IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2018 PRESENT THE HON’BLE MR. JUSTICE B.S. PATIL AND THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV M.F.A No.7268/2015(MV) c/w M.F.A No.5274/2015(MV) In MFA No.7268/2015 (MV) BETWEEN THE BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED, 1ST FLOOR, REDDY COMPLEX, NO 67/1, WHITEFIELD ROAD, MAHADEVAPURA POST, BANGALORE - 560 048 REPRESENTED BY THE MANAGER REGIONAL OFFICE (MOTOR TP HUB), THE NEW INDIA ASSURANCE COMPANY LIMITED, MAHALAKSHMI CHAMBERS, No.9, M.G. ROAD, BANGALORE - 560 001.
(BY SRI RAJAGOPALAN R, ADVOCATE) ... APPELLANT AND 1. Ms. M. DEEPIKA, DAUGHTER OF SHRI C.MUNIKRISHNA, AGED ABOUT 29 YEARS, FLAT NO.N-203, PURVA PANORAMA, KALENA AGRAHARA, NEAR MEENAKSHI TEMPLE, BANNERGHATTA MAIN ROAD, BANGALORE - 560 076.
2. M/s. MPHASIS LIMITED, No.65/2, BAGMANE TECHNOLOGY PARK, BYRASANDRA-C.V.RAMAN NAGAR, BENGALURU - 560 093.
3. SHRI N. JAGADESSH SON OF SHRI NANJUNDAPPA, MAJOR, NO 198, THUBARAHALLI, WHITEFIELD MAIN ROAD, RAMAGONDANAHALLI POST, BANGALORE - 560 066.
4. SHRI SIDDARAMA, SON OF SHRI SIDDALINGAPPA, MAJOR, ALL WELL ENGINEERING, No.1864/3, VIJAYANAPURA, BANGALORE - 560 016.
WITH PERMANENT ADDRESS AT No.10, 3RD CROSS, 3RD MAIN, NR LAYOUT, DOORVANINAGAR, BANGALORE - 560 016 5. SHRI MUTHURAJAN, SON OF SHRI SENEGODA, MAJOR No. A–637, MIG HOUSING BOARD COLONY, CHAMARAJANAGAR - 571313 6. M/s. RELIANCE GENERAL INSURANCE COMPANY LIMITED, 2ND FLOOR, ENVIRON TOWERS, No.60/460/4, HOSUR MAIN ROAD, ELECTRONIC CITY, BANGALORE - 560 100 7. SHRI N.RAMESH, MAJOR, NO 198, THUBARAHALLI, WHITEFIELD MAIN ROAD, BANGALORE – 560066.
8. M/s. COMFORT CAN TRANSPORT SOLUTIONS GROUP No.100/18, G STREET, LAKSHMANA LAYOUT, JOGUPALYA, ULSOOR, BANGALORE - 560 008.
REPRESENTED BY ITS PROPRIETOR SHRI HARSHA K. SHETTY ... RESPONDENTS (BY SRI S SUBRAHMANYA, ADVOCATE FOR R1 Sri JASHUA SAMUEL, ADVOCATE FOR Sri J HUDSON SAMUEL & PARTNERS FOR R2 R3 & R7 SERVED V/O DATED 30.6.2016 NOTICE TO R5, 6 & 8 DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.04.2015 PASSED IN MVC No.2027/2010 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES AND XXVI ACMM, (SCCH-09) BENGALURU, AWARDING COMPENSATION OF RS.68,76,000/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL ITS REALIZATION.
IN MFA No.5274/2015 (MV) BETWEEN Ms. DEEPIKA M D/O SRI C MUNIKRISHNA, AGED ABOUT 24 YEARS, RESIDING AT FLAT No.N-203, PURVA PANORAMA, KALENA AGRAHARA, BANNERGHATTA MAIN ROAD, NEAR MEENAKSHI TEMPLE, BANGALORE-560 076 (BY SRI S SUBRAHMANYA, ADVOCATE For M/s. UPASANA ASSOCIATES, ADVS.) ... APPELLANT AND:
1. M/s. MPHASIS LTD., #65/2, BAGMANE TECHNOLOGY PARK, BYRASANDRA, CV RAMAN NAGAR, BANGALORE-560 093.
REPRESENTED BY ITS MANAGING DIRECTOR 2. SRI N JAGADEESH S/O SRI NANJUNDAPPA, MAJOR N AGE, RESIDING AT No.198, THUBARAHALLI, WHITEFIELD MAIN ROAD, RAMAGONDANAHALLI POST, BANGALORE-560 066 (DRIVER OF TATA SUMO VEHICLE VEHICLE BEARING REGISTRATION No.KA-53-980) 3. SRI S SIDDARAMA S/O SRI SIDDALINGAPPA, MAJOR IN AGE, ALL WELL ENGINEERING, No.1864/3, VIJYANAPURA, BANGALORE ALSO HAVING PERMANENT ADDRESS AT: NO.10, 3RD CROSS, 3RD MAIN, NR LAYOUT, DOORVANINAGAR, BANGALORE-560 016 (DRIVER OF ASHOK LEYLAND GOODS/ CARRIAGE VEHICLE BEARING REGN. No.KA-10-9001) 4. SRI MUTHURAJAN, S/O LATE SRI SENEGODA, MAJOR IN AGE, RESIDING AT A 637, MIG HOUSING BOARD COLONY, CHAMARAJANAGAR. (REGISTERED OWNER OF ASHOK LEYLAND GOODS/CARRIAGE VEHICLE BEARING REGN. No.KA-10-9001) 5. THE NEW INDIA ASSURANCE COMPANY LTD NO.67/1, 1ST FLOOR, REDDY COMPLEX WHITEFIELD ROAD, MAHADEVAPURA POST, BANGALORE-560 048.
(REPRESENTED BY ITS MANAGING DIRECTOR/ AUTHORIZED SIGNATORY.
(INSURER OF ASHOK LEYLAND GOODS/CARRIAGE VEHICLE BEARING REGN.
No.KA-10-9001) ... RESPONDENTS (BY SRI R RAJAGOPALAN, ADVOCATE FOR R5 R1 TO R4 DISPENSED WITH V/O DT. 16.2.2016) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 1.4.2015 PASSED IN MVC No.2027/2010 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, 26TH ACMM, (SCCH-09), BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’s COMING ON FOR ADMISSION, THIS DAY B.S.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel for the parties, we have heard the matters for final disposal.
2. These two appeals arise out of the judgment and award dated 01.04.2015 passed by MACT, Bengaluru, (SCCH-09). By the said judgment, Tribunal has disposed of MVC No.2027/2010 filed by the injured-claimant who is respondent No.1 herein, awarding total compensation in a sum of Rs.68,76,000/- along with interest at 6% per annum from the date of petition till its realization.
3. The New India Assurance Company Limited, appellant in MFA No.7268/2015, is jointly and severally held liable to pay compensation along with the owner of the offending vehicle involved in the accident, who is arrayed as respondent No.5 herein. The New India Assurance Company Limited is aggrieved by the quantum of compensation and is urging that the amount awarded in a total sum of Rs.68,76,000/- is on the higher side. On the other hand, the claimant i.e. injured Deepika has filed the connected appeal in MFA No.5274/2015 seeking enhancement of compensation urging several grounds.
4. I.A.No.1/2016 is filed by the claimant-appellant in MFA No.5274/2015 under Order XLI Rule 27 of CPC seeking permission to produce original medical bills of Sakara World Hospital to show that a total sum of Rs.15,94,189/- has been spent towards medical expenses for the medical treatment which was taken by the injured after the judgment was rendered by the Tribunal.
5. We have heard learned counsel for both parties on the said application as well.
6. There is no dispute with regard to nature of accident, nature of injuries suffered and actionable negligence on the part of offending vehicle. Therefore, we do not intend to delve into this aspect of the matter in these appeals.
Suffice to observe that on 18.04.2009, at about 4.30 a.m., when claimant Deepika, aged about 24 years, was proceeding in the Tata Sumo bearing Regn. No.KA-53-980, a lorry bearing Regn. No.KA-10-9001 came in a rash and negligent manner and dashed against the Tata Sumo, thereby causing grievous injuries to Deepika. The grievous injuries suffered by her left behind permanent physical disability. She has taken prolonged treatment. The Doctor has, in his evidence, assessed physical disability suffered by the claimant at 90%. It has been found, as per the evidence placed on record, that Deepika was a B.E. Graduate and was working in a company called M/s. Mphasis Limited, Bengaluru, getting salary of Rs.14,000/- per month.
Coming to the quantum of compensation awarded by the Tribunal, as could be seen from the discussions made by the Tribunal, taking the monthly income @ Rs.14,000/-, the annual income of the injured was arrived at Rs.1,68,000/-. 50% of the same in a sum of Rs.84,000/- has been added to the said annual income to arrive at annual loss of income at Rs.2,52,000/-. As disability was assessed at 90%, annual loss of income was reduced to Rs.2,26,800/-. As the claimant was aged 24 years at the time of the accident, multiplier of 18 has been applied and the total amount towards loss of future income due to permanent disability was arrived at Rs.40,83,000/-. Based on the original medical bills produced during the course of trial, Tribunal has quantified Rs.13,31,000/- towards medical expenses. For future medical expenses, an amount of Rs.1,50,000/- has been awarded. Other amounts are awarded under different heads in a tabular statement. The same is extracted hereunder;
1. Pain and sufferings Rs. 75,000/-
2. Attendant charges and nutritious expenses.
Rs. 25,000/-
3. Transportation charges. Rs. 40,000/-
4. Medical expenses Rs.13,31,000/-
5. Loss of future income due to permanent disability.
Rs.40,83,000/-
6. Loss of marriage prospects Rs. 1,00,000/-
7. Future medical expenses Rs. 1,50,000/-
8. Loss of future amenities, happiness and expectation in life.
Rs. 1,00,000/-
9. Future attendant charges Rs. 9,72,000/-
Total Rs.68,76,000/-
Thus, a total sum of Rs.68,76,000/- with interest at 6% per annum has been awarded.
7. Learned counsel appearing for the appellant- Insurance Company urges that the Tribunal ought to have taken note of the deposit of a sum of Rs.5,24,328/- by the employer before the Workmen’s Compensation Commissioner and another sum of Rs.6,00,000/- paid as ex-gratia by the employer, so also a sum of Rs.91,000/- allegedly paid by the employer under the same head. It is his further submission that while applying the multiplier method for arriving at loss of future income due to permanent disability, the Tribunal has erred in not deducting any amount towards personal expenses of the injured. Even towards loss of future prospects, 50% of the income has been added.
8. Per contra, in support of the claim for enhancement of compensation, learned counsel appearing for the claimant has specifically contended that the compensation amount deposited before the Workmen’s Compensation Commissioner has not been received by the injured work- woman and, therefore, the same cannot be deducted from out of the compensation. So also, ex-gratia amount granted by the employer cannot be reckoned for the purpose of compensating the claimant who has been paralyzed for the rest of her life at the young age of 24 years. It is also pointed out by him that towards medical expenses, although xerox copies of medical bills were produced and an application was filed seeking to produce the original medical bills, the Tribunal has erroneously rejected the same. As regards the award made under different heads, learned counsel for the claimant is aggrieved of the alleged meager award.
9. Considerable argument is addressed on the application filed seeking to produce additional evidence contending inter alia that future medical expenses awarded in a sum of Rs.1,50,000/- is unrealistic inasmuch as the original medical bills produced along with the application filed under Order XLI Rule 27 of CPC disclose that even after the judgment was pronounced by the claims Tribunal, the claimant has undergone medical treatment by getting herself admitted to the hospital for prolonged duration and was indeed compelled to spend nearly Rs.15,94,189/-. This ordeal, counsel submits that, claimant has to undergo for the rest of her life and against the head future medical expenses, realistic amount has to be computed and awarded by this Court so as to make the compensation payable just and realistic.
10. Upon hearing learned counsel appearing on both sides, the points that arise for our consideration are;
i) Whether the quantum of compensation awarded by the Tribunal is just, fair and reasonable having regard to the facts and circumstances and evidence on record?
ii) Whether the application filed under Order XLI Rule 27 of CPC deserves to be allowed?
iii) To what order?
11. As rightly contended by learned counsel for the claimant, the claimant has been fully paralyzed and is not in a position to attend to any work and indeed needs support of an attendant for the rest of her life. She was aged about 24 years at the time of the accident. In such a situation, the Tribunal having accepted the medical evidence and having assessed permanent disability at 90%, ought to have taken the loss of income due to permanent disability at 100% instead of reducing it to 90% because she is incapable of earning income as a result of physical disability. In that event, the Tribunal ought to have taken the total loss of annual income at Rs.2,52,000/- and applying the multiplier of 18 ought to have quantified the amount at Rs.45,36,000/-. It has to be borne in mind that when such a method is adopted, the personal expenses that the claimant would have incurred require to be deducted. In our view, having regard to the facts and circumstances of the case, 1/3rd deserves to be deducted out of the income towards personal expenses. If that is done, the amount towards the head loss of future income due to permanent disability comes to Rs.30,24,000/-. Insofar as other heads are concerned, the Tribunal, in our view was conservative in awarding amounts, having regard to the nature of the injuries suffered and the consequence of permanent disability. As against the head pain and suffering, award of Rs.75,000/- requires to be doubled to Rs.1,50,000/- Keeping in mind the prolonged treatment and pain and agony suffered. Insofar as loss of marriage prospects, Rs.1,00,000/- has been awarded, which does not merit interference. The award towards loss of future amenities, happiness and expectation in life deserves to be enhanced to Rs.1,50,000/- instead of Rs.1,00,000/-. The total amount thus calculated would come to Rs.59,42,000/-.
12. Insofar as the amount of Rs.5,24,328/- deposited before Workmen’s Compensation Commissioner, it is submitted by the claimant that the said amount has not been received by her. If that is so, the said amount cannot be deducted from out of the compensation payable. Appellant-New India Assurance Company would be, however, entitled to move the Workmen’s Compensation Commissioner, seeking release of the said amount.
Insofar as other two amounts, i.e. Rs.6,00,000/- and Rs.91,000/- which are said to have been paid as gratuitous amount by the employer, the Insurance Company cannot seek deduction of the same, as the said amount is paid by the employer as gratis, having regard to the employer- employee relationship between them and the nature of grievous injuries the employee suffered. In the evidence of Assistant Manager of the respondent-Company, in which the injured claimant was engaged, he has deposed that this amount of Rs.6,00,000/- and another sum of Rs.91,000/- and as also certain payments towards medical expenses were made as a special case. Though he pleads ignorance as to whether the said amount was paid as ex- gratia, fact remains that the same was not paid as part of the compensation and whatever has been paid has been so done treating the case as a special case. Therefore, the contention of the Insurance Company to give set off to the said amount while computing total compensation cannot, in the facts and circumstances of this case, be accepted.
13. Insofar as the application filed under Order XLI Rule 27 of CPC and claim made by the claimant to take the medical bills produced along with the said application as additional evidence for awarding future medical expenses in a sum of Rs.15,94,189/-, after giving anxious consideration to the nature of medical bills produced and the contention urged by the Insurance Company stating that as the medial treatment has been availed by the injured claimant nearly after one year from the date of disposal of the claim petition, unless casual connection is established between the accidental injury and the treatment taken long after the disposal of the case, the Insurance Company cannot be saddled with responsibility to reimburse the future medical expenses.
14. We are of the view that this aspect of the controversy requires examination by recording evidence. We cannot, having due regard to the grievous nature of injuries suffered by the young lady, discard the assertion made by the claimant that she has been forced to take continued future and further medical help and incur expenses in that regard. As the documents produced along with the application I.A.No.1/2016 came into existence after the disposal of the claim petition, it is for the claimant to establish connection between the need for such medical expenditure and the nature of the injury suffered in the accident. It is only thereafter that award of compensation under the head future medical expenses to include the amount involved in the medical bills now sought to be produced can be though of. In that view of the matter, only to the extent of considering the question of award of future medical expenses by referring to the medical bills produced along with I.A.No.1/2016 obtained from Sakara World Hospital, the matter shall stand remitted to the claims Tribunal for recording evidence and for passing of the award only in respect thereof.
15. In the result and for the foregoing reasons, we hold that the claimant is entitled to the following compensation;
1. Pain and sufferings Rs. 1,50,000/-
2. Attendant charges and nutritious expenses.
Rs. 25,000/-
3. Transportation charges. Rs. 40,000/-
4. Medical expenses Rs.13,31,000/-
5. Loss of future income due to permanent disability.
Rs.30,24,000/-
Total Rs.59,42,000/-
The claimant is entitled for this amount along with interest at 6% per annum from the date of petition till the date of payment/deposit.
16. Insofar as future medical expenses is concerned, the Tribunal is directed to record fresh evidence, by receiving additional evidence to be produced by both parties and pass necessary award within a period of six months from the date of receipt of copy of this judgment. In case, the Tribunal comes to the conclusion that claimant is entitled for future medical expenses over and above what has been awarded in a sum of Rs.1,50,000/-, the Tribunal shall have to give deduction to the sum of Rs.1,50,000/- while determining the future medical expenses.
17. Insofar as the amount of Rs.5,24,328/- said to have been deposited before Workmen’s Compensation Commissioner by the employer in connection with the injured claimant, the appellant New India Assurance company shall be entitled to apply for release of the said amount whereupon concerned authorities shall have to release the amount in favour of the New India Assurance Company.
18. Out of the compensation amount awarded, 50% of the amount shall be released in favour of the claimant and the remaining 50% shall be invested in any nationalized bank initially for period of three years as terms deposit renewable periodically.
19. Both the appeals are disposed of in the above terms.
Sd/- JUDGE Sd/- JUDGE mv