.V. ACHARYA SENIOR ADVOCATE FOR
SRI.G. LAKSHMEESH RAO ADVOCATE)
AND:
1. SBI GENERAL INSURANCE COMPANY LTD.,
-6-
NC: 2024:KHC:7726
MFA No. 1440 of 2017
C/W MFA No. 1439 of 2017
MFA.CROB No. 165 of 2017
MFA.CROB No. 166 of 2017
RUKMINI TOWERS,
PLATFORM ROAD,
SHESHADRIPURAM,
BANGALORE - 560 020
REP BY ITS MANAGER.
2. M/S FRONTLINE CORPORATION LTD
NO.51/3, 2ND CROSS ROAD,
KOTHADHARAM LAYOUT,
BEHIND NAGA THEATER ROAD,
ULSOOR,
BANGALORE - 560 042.
3. SUSHEEL PASHA
S/O SAHEB JAN,
MAJOR, R/O NETHAJI ROAD,
M KOPPALU EXTENSION,
SAKALESHAPURA TOWN,
HASSAN DIST.
(OWNER OF TATA INDICA CAR
BEARING NO. KA-02-MA-4381)
4. THE DIVISIONAL MANAGER
NATIONAL INSURANCE CO. LTD.
DIVISIONAL OFFICE-II, NO. 1,
1ST FLOOR, SRINIVASA PLAZA,
ADICHUNCHANGIRI ROAD,
KUVEMPUNAGARA, MYSORE - 570023
...RESPONDENTS
BY SRI. B. PRADEEP FOR R1;
SRI. O. MAHESH FOR R4
R3- SERVED AND UNREPRESENTED
V/O DATED 22.02.2024 NOTICE TO R2 D/W)
THIS MFA. CROB IN MFA. NO. 1439/2017 IS FILED U/O 41
RULE 22 OF CPC, R/W SEC. 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 04.10.2016 PASSED IN MVC NO.
605/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL
JUDGE, & JMFC, ADDITIONAL MACT, MANDYA, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
-7-
NC: 2024:KHC:7726
MFA No. 1440 of 2017
C/W MFA No. 1439 of 2017
MFA.CROB No. 165 of 2017
MFA.CROB No. 166 of 2017
THESE APPEALS AND MFA CROBS, COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA Nos.1440/2017 and 1439/2017 are filed by the Insurance Company challenging the judgment and award dated 04.10.2016 passed in MVC Nos.606/2014 & 605/2014 by II Addl. Senior Civil Judge & Addl. MACT, Mandya, seeking reduction of compensation amount.
2. MFA Crob. Nos.165/2017 and 166/2017 are filed by the claimants challenging the aforesaid judgment and award for seeking enhancement of compensation.
3. The factum of accident, injuries sustained by the claimants and coverage of insurance are not in dispute.
4. Heard the arguments from both sides and perused the records.
5. Sri.B.Pradeep, learned counsel for the Insurance Company submitted that the claimant is a businessman and -8- NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 selling TV and other electronic items. The injuries sustained in the accident and disability suffered by the claimant cannot impair the loss of earning capacity in future, but the Tribunal has awarded compensation under the head loss of future income due to disability, which is not correct. It is further submitted that when there is no loss of future income and business is continuing one and the claimant is doing business by supervising his employees, therefore, there is no question of suffering loss and affecting his future earning capacity as business is continued. Therefore, awarding of compensation under the head loss of future income due to disability is not correct. Hence, prays to allow the appeal filed by the Insurance Company.
6. On the other hand, Sri B.V.Acharya, learned Senior counsel appearing for Sri G.Lakshmeesh Rao as counsel for the claimants submitted that the claimant in MVC.No.605/2014 has sustained right acetabulum fracture with right foot droop and mandible fracture. -9-
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017
7. The claimant has suffered fracture of acetabulum and fracture of mandible and the fracture is to the head of femur and dislocate to acetabulum, which creates a significant disability that the claimant is not able to do work as he was doing before the accident. Therefore, the claimant is not able to do his business effectively to sit and stand properly and also to walk. Certainly, it affects his future earning capacity and in this regard, the Tribunal is correct except the percentage of disability held by the Tribunal.
8. Further submitted that the compensation awarded under other heads such as incidental expenses, future medical expenses, amenities and loss of income during laid up period, are all on lesser side, therefore prays for enhancement of compensation in respect of claimant - Chandrashekar is concerned.
9. Further submitted that Srinath Shetty is concerned the claimant has incurred loss of future income at 50% is not correct as the claimant has suffered only fracture of mandible
- 10 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 bones and the percentage of disability is lesser than percentage, which is not significant one and therefore, addition of income towards 'loss of future prospects in life' is not correct. Further submitted that compensation of Rs.1,800/- given towards incidental charges is on meager one and therefore prays for enhancement. Further compensation awarded towards future life prospects is on lesser side. Hence, prays for enhancement of compensation. MFA No.1439/2017 & MFA Crob. No.166/2017 (MVC Nos.605/2014):
10. From the medical evidence on record as per Exs.P- 17 - wound certificate, Ex.P-18 - discharge summary and X- ray films coupled with evidence of doctor - PW4, it is proved that claimant has suffered following injuries:
1. Laceration of 3 cm x 1 cm x bone deep on the right side of forehead.
2. Laceration of 2 cm x 0.5 cm x muscle deep on the right upper eyelid.
3. Laceration of 4 cm x 0.5 cm x muscle deep on the inner aspect of lower lip with dentoalveolar
- 11 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 fracture with loss of left upper central and lateral incisor teeth.
4. Reddish contusion of 5 cm x 4 cm on the right elbow.
5. Swelling and deformity of right hop with underlying fracture of acetabulum with dislocation of femur head (X-ray No.-5168).
11. Considering the nature of injuries sustained by the claimant, as above discussed, the compensation awarded under the injuries, pain and sufferings i.e., Rs.1,00,000/- is found to be just and proper.
12. The compensation of Rs.2,59,074/- awarded by the Tribunal under the head 'medical expenses' is as per the actual medical bills produced by the claimant, which needs no interference. Hence, same is kept intact.
13. The doctor - PW4 has stated that the claimant has suffered 13% of physical disability towards right lower limb and the Tribunal has taken 13% as functional disability and by holding monthly income of the claimant at Rs.20,000/- per
- 12 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 month, accordingly awarded loss of future income due to disability. Assessment of functional disability is not a mathematical or arithmetical calculation, so as to make deduction at some percentage as it is done in the present case i.e., deduction of 1/3rd of total percentage of disability. The 'loss of future income due to disability including loss of future prospects in life' can be assessed and evaluated based on the nature of avocation/profession/business of the claimant, injuries, which part of injuries occurred to the claimant and how it affects the nature of work. Therefore, determining the 'loss of future income due to disability' is the component of all the above stated factors. In this regard, the Tribunal has not held the correct parameters.
14. In the present case, the claimant is Proprietor of Sahana Sales and Services at Mandya City after obtaining licence from Mandya and Labour Office and he is an Income Tax payee. The Hon'ble Supreme Court in the case of RAJ
- 13 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 KUMAR v. AJAY KUMAR & ANR1 (RAJ KUMAR's case (supra)) was pleased to issue guidelines as to how to make assessment of functional disability and loss of future income due to disability. While considering the present case on the principle of law laid down by the Apex Court in RAJ KUMAR's case (supra), the claimant has suffered fracture of acetabulum with dislocation of femur head. Here the femur of the head is dislocated due to fracture caused to acetabulum then it creates more disability compared to when femur is not dislocated. Though there is fracture to the acetabulum but the femur head is dislocated which is based for fixing aceteabulum. Therefore, on these circumstances the claimant may not be able to sit, stand and walk for long time and also he is not able to travel in the vehicle for longer journey and under these circumstances, certainly the supervising and the monitoring capacity of the claimant is decreased. While considering that the claimant is a businessman, it requires constant supervision and monitoring and travelling, otherwise 1 (2011)1SCC343
- 14 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 the business activities are affected. The claimant is not able to carry out his business and the maintenance his turnover by doing business as effectively as he was doing before the accident. Therefore, this amount to causing loss in the business and business may not progress in future. Therefore, in this background, the claimant has suffered loss of future income due to disability besides affecting future prospects in life by doing business.
15. Considering this percentage of functional disability taken by the Tribunal at 13% is on lesser side. Also the claimant has suffered fracture of mandible by losing his face and the face has become disfigured. The claimant has also suffered other injuries as above discussed. Therefore, when this being the grievous injuries suffered by the claimant, by following the principle of law laid down by Supreme Court in RAJ KUMAR's case (supra) it is just and proper to take 20% as functional disability.
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NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017
16. The claimant is 49 years old. Therefore, the appropriate multiplier is '13' and as per principle of law laid down by the Supreme Court in the case of SIDRAM vs. DIVISIONAL MANAGER, UNITED INDIA INSURANCE COMPANY LIMITED AND ANOTHER2 (SIDRAM's case (supra)) and decision of Division Bench of this Court in the case NEW INDIA ASSURANCE COMPANY VS. ABDUL S/O MEHABOOB TAHASILDAR3, certain income has to be added towards 'loss of future prospects in life'. According to the age group of claimant as per decision of Supreme Court in the case of PRANAY SETHI's case (supra) 30% of income is added towards 'loss of future prospects in life'.
17. The claimant is a businessman being a Proprietor of shop and an Income Tax assessee and has filed Income Tax Returns as per Ex.P-16 for the years 2012-13, 2013-14, the gross income shown for the respective assessment years are Rs.2,33,211/- and Rs.2,31,165/- respectively. Then, if mesne 2 (2023) 3 SCC 439 3 MFA.NO.103807/2016 C/W MFA.NOS.103835/2016 & 103807/2018 DD.27.05.2022
- 16 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 income is taken from these two years then monthly income of the claimant is proved to be Rs.23,515/- per month. Accordingly, monthly income is taken at Rs.23,515/-. Therefore, loss of earning capacity and future income due to disability including loss of future prospects in life is hereby re- determined and quantified as follows:
Rs.23,515/- + 30% = Rs.7,054/- Rs.30,569/- x 20% x 13 x 12 = Rs.9,53,753/-
18. Further the doctor had deposed that the claimant was entitled to Rs.1,50,000/- towards future medical expenses for future surgeries to the right hip. Considering this aspect, a sum of Rs.2,00,000/- is awarded towards 'future medical expenses'.
19. The Tribunal has awarded sum of Rs.81,785/- towards 'food, nourishment and conveyance and other incidental charges' and Rs.80,000/- is awarded towards 'loss of amenities'. The claimant was inpatient for 20 days for initial period and was compelled to travel to take treatment at
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NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 Udupi from Mandya and has gone to Udupi for 7 times for which the claimant has paid taxi bills, which are produced as per Ex.P-26 which amounts to Rs.73,785/-. Further for going to Udupi for treatment and while inpatient for 20 days the claimant must have spent some amount towards 'food, nourishment and attendant charges, etc.,' accordingly, compensation of Rs.80,000/- is awarded towards conveyance and travelling charges and Rs.35,000/- is awarded towards other incidental expenses like food, nourishment and attendant charges.
20. Further a compensation of Rs.70,000/- is awarded towards loss of amenities.
21. Since the claimant was hospitalized for a period of 14 days and had undergone surgery, a compensation of Rs.1,22,276/- (Rs.30,569/- x 4 months) is awarded towards loss of income during laid up period.
22. Thus, in all the claimant (in MVC No.605/2014) is entitled for compensation under various heads.
- 18 -
NC: 2024:KHC:7726
MFA No. 1440 of 2017
C/W MFA No. 1439 of 2017
MFA.CROB No. 165 of 2017
MFA.CROB No. 166 of 2017
Sl. Awarded by Awarded by
Particulars
No. Tribunal this Court
1 Pain and injuries 1,00,000/- 1,00,000/-
2 Medical expenses 2,59,074/- 2,59,074/-
3 Loss of future income 5,40,786/- 9,53,753/-
4 Future medical expenses 1,50,000/- 2,00,000/-
5 Travelling expenses -- 80,000/-
6 Food, nourishment and
other expenses 81,785/- 35,000/-
7 Loss of amenities 50,000/- 70,000/-
8 Loss of income during laid
up period -- 1,22,276
Total 12,61,645/- 18,20,103/-
23. The Tribunal has awarded compensation of
Rs.12,61,645/-, but the appellant/claimant is entitled to total compensation of Rs.18,20,103/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.5,58,458/- (Rs.18,20,103/- - Rs.5,58,458/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.5,58,458/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal. MFA No.1440/2017 & MFA Crob. No.165/2017 (MVC No.606/2014):
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NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017
24. From the medical evidence on record i.e., discharge summary, lab report, medical bills and prescriptions as per Exs.P-36 to P-39 and X-ray films Exs.C-1 to C-4 coupled with evidence of doctor - PW4, it is proved that claimant has suffered following injuries:
1. Abrasion on the right side of the forehead;
2. Contusion of chin with the fracture of mandible;
3. Dislocation of tempro mandible joint;
4. Right para symphysis and deformity of condyle/contusion injury with blunt injury on anterior chest wall.
25. In the present case, from the medical evidence on record namely, discharge summary, X-ray bills, etc., it is found that the claimant has suffered fracture of mandible bone. Considering the nature of injuries sustained by the claimant the compensation awarded towards pain and suffering Rs.30,000/- is awarded as against Rs.25,000/-
awarded by the Tribunal.
- 20 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017
26. The Tribunal has awarded compensation of Rs.72,074/- under the head medical expenses which is based on the actual bills produced by the claimant. Hence, same requires no interference and is kept intact.
27. In the present case, the doctor has assessed the physical disability at 20% towards face and Tribunal has taken 6% as functional disability. The claimant is doing business of tyre trading. It cannot be said that claimant has not suffered loss of future income due to disability just fracture of mandible and he has nothing to do with the business as tyre trading. Therefore, the Tribunal is correct in holding that the claimant is entitled to compensation towards 'loss of future income' but the percentage of the disability held by the Tribunal is on lesser side. Holding percentage of functional disability is not mathematical and arithmetical calculation. When the claimant suffered fracture of mandible bone, it affects his business as tyre trading. Therefore, 8% of functional disability is taken into consideration. The claimant is an Income Tax assessee and a payee and has filed Income
- 21 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 Tax Returns as per Ex.P-45 for the year 2011-12 and 2013-14 by showing gross income of Rs.2,09,440/- and Rs.2,31,750/- and Rs.2,67,270/- and if mesne income is taken divided by three then the income is proved to be Rs.19,679/- per month. Accordingly, it is taken.
28. The Tribunal has committed error in adding income towards loss of future prospects in life. Income can be added towards 'loss of future prospects in life' where functional disability is significant one and suffered one, otherwise not. In the present case as determined the claimant has suffered only 8% functional disability, which do not impair future prospects in life and the additional income awarded by the Tribunal is set aside. The claimant was aged 55 years and accordingly the appropriate multiplier applicable is '11'. Hence, the 'loss of earning capacity due to disability' is hereby determined as under:
Rs.19,679/- x 8% x 11 x 12 = Rs.2,07,810/-
- 22 -
NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 Thus, the claimant is entitled to compensation of Rs.2,07,810/- under the head 'loss of earning capacity due to disability'.
29. Since the claimant was hospitalized for a period of 6 days, a compensation of Rs.78,716/- (Rs.19,679/- x 4 months) is awarded towards 'loss of income during laid up period'.
30. The Tribunal has awarded compensation towards incidental expenses like food, nourishment and conveyance Rs.1800/-, which is found to be meager one. Accordingly, a compensation of Rs.20,000/- is awarded towards incidental expenses like travelling, conveyance, food, nourishment etc.,
31. Further a compensation of Rs.50,000/- granted towards 'loss of amenities' is found to be correct. Hence, same is kept intact.
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NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017
32. The Tribunal has stated that the claimant is entitled for Rs.30,000/- towards future medical expenses, but only granted Rs.20,000/- on this ground.
33. Thus, in all the claimant (in MVC No.606/2014) is entitled for compensation under various heads.
Sl. Awarded by Awarded by
Particulars
No. Tribunal this Court
1 Pain and injuries 25,000/- 30,000/-
2 Medical expenses 72,074/- 72,074/-
3 Loss of future income due
to disability 1,58,004/- 2,07,810/-
4 Future medical expenses 20,000/- 30,000/-
5 Food, nourishment and
other expenses 1,800/- 20,000/-
6 Loss of amenities 50,000/- 50,000/-
7 Loss of income during laid
up period 68,000/- 78,716/-
Total 3,94,878/- 4,88,600/-
34. The Tribunal has awarded compensation of
Rs.3,94,878/-, but the appellant/claimant is entitled to total compensation of Rs.4,88,600/-. Hence, the appellant/claimant is entitled to enhanced compensation of Rs.93,722/- (Rs.4,88,600/- - Rs.3,94,878/-). Therefore, the appellant/claimant is entitled to enhanced compensation of
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NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017 Rs.93,722/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
35. The Tribunal has awarded interest @ 9% p.a. and the same is scaled down to 6% p.a. applicable to the entire award amount payable from the date of petition till the date of realisation. Accordingly, I proceed to pass the following:
ORDER
(i) MFA Nos.1440/2017 & 1439/2017 filed by the insurance company are allowed-in-
part insofar as rate of interest is
concerned.
(ii) MFA Crob. Nos.165/2017 & 166/2017 are
allowed in part.
(iii) The impugned judgment and award dated 04.10.2016 passed by the II Addl. Senior Civil Judge & Addl. MACT, Mandya, in MVC Nos.605/2014 & 606/2014 is modified.
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NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017
(iv) Cross objector/claimant in MFA Crob.
No.166/2014 is entitled to enhanced compensation of Rs.5,58,458/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
(v) Cross objector/claimant in MFA Crob.
No.165/2014 is entitled to enhanced compensation of Rs.93,722/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
(vi) The entire compensation amount shall be released in favour of the cross objectors/claimants in both MFA Crob. Nos.166/2017 & 165/2017.
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NC: 2024:KHC:7726 MFA No. 1440 of 2017 C/W MFA No. 1439 of 2017 MFA.CROB No. 165 of 2017 MFA.CROB No. 166 of 2017
(vii) 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.
(viii) Amount in deposit shall be transmitted to the Tribunal forthwith.
(ix) However, the cross objectors/claimants would not be entitled to interest for the delay period of 151 days in MFA Crob.
No.165/2017 and 127 days in MFA Crob.
No.166/2017.
(x) No order as to costs.
(xi) Draw award accordingly.
Sd/-
JUDGE
PB: Para No.1 to 5
DR: Para No.6 to
List No.: 1 Sl No.: 13