IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.1417/2015 C/W M.F.A.No.8519/2015, M.F.A.CROB No.122/2016(MV) M.F.A.No.1417/2015:
BETWEEN:
THE DIVISIONAL MANAGER CHOLAMANDALAM, M S GIC LTD., No.130/5, 2ND FLOOR, 15TH CROSS, J P NAGAR 3RD PHASE BANGALORE-560 078.
NOW REP. BY ITS LEGAL MANAGER SR. MANAGER - CLAIMS CHOLAMANDALAM M S GIC LTD., No.1/2, GOLDEN HEIGHTS 6TH FLOOR, 59TH C CROSS 4TH M BLOCK, RAJAJINAGAR BANGALORE-10.
(BY SRI PRADEEP B, ADVOCATE) AND:
1. SRI KRISHNA S/O LATE NARAYANAPPA NOW AGED ABOUT 30 YEARS ..APPELLANT R/A IMMADIHALLI (V & P) WHITEFIELD ROAD D GROUP LAYOUT BANGALORE-560 066.
2. SRI NARASIMHA MURTHY S/O MUNIYAPPA MALIYAPPANAHALLI VILLAGE KURGAL POST, VEMAGAL HOBLI KOLAR DIST.- 563 101.
..RESPONDENTS (BY SRI K T GURUDEVA PRASAD, ADVOCATE FOR R1, SRI J G CHANDRA MOHAN, ADVCOATE FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.11.2014 PASSED IN MVC No.5301/2011 ON THE FILE OF THE ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, MAYOHALL UNIT, BANGALORE, AWARDING A COMPENSATION OF RS.14,51,206/- WITH INTEREST @ 6% P.A ON RS.13,51,206/- (EXCLUDING FUTURE MEDICAL EXPENSES OF RS.1,00,000/-) FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.
IN MFA No.8519/2015: BETWEEN:
SRI KRISHNA S/O LATE NARAYANAPPA AGED ABOUT 30 YEARS, R/AT IMMADIHALLI (V & P) WHITEFIELD ROAD BANGALORE - 560 066.
..APPELLANT (BY SRI GURUDEV PRASAD K T, ADVOCATE) AND:
1. SRI NARASIMHA MURTHY S/O MUNIYAPPA, MALIYAPPANAHALLI VILLAGE, KURGAL POST, VEMAGAL HOBLI, KOLAR DIST.-563 101 2. CHOLAMANDALAM M/S. GENERAL INSURANCE CO. LTD., No.130/5, 2ND FLOOR, 15TH CROSS JP NAGAR, 3RD PHASE BANGALORE-560 078.
..RESPONDENTS (BY SRI J G CHANDRA MOHAN, ADVOCATE FOR R1, SRI B PRADEEP, ADVOCATE FOR R2) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:17.11.2014 PASSED IN MVC No.5301/2011 ON THE FILE OF THE ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT (SCCH.19), COURT OF SMALL CAUSES, MAYOHALL UNIT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA CROB No.122/2016: BETWEEN:
SRI NARASIMHA MURTHY S/O MUNIYAPPA, AGED ABOUT 39 YEARS RESIDING AT MALIYAPPANAHALLI VILLAGE, KURGAL POST, VEMAGAL HOBLI, KOLAR DIST.-563 101.
..CROSS OBJECTOR (BY SRI J G CHANDRA MOHAN, ADVOCATE) AND:
1. SRI KRISHNA S/O LATE NARAYANAPPA, AGED ABOUT 31 YEARS R/AT IMMADIHALLI (V & P) WHITEFIELD ROAD BANGALORE-560 066 2. M/s.CHOLAMANDALAM M.S GENERAL INSURANCE CO. LTD., BY ITS DIVISIONAL MANAGER No.130/5, 2ND FLOOR, 15TH CROSS, JP NAGAR 3RD PHASE, BANGALORE - 560 078.
..RESPONDENTS THIS MFA CROB IN MFA No.8519/15 IS FILED U/O.41 RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:17.11.2014 PASSED ON MVC No.5301/2011 ON THE FILE OF THE COURT OF SMALL CAUSES, MAYO HALL UNIT, BENGALURU, AWARDING COMPENSATION OF RS.14,51,206/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THESE MFAs AND MFA CROB COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeals are listed for `Admission’, with the consent of the learned counsel appearing for the parties, they are taken up for final disposal.
2. Two appeals by the insurer and claimant and cross objection by the owner of the offending vehicle are directed against the Judgment and award dated 17.11.2014 passed in MVC No.5301/2011 by the Additional Judge, Court of Small Causes and MACT, Bengaluru.
3. In order to avoid confusion and overlapping, the parties are hereinafter referred with reference to their status and rankings as it stood before the Tribunal.
4. Claim petition filed by one Krishna seeking compensation under Section 166 of Motor Vehicles Act because of the injuries suffered by said Krishna due to road traffic accident that occurred on 23.05.2011 at about 7 P.M., when he was traveling as a passenger in Autorickshaw bearing registration No.KA-07-9582, from H Cross towards Maliappanahalli on H Cross- Kolar road by that time driver of the Autorickshaw drove the same at very high speed in a zigzag manner besides being rash and negligent. The accident occurred near Madivala Village Sri ShaniMahatma Temple. The driver lost control over the said auto and entered to extreme right side of the road and fell into road side ditch and said Autorickshaw turtled because of haphazard driving and the petitioner was thrown on the road and sustained serious injuries. He was taken to Vydehi Hospital, had treatment including x-rays, CT Scan. It was revealed that Intertrochanter fracture of right femur, CRIF Stage V, renal failure and other injuries all over the body. He was said to be inpatient from 24.05.2011 to 21.06.2011. Further complications also occurred to the petitioner because of the said injuries. He also underwent intubation and was connected to Ventilator. Doppler guided left internal jugular catheter was placed and initiated for Haemodialysis. Doctor advised him of continuous treatment. It is stated that considering different phases he was hospitalized intermittently to the extent of 105 days and he incurred expenditure on various heads and claimed compensation of Rs.25,00,000/-.
5. Learned Member was accommodated with the oral evidence of PW-1 and documentary evidence Exhibits P-1 to P-30 and Exhibits R-1 to R-10. Petitioner has stated in his evidence that he was working as a Coolie and earning a sum of Rs.300/- per day.
6. Insurance company took up the contention driver had no valid and proper licence and that the driver projected by the owner for the purpose of litigation is different one than the one who was driving the Autorickshaw. Learned counsel Sri Pradeep would submit that it was the owner who was driving the vehicle. However in order to escape liability to make good the compensation as the owner, driver of the vehicle at the time of accident cleverly but illegally shifted on a third party who possessed requisite licence. Learned counsel Sri Pradeep also would submit that it is revealed during private investigation that the owner Narasimha Murthy infact suffered injuries during accident and projected driver was without any injuries.
7. Insofar as injuries are concerned, following extract from the Judgment of the Tribunal, the details are:
Intertrochanter fracture of right femur, CRIF Stage V, renal failure and injuries all over the body.
As per wound certificate Exhibit P-5 :
1. Abdominal Abrasion 3x3 cms 2. Intertrochanteric fracture femur (rt) 3. Chronic Renal Failure Stage V 4. Secondary Hyerptension 5. Pulmonary Edema 6. Lower Respiratory Tract Infection 7. Acute Respiratory Distress Syndrome 8. Sepsis 9. Anaemia 1 and 2 are primarily due to alleged RTA 3-9 are the complication following femur fracture.
8. Thus, it is stated that petitioner was inpatient for 105 days and medical expenditure incurred by him is Rs.2,07,146/- The break up of compensation granted is as under:
DESCRIPTION AMOUNT Pain and suffering and agony Rs. 50,000.00 Medical expenses Rs.2,07,146.00 Attendant, conveyance, food and diet, nourishment and other incidental expenses Loss of income during treatment period, future amenities and disappointment Rs.1,57,500.00 Rs. 42,000.00 Future Medical Expenses Rs.1,00,000.00 Loss of future income on account of permanent disablement Disappointment, discomfort, frustration and loss of amenities Rs.8,44,560.00 Rs. 10,000.00 Total compensation Rs.14,51,206.00 9. Insofar as appeal in the form of cross objection preferred by the owner of the offending vehicle- Narasimha Murthy is concerned, it is necessary to mention that due to non compliance of office objections, it came to be dismissed on 31.08.2017. However, learned counsel Sri Chandra Mohan filed application for recalling the dismissal order on 02.01.2019, but the application is still pending and in this connection after hearing learned counsel for the owner, claimant and insurer and to avoid multiplicity of litigation and confusion, I.A.2/2019 filed for condonation of delay of 452 days in filing the recalling application and I.A.1/2019 filed for recalling the order dated 31.08.2017 are allowed. MFA Crob No.122/2016 is restored to file. Learned counsel for owner was permitted to address. Learned counsel Sri Chandra Mohan would submit that Narasimha Murthy-owner had no alternative except to prefer cross objection in MFA Crob No.122/2016.
10. Defence by the insurance company to the effect that at the time of accident owner of the offending vehicle Narasimha Murthy was driving is concerned, learned counsel Sri Chandra Mohan would submit that he has obtained a policy that is enforceable from all angles and there is no violation of the policy terms and conditions and that the insurer is trying to put up a false defence in order to escape from the liability to pay compensation. He would submit that Narasimha Murthy, the owner of the vehicle was never driving the offending Autorickshaw on the date of the accident.
11. Insofar as the insurer is concerned learned counsel Sri Pradeep would submit that the company had appointed an investigator for conducting private investigation and to report veracity of the claim. Accordingly report is given as per Exhibit R-2 and it is stated that Krishnamurthy or alleged Narasimhamurthy was the person who was driving Autorickshaw at the time of accident. Thus, in the light of owner causing accident contributed his negligence. In this connection all the steps taken by the insurance company stops at getting the report and it appears that for nothing it is continued or no independent or corroborative evidence or document is produced. Thus, the ground or allegation that there has been change of the name of the driver from the name of the owner to the name of the person – Manjunath. Thus, in my considered but firm view the accident falls within the ambit of road traffic accident that occurred on 23.05.2011 at 7 P.M. near H Cross because of which claimant suffered injuries and that insurance company in this case is liable to make good the compensation.
12. Insofar as loss of future income is concerned it is to be seen that monthly income of the claimant is considered at Rs.6,000/- and date of accident is 23.05.2011. The Tribunal has considered the disability at 46% as against the opinion of doctor at 40%. Monthly income considered at Rs.6,000/-, future prospects 50%, multiplier considered `17’ and calculation is as under:
Rs.6,000+50% future prospects -3,000 Rs.9,000x12x17x46/100 =Rs.8,44,560/-
13. A Member of MACT has responsibility to ensure that claim for compensation under the Motor Vehicles Act has to be carefully adjudicated keeping objects of the Act without forgetting it is a social legislation. However, there is reasonability in every principle that is applied while adjudicating a claim petition. It is seen that insofar as two types of claim petitions preferred by claimants either as the insurer, claimant or dependants of deceased are in respect of the injuries to a person because of the accident. The concept of future prospects excels as the hall mark of social legislation but it has been upheld and stated loud and clear that it is applied in case of accident where the claim petition is in respect of death of the victim of the accident and the dependants are left in lurch. In the circumstances from the yardstick which are provided for the purpose of calculating the future prospects with reference to age of the victim and with reference to his earning to assess the reasonable expectancy of life. In case of injuries, loss of future income is calculated on the basis of disability and its extent in respect of a particular organ or a limb and whole body. But it is surprising to note that in a case of injury Tribunal has adjudicated without applying mind. Concept of future prospects for the present case is strictly out of bounce.
14. In the circumstances, considering income of Rs.6,000/- learned counsel for claimant submits that it should have been Rs.6,500/-. In the facts and circumstances the claim of Rs.6,500/- is not acceptable. It is just and reasonable to maintain at Rs.6,000/-. Thus, the calculation of compensation towards loss of future income is as under:
Rs.6,000-46% disability =Rs.2,760x12 = Rs.33,120 Rs.33,120x17 = Rs.5,63,040/-.
15. Thus, it is the amount of miscalculation by learned Member in applying the formula of adding future prospects in an injury case has made the Judgment erroneous. Thus, total compensation that is fair and just compensation would be `Loss of future income’ Rs.5,63,040/- and other conventional heads are entitled to be maintained.
16. The object of preferring the claim petition is not the platform making fortune out of misfortune.
17. Thus, appeal filed by the insurance company has justification in seeking for reduction of compensation. Accordingly an amount of Rs.2,81,520/- (Rs.8,44,560- Rs.5,63,040) is reduced. Insurance company is directed to pay the balance compensation amount.
Hence, the following:
ORDER 1. MFA No.8519/2015 is rejected.
2. MFA No.1417/2015 is partly allowed.
3. Judgment and award dated:17.11.2014 passed in MVC No.5301/2011 by the Additional Judge, Court of Small Causes, MACT, Bengaluru, is modified by reducing the compensation of Rs.2,81,520/-.
4. MFA Crob No.122/2016 stands disposed of.
5. Balance compensation amount payable by insurance company to be deposited within four weeks from the date of receipt of certified copy of this order.
6. Amount in deposit to be transferred to Tribunal.
Sd/- JUDGE SBN