IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO MISCELLANEOUS FIRST APPEAL No.822/2016 C/W MISCELLANEOUS FIRST APPEAL No.11/2016 AND MISCELLANEOUS FIRST APPEAL No.821/2016(MV) IN M.F.A. NO.822/2016 BETWEEN:
G.M.UMESH, S/O MUDDALINGEGOWDA, AGED ABOUT 41 YEARS, R/O YELIUR VILLAGE, KOTHATHI HOBLI, MANDYA – TQ & DISTRICT – 571 401. ... APPELLANT (BY SRI RAJA L, ADVOCATE) AND:
1. M/S. ACCENTURE SERVICE PRIVATE LTD., LPIL, A-153347, MR.ASHOKA RADHAKRISHNAN, IBC, KNOWLEDGE, PARK, CORPORATION, NO-4/1, BANNER GHATTA ROAD, BENGALURU – 29.
2. THE AUTHORISED SIGNATORY, ROYAL SUNDARAM ALLIANZ INSURANCE CO. LTD., RAGHAVENDRA COMPLEX, GROUND FLOOR, 1ST CROSS, HOSUR MAIN ROAD, WILSON GARDEN, BENGALURU – 27. ... RESPONDENTS (BY SRI O.MAHESH, ADVOCATE FOR R2; NOTICE TO R1 IS DISPENSED WITH VIDE ORDER DATED 07.03.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.09.2015 PASSED IN MVC NO.1864/2012 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION TOWARDS DAMAGES AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO.11/2016 BETWEEN:
THE CLAIM MANAGER, ROYAL SUNDARAM ALLIANZ INSURANCE COMPNAY LIMITED, RAGHAVENDRA COMPLEX, GROUND FLOOR, 1ST CROSS, HOSUR MAIN ROAD, WILSON GARDEN, BENGALURU – 27.
BY ROYAL SUNDARAM ALLIANCE COMPANY LTD., SUBRAMANIAM BUILDING, II FLOOR, NO.1, CLUB HOUSE ROAD, ANNSASALAI, CHENNAI – 600 002.
BY IT’S MANAGER ... APPELLANT (BY SRI O MAHESH, ADVOCATE) AND:
1. NANDISH G.B AGE 25 YEARS, S/O BOREGOWDA, R/O INDUVALU VILLAGE, KOTHATHI HOBLI, MANDYA TALUK AND DISTRICT – 571 401.
2. M/S. ACCENTURE SERVICES PRIVATE LIMITED, LPIL, A-153347, MR.ASHOKA RADHAKRISHNAN, IBC, KNOWLEDGE, PARK, CORPORATION, NO-4/1, BANNERGHATTA ROAD, BENGALURU – 560 029. ... RESPONDENTS (BY SRI L RAJA, ADVOCATE FOR R-1, NOTICE TO R-2 IS HELD SUFFICIENT VIDE ORDER DATED:16.3.2018) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.09.2015 PASSED IN MVC NO.1814/2012 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, MANDYA, AWARDING THE COMPENSATION OF RS.14,78,300/- WITH INTEREST AT 9% P.A.FROM THE DATE OF PETITION TILL THE DATE DEPOSIT AND TO MODIFY THE SAME.
IN M.F.A. NO.821/2016 BETWEEN:
NANDISH G.B S/O BOREGOWDA, AGE ABOUT 25 YEARS, R/O INDAVALU VILLAGE, KOTHATHI HOBLI, MANDYA TALUK AND DISTRICT. ... APPELLANT (BY SRI RAJA L, ADVOCATE) AND:
1. M/S. ACCENTURE SERVICE PRIVATE LTD, LPIL, A-153347, MR. ASHOKA RADHAKRISHNAN, IBC, KNOWLEDGE, PARK, CORPORATION, NO-4/1, BANNERGHATTA ROAD, BENGALURU – 560 029.
2. THE AUTHORISED SIGNATORY, ROYAL SUNDARAM ALLIANZ INSURANCE COMPNAY LIMITED, RAGHAVENDRA COMPLEX, GROUND FLOOR, 1ST CROSS, HOSUR MAIN ROAD, WILSON GARDEN, BENGALURU – 27. ... RESPONDENTS (BY SRI. M.H.HIDAYATHULLA, ADVOCATE FOR R1; SRI. O.MAHESH, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.09.2015 PASSED IN MVC NO.1814/2012 ON THE FILE OF THE 2ND ADDITIONAL SENIOR CIVIL JUDGE & ADDITIONAL MACT, MANDYA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION ON THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though these matters are listed for admission, with the consent of learned Advocates appearing for the parties, they are taken up for final disposal.
2. MFA Nos.822/2016 and 821/2016 are filed by the appellants/ claimants to modify the impugned judgment and award dated 28.09.2015 passed in MVC Nos.1864/2012 and 1814/2012 on the file of the II Additional Senior Civil Judge and Additional MACT, Mandya (hereinafter referred to as ‘Tribunal’ for short) by enhancing the compensation.
3. MFA No.11/2016 is filed by the Insurance Company for setting aside the impugned judgment and award dated 28.09.2015 passed in MVC No.1814/2012 on the file of the II Additional Senior Civil Judge and Additional MACT, Mandya.
4. The parties are addressed in accordance with their rankings before the Tribunal.
5. The brief facts of the case are:-
The proceedings before the Tribunal were initiated because of a road traffic accident that occurred on 05.08.2012. After filling fuel at Indian Petrol bunk near Yeliur kodi on Mandya-Mysore road, the claimant-Nandish in MVC No.1814/12 while he was riding the motor cycle bearing registration No.KA-11-V-7307 belonging to the claimant – G.M.Umesh in MVC No.1864/2012 along with one Sanjay Kumar as pillion rider towards Mandya side after taking ‘U’ turn carefully by giving signal and observing road rules and regulations, when they were proceeding towards Mandya side, at about 2.15 p.m. one car bearing No.KA-51/Z/-3976 being driven by its driver in a rash and negligent manner with a high speed from Mysore side towards Mandya side in a zig- zag manner dashed to the hind portion of the claimant’s motorcycle and caused the accident. Due to said accident, the rider and pillion rider of the motorcycle fell down and sustained grievous injuries and the pillion rider of the motorcycle succumbed to the injuries. The rider of the motorcycle survived with serious injuries. In this connection the claimant in MVC No.1814/2012 has sought for compensation for the injuries sustained by him in the road traffic accident. One G.M.Umesh, who is said to be the owner of the motorcycle filed MVC No.1864/2012 for recovery of damages caused to the motorcycle. Insofar as Sanjay Kumar is concerned, he was the pillion rider and the dependants said to have squared up the matter in a compromise.
The Insurance Company opposed the claim of the claimants in MVC Nos. 1814/2012 and 1864/2012 for compensation and also for damages in respect of the vehicle.
6. In order to prove their case, the claimants have examined themselves as PWs-1 and 2, one witness was examined as PW-3 and through Court Commissioner two witnesses were examined as CWs-1 and 2 and got marked documents as Exs-P1 to P25. The documents marked on behalf of Court Commissioner as Exs-C1 to C7. The respondent have not examined any witness nor marked any documents on their behalf.
7. The Learned Member disposed of MVC Nos.1814/2012 and 1864/2012, considering the accident, injuries, disability suffered by the rider – Nandish and the damage caused to the motor cycle and awarded the compensation of Rs.----- with interest at 6%---… 8. Incidentally, the claimant in MVC No.1814/2012 preferred appeal MFA No.821/2016 seeking for enhancement of compensation. Thus, insofar as MVC No.1814/2012 is concerned, there are two appeals one by the Insurer in MFA No.821/2016 and MFA No.11/2016 filed by the Insurance Company for setting aside the judgment and award passed in MVC No.1814/2012. So also, claimant in MVC No.1864/2012 preferred appeal in MFA No.822/2016 seeking r enhancement of compensation towards damages.
Learned counsel for the Insurance Company contended that consideration of monthly income by the Tribunal of the claimant-Nandish in MVC No.1814/2012 is too high and unreasonable disability is blown out of proportion and the compensation is unreasonably high in respect of other heads, the granting of compensation in respect of the damage of vehicle is unreasonably high.
9. The quantum of compensation awarded by the Tribunal in MVC No.1814/2012 is as under:-
SL.No. Particulars Amount (in Rs.) 1. Towards pain and sufferings 75,000 2. Towards medical expenses 3,26,300 3. Towards attendant, conveyance, nourishment and towards other incidental expenses 4. Towards loss of income during 30,000 25,000
10. The claimant in MVC No.1814/2012 has underwent surgery. The details given by the Tribunal are as under:-
“The evidence of CW.2 is looked into, he is found to be Orthopadic Surgeon working in Apollo B.G.S. Hospital, Mysore, who in his evidence stated that , the petitioner was admitted to said hospital in the history of the road traffic accident on 05.08.2012 having pain and swelling over the left shoulder and restriction of movements, pain and swelling over left lower limb and diffuse axonal injury. The petitioner was admitted as inpatient. X-ray of the left clavicle, left leg were taken, they showed that, the petitioner had sustained fracture left fibula of head and left clavicle and said injuries are grievous sin nature. On 07.08.2012, the petitioner underwent surgery and ORIF plate and screw applied on the left clavicle was done under SA and he was discharge on 14.08.2012. It is further evidence of the CW.2 that, surgery for left medical malleouls and screw was applied and discharge on 19.09.2012 as per the record with advise of follow up treatment and regular physiotherapy. It is further evidence of the doctor that, the petitioner has taken follow up treatment on several occasions and he had examined the petitioner clinically on 25.01.2015 and found 30% permanent partial disability”.
11. The Doctor has assessed the disability suffered by the claimant-Nandish as under:-
“The level of I.Q. of the claimant-Nandish is assessed at 82%. He has suffered minimal hearing loss and left mild moderate severe neural hearing loss and lips deviated to right side slow and sluggish tongue movements. It is also stated that he had permanent hearing loss to the extent of 10%, intellectual disability to the extent of 25%, imbalance in gait (ataxia mild) is permanent disability to the extent of 25% and in all 60%.”
12. In this connection, learned counsel for the Insurance Company submit that the disability calculated by the learned Member is on the higher side when the permanent disability itself is 25%, the Member could not have taken 60% permanent physical disability.
13. Normally 1/3rd of the limb disability is considered as total disability on the body, unless the disability is of extraordinary in nature. This amount of disability may hold good for fracture and other injuries and may not remain same for loss of sight or hearing. Further the disability of 60% to the whole body is proper because the head, mind and that the capacity of a person compatibility are all higher value than that of a limb or other organs. Hence, permanent physical disability assessed by the Doctor at 60% is just and proper. Therefore, I do not accept the submission made by learned counsel for the Insurance Company.
14. Insofar as the calculation of loss of future earnings of the claimant-Nandish by the Tribunal is concerned, claimant is a labourer and agriculturist by profession and claimed his income at Rs.11,000/- per month. The learned Member has considered it as Rs.5,000/- per month. The learned Member has committed an error in taking the monthly income of the claimant-Nandish at Rs.5,000/-and by adding 50% to the same as future prospects. Hence, I do not find logical manner in taking the above monthly income.
15. Thus, I find that the monthly income of the claimant at Rs.5,000/- taken by the Tribunal is on the lower side, and it is just and reasonable to assess the income of the claimant – Nandish at Rs.6,000/- per month. Adding future prospectus towards the monthly income is nothing but an error committed by the learned Member. Hence, taking the income of the claimant at Rs.6,000/- per month, with permanent physical disability at 60% and applying ‘18’ multiplier as the claimant was aged about 22 years at the time of accident, the claimant is entitled for Rs.7,77,600/-
(Rs.6,000x12x18x60/100) towards ‘loss of future earnings’.
16. The compensation awarded under the head ‘attendant, conveyance, nourishment and towards other incidental expenses’ is on the lower side. Hence, a sum of Rs.40,000/- is awarded as against Rs.30,000/- under the said head.
17. The compensation awarded under the heads physical dis-comfort, inconvenience, frustration affecting future amenities in the life deserves to be increased to Rs.40,000/- from Rs.25,000/-. Towards future medical expenses, a sum of Rs.30,000/- is awarded as against Rs.25,000/-.
18. A sum of Rs.30,000/- is awarded under the head ‘loss of amenities’. The compensation awarded by the Tribunal under the heads ‘pain and suffering’, ‘medical expenses, loss of income during treatment and rest is just and proper and the same does not call for interference by this Court.
19. In all the claimant- Nandish is entitled for modified compensation of Rs.13,43,900/-, as under:
SL.No. Particulars Amount (in Rs.) 1. Towards pain and sufferings 75,000 2. Towards medical expenses 3,26,300 3. Towards attendant, conveyance, nourishment and towards other incidental expenses 4. Towards loss of income during 40,000 25,000
20. For the foregoing reasons, the instant appeal filed by the claimant in MFA No.821/2016 (MVC No.1814/2012) is allowed in part.
21. The impugned judgment and award dated 28.9.2015 passed in MVC No.1814/2012 on the file of the II Additional Senior Civil Judge & Additional MACT, Mandya, is hereby modified by awarding a total compensation of Rs.13,43,900/- with interest at 6% p.a. from the date of petition till its realization as against Rs.14,78,300/- awarded by the Tribunal. There will be a reduction of compensation by Rs.1,34,400/-.
22. Insofar as the appeal in MFA No.11/2016 filed by the Insurance Company is concerned, the same in MVC No.1814/2012 is partly allowed as the compensation granted by the Tribunal is reduced from Rs.14,78,300/- to Rs.13,34,400/-.
23. Insofar as the appeal in MFA No.822/2016 is concerned, the owner of the vehicle claimed compensation of Rs.73,571/- with regard to the damages caused to the motorcycle. The learned Member assessed the damages caused to motorcycle and awarded global compensation of Rs.25,000/- and the Insurance Company was ordered to pay the said amount to the said owner as against the bill of Rs.25,000/-, which is just and proper and there are no grounds enhance the same. Nor I find any error in the global compensation awarded by the Tribunal. Hence MFA No.822/2016 is rejected.
24. The Insurance Company is directed to deposit the remaining amount of compensation in MFA No.821/2016 and 822/2016 after deducting the amount already deposited by them.
The amount in deposit shall be transmitted to the jurisdictional tribunal forthwith.
VMB Sd/- JUDGE