IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13th DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL M.F.A. No.9824/2013 (MV) BETWEEN :
M/s. ICICI Lombard General Insurance Company Ltd., Prestige Cronicle, No.62/1, 2nd Floor, Richmond Road, Bangalore-560 026.
… Appellant (By Sri H.N.Keshava Prashanth, Advocate) AND :
1. Shri Vineet Kumar M.G., S/o late T.M.S.Murthy Now aged about 24 years Residing at No.43, 3rd B-Cross, 2nd Stage, Sathyanarayana layout, J.C. Nagar, M.L. Pura, Bangalore-560 086.
2. Mr. Praveen Kumar S/o Sannamari Gowda R/at No.46, 5th Cross, Jai Maruthi Nagar, Nandini layout, Bangalore-560 096.
… Respondents (By Sri Umashankar, Advocate for R1;
R2-Notice dispensed with vide Order dated 29.10.2015) This MFA is filed under Section 173(1) of the MV Act against the judgment and award dated 17.08.2013 passed in MVC No.780/2012 in the file of VIII Additional Small Causes Judge and XXXIII ACMM, Member, MACT, Bangalore, awarding compensation of Rs.4,11,000/- with interest (Excluding on the future medical expenses of Rs.30,000/-) @ 8% P.A. from the date of petition till realization.
This MFA coming on for admission this day, the Court delivered the following:-
J U D G M E N T This appeal has been preferred by the Insurance Company assailing the judgment and award passed by the VIII Additional Small Causes Court and MACT (SCCH-5), Bengaluru in MVC.No.780/2012, dated 17.8.2013.
2. Though the matter is listed for admission, with the consent of both parties, it is heard finally.
3. Brief facts of the case are that on 16.12.2011 at about 9.45 a.m., when the claimant Vineethkumar was proceeding on his scooter bearing Regn.No.KA-02-EG- 7569 and when he came near ‘U’ turn Junction of Kurubarahalli Main Road, a Toyota Qualis car bearing Regn.No.KA-05-C-3107 came in a rash and negligent manner and dashed against the scooter, due to which, the claimant fell down and sustained grievous injuries. He was working as a Program Analyst at Cognizant, Bangalore and earning Rs.30,000/- per month. Because of the injuries, he had to take long leave and he also incurred huge expenses for medical and other incident charges as such he filed claim petition seeking compensation of Rs.10,00,000/-.
4. In pursuance of the notice issued by the Tribunal, the first respondent-Insurance Company entered appearance and filed its written statement contending that driver of the offending vehicle did not possess valid and effective driving license at the time of accident. However, they admitted that the insurance policy was in force and the liability on the Insurance Company is subject to the terms and conditions of the policy. On these grounds, they prayed for dismissal of the claim petition.
5. On the basis of the above pleadings, after framing necessary issues and after hearing the parties to the lis, the Tribunal has awarded total compensation of Rs.4,11,000/- with interest at 8% per annum from the date of petition till realization. As against the said award, the Insurance Company has filed the present appeal.
6. It is contended by the learned counsel for the appellant-Insurance Company that the compensation awarded by the Tribunal under various heads is on the higher side. Though there is no loss of future income to the claimant as he continued in the said job and in the absence of any documents to show that there is loss of future income, the compensation awarded under the said head is not sustainable in law. Though the claimant has admitted during the course of evidence that he has claimed Mediclaim insurance to the extent of Rs.80,590/-, the Tribunal has erroneously by including the future medical expenses has awarded an amount of Rs.1,24,000/- which is also not correct and justifiable. He has further contended that the claimant has also not produced any document to show that during laid up period there is loss of income. But the Tribunal has awarded Rs.72,000/- which is on the higher side. Though the Tribunal has rightly come to the conclusion that there is no loss of future earning capacity or loss of future income, it has graciously awarded the compensation towards permanent disability, loss of amenities, loss of longevity, discomfort, disappointment, etc. which is on the higher side. Hence, he has prayed for allowing the appeal by reducing the compensation awarded by the Tribunal and fixing the compensation which the claimant is legally entitled to.
7. Per contra, the learned counsel appearing for the claimant-respondent has vehemently argued and contended that the claimant has got examined the doctor and the doctor has assessed the disability to the extent of 13.25% and has issued the disability as per Ex.P15. Though the claimant has not furnished any documents to show loss of future income, any how the disability would affect his future service and as such, the compensation awarded by the Tribunal is just and proper. He has further contended that the mediclaim claimed by the claimant is the personal claim of the claimant and the premium has been paid by him to the said effect. On the basis of the same, the amount has been claimed, but not from the present insurer. Hence, the compensation awarded by the Tribunal is also just and reasonable. On these grounds, he has submitted that the Insurance Company has not made out any case to interfere with the impugned award and hence, prayed for dismissal of the appeal.
8. The occurrence of the accident in question, insurance of the offending vehicle with the appellant- Insurance Company is not in dispute. The only aspect which has been raised before this Court is that the quantum of compensation awarded by the Tribunal under the various heads is on the higher side. As could be seen from the impugned judgment and award, the Tribunal by taking into consideration the injuries sustained by the claimant has awarded an amount of Rs.40,000/- towards pain and suffering; Rs.1,24,000/- towards medical expenses; Rs.50,000/- towards food, diet, nourishment, transportation charges, attendant charges, etc; Rs.72,000/- towards loss of income during laid up period; Rs.1,25,000/- towards loss of amenities, disability and rest period.
9. As could be seen from the impugned judgment and award, it has been clearly discussed by the Tribunal that there is no loss of future income to the claimant and he is not entitled for compensation either under the head of loss of future income or future earning capacity. It clearly goes to show that the claimant has continued in the same job and there is no loss of income and the said observation of the Tribunal appears to be just and proper. But as could be seen from the evidence, it clearly indicates that the claimant has incurred medical expenses of Rs.93,526/- as per Ex.P12 and even the doctor who has examined has also opined that the claimant has to undergo another surgery for removal of implants and he has to incur an amount of Rs.40,000/-. But the Tribunal has ignored the fact that the claimant has taken the personal health care insurance from United Health Parekh TPA Private Limited and the said Insurance Company has paid a sum of Rs.87,590/-. When already the claimant has claimed an amount of Rs.87,590/- out of Rs.93,526/- from another Insurance Company, then under such circumstances, the said amount ought to have been deducted under the head of medical expenses and then thereafter whatever amount remained which has been incurred, ought to have been awarded.
10. In so far as the amount awarded under the head of loss of income during laid up period is concerned, though it has come in the evidence that the claimant was on leave from 4.1.2012 to 19.3.2012 on medical grounds, the Tribunal has awarded an amount of Rs.72,000/- under the said head. But the claimant has not produced any documents to show that during the said period there was no payment to him by his employer. In the absence of any such document, granting an amount of Rs.72,000/- towards loss of income during laid up period is not correct. But, however, it has been pleaded by the claimant that the said leave period is affected for surrender of leave in a year. As per Ex.P10, the claimant was getting a salary of Rs.23,946/- and in that light for two months, he is entitled to an amount of Rs.47,892/- under the head of loss of leave.
11. Even as could been seen from the impugned award, the compensation which has been awarded towards loss of amenities, disability and rest period appears to be on the higher side. No doubt the claimant is entitled for loss of amenities and disability. If an amount of Rs.60,000/- is awarded under the said head, it would meet the ends of justice.
12. The amount of compensation awarded by the Tribunal towards food, diet, nourishment, transportation charges, attendant charges etc. to the extent of Rs.50,000/- and Rs.40,000/- towards pain and suffering is left undisturbed.
13. On reassessing, the claimant is entitled to total compensation of Rs.2,35,482/- (Rupees two lakhs thirty- five thousand four hundred and eighty two only) with interest at 8% per annum.
Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent as indicated above.
The Insurance Company is directed to deposit the additional compensation amount with interest thereon within six weeks from the date of receipt of a copy of this order, before the Tribunal.
The statutory amount in deposit before this Court shall be transmitted to the tribunal.
Registry to draw the decree accordingly. LCRs be sent back to the Tribunal.
Sd/- JUDGE *ck/-