IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF MARCH 2019 BEFORE THE HON’BLE MR. L. NARAYANA SWAMY, ACTING CHIEF JUSTICE MISCELLANEOUS FIRST APPEAL NO.6491 OF 2011 (MV) BETWEEN:
IQBAL KHAN S/O LATE PYAREJAN AGED 25 YEARS RESIDENT OF BAZAAR STREET, HUNSUR TOWN & TALUK - 575 002 ...APPELLANT (BY SMT.SUMA KEDILAYA, ADV. FOR SRI.K RAVISHANKAR, ADV.) AND:
1. CHANDRA S/O RANGEGOWDA, AGED 36 YEARS DAVANI STREET, V.P. BORE, HUNSUR TOWN - 575 002 (DRIVER OF THE GOODS AUTORICKSHAW BEARING REGN.NO.KA-45-1245) 2. JAIULLA BASHA S/O AZEEZULLA BASHA AGED 38 YEARS NO.131, RAHMAT MOHALLA, BRIDGE, HUNSUR TOWN (OWNER OF THE GOODS AUTORICKSHAW BEARING REGN. NO.KA-45-1245) 3. BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD., 363, SEETHAVILAS ROAD, CHAMARAJA MOHALLA MYSORE – 24 ...RESPONDENTS (BY SRI.O.MAHESH, ADV. FOR R3;
NOTICE TO R1 & R2 ARE DISPENSED WITH V/O DTD:03.11.2011) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:07.03.2011 PASSED IN MVC NO.358/2008 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-V, MEMBER ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T On 7th March, 2008 at 9.00 pm at Dargah Road in front of Sericulture Market in Hunsur Town, while one Pyarejan along with his son Iqbal Khan-the pillion rider appellant herein, were proceeding on motor cycle bearing No.KA 09 Y 4036, the goods autorickshaw bearing registration No.KA 45 1245 driven in a rash and negligent manner came from opposite direction and dashed against the vehicle in which the appellant was travelling as pillion rider and caused accident. The impact is that the pillion rider suffered grievous injuries. Hence he made claim petition before Motor Accident Claims Tribunal, Mysore seeking compensation. The Tribunal, by its order dated 07th March 2011 passed in MVC No.358 of 2008 awarded compensation of Rs.7,49,000./- Against the same, this appeal is filed seeking enhancement in the compensation.
2. The ground taken by the counsel for the appellant is that the appellant was treated for about 140 days as an inpatient and he has got memory loss due to the accident. The Doctors PW.2 and 3 have been examined in support of the claimant for the purpose of disability and they have deposed that the injured has suffered 40% permanent disability and 21% disability to the whole body. The appellant has also sustained severe head injury fracture shaft of right femur; and fracture shaft of right tibia and communited fracture of right patella.
3. On the last occasion, this Court directed the appellant to check the disability and obtain fresh certificate from National Institute of Mental Health and Neuroseinces, Bangalore (for short hereinafter referred to as “the NIMHANS”) and he has been referred to the said Hospital. The Doctors who have examined the appellant have issued disability certificate that the appellant suffers disability to the extent of 90%. The learned counsel submits that the condition of the appellant is such that he has memory loss and is not leading life of a normal person. He should be under the care of an attendant throughout. Under these circumstances, the learned counsel submits that the disability be taken 100% and to enhance the compensation. She also submits that at the time of accident the appellant was pursuing First year LL.B., and because of the accident and injuries suffered in the accident he was forced to discontinue the studies. Hence, she submits that had the appellant pursued the studies, he would have become a proficient and would have earned income. Hence, she submits that the appellant is entitled for future prospects.
4. The learned counsel for the respondent-Insurer supports the order and submits that as per the direction issued the appellant was taken to NIMHANS. The Doctor has issued the disability certificate. Thereafter the parties were directed to appear before the Registry of this Court for the purpose of cross- examination of the Doctor or the patient. Despite the fact that the Insurer was present before the Registry neither the Advocate nor the patient had appeared. On the last occasion also the appellant was directed to appear before the Registrar (Computers), it is the submission of the learned counsel for the appellant that though she went to the Registrar, he was not available and hence the appellant was not subjected to cross- examination. Under the circumstance, the learned counsel submits that there is absolutely no cross-examination in order to assess the disability. Secondly, he submits that awarding compensation under the head future prospects came very recently, and the same cannot be made applicable to the case of the appellant. Hence, the learned counsel submits that the appellant is not entitled for future prospects.
5. Heard the learned counsel for the parties and gone through the lower court records made available. Accident and injury are not in dispute. The evidence of Doctors PW.2 and 3 shows that because of the accident, the injured has suffered 40% disability. When the appellant was referred to NIMHANS to obtain fresh disability Certificate, the Doctors at NIMHANS have assessed and have certified that the appellant has suffered 90% disability to the whole body. The Court, to satisfy itself, had summoned the appellant. The appellant has appeared before the Court. He was brought with the help of an attendant. After asking his name for three to four times, he answered his name in a feeble voice by looking somewhere. It appears that the appellant is in a shocked position and this shows that he has been rightly assessed and certified by the Doctors at NIMHANS that the appellant is suffering from 90% disability to the whole body. Considering the nature of injury and the condition of the appellant, as a special case, this Court is of the considered opinion that the disability is to be taken at 100% and accordingly the same is assessed. Though the case of the appellant cannot be considered for awarding future prospects, but the nature and condition of the appellant warrants that he has to be managed by others through his rest of life and hence, and for the same an attendant is required. Hence, some amount is to be awarded for the charges of an attendant also.
6. As regards the income is concerned, the Tribunal assessed the income at Rs.3,000/- per month. Since the accident is of the year 2008, the notional income that is to be taken is Rs.4,000/- per month and the same is taken for the purpose of awarding compensation under the head loss of future income. Accordingly, the calculation would be Rs.4,000/- x 12 x 18 which comes to Rs.8,64,000/- the same is awarded as against Rs.1,36,080/- awarded by the Tribunal. Considering the cost of living prevailing as on today and the fact that the appellant needs assistance of an attendant round the clock, an amount of Rs.4,000/- per month is to be taken towards attendant charges and considering the lifespan of the appellant by applying the same multiplier, an amount of Rs.8,64,000/- is awarded towards attendant charges. The amount awarded by the Tribunal under the head Medical expenses, conveyance, food and nourishment are retained. As regards the pain and suffering, considering the fact that the agony that is to be undergone by the appellant, an amount of Rs.1,00,000/- is awarded including the amount awarded by the Tribunal. As regards loss of amenities is concerned, the appellant has to be under the care of an attendant and cannot do any work on his own, I am inclined to enhance the amount to Rs.1,00,000/- under the said head. It is made clear, in view of the fact that the compensation under disability is awarded taking into consideration disability at 100%; as also the attendant charges is awarded for the lifespan of the appellant, it does not call for awarding any amount under the head future medical expenses and the loss of income during laid up period. Accordingly the compensation of Rs.30,000/- (Rs.15,000/- each under the head Future Medical Expenses and the loss of income during laid up period) are deleted from the total compensation. In total the compensation would be Rs.24,67,258/- as against Rs.7,49,000/- awarded by the Tribunal.
7. Out of the enhanced amount, 75% of the same is directed to be kept in the Fixed Deposit in any of the nationalised bank for a period of 20 years. The appellant is permitted to withdraw the periodical interest accrued on the deposit. The balance of 25% is directed to be credited directly to the account of the appellant.
In the result, appeal is allowed in part.
Sd/-
ACTING CHIEF JUSTICE lnn