IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11th DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MR. JUSTICE ARAVIND KUMAR AND THE HON’BLE MR. JUSTICE K.NATARAJAN MISCELLANEOUS FIRST APPEAL No.6250 of 2013(MV) c/w MISCELLANEOUS FIRST APPEAL No.4955 of 2013(MV) IN MFA No.6250 of 2013(MV) BETWEEN MOHAN KUMAR M., S/O A.P. MAHADEVA, AGED ABOUT 26 YEARS, R/AT No.125, 2ND CROSS, 1ST MAIN, NANDINI LAYOUT, MYSORE – 570 001.
(BY SRI R. SRINIVASA GOWDA, ADVOCATE) AND 1. THE DIRECTOR, M/S. FERRO FOUNDRIES PVT. LTD., BELAWADI POST, YELAWALA ROAD, MYSORE, MYSORE DISTRICT – 571 186.
2. THE DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., No.371 A, 2ND FLOOR, PRESTIGE SHOPPING ARCADE, ... APPELLANT NEAR RAMASWAMY CIRCLE, MYSORE – 570 001.
(BY SRI CHAKRAVARTHY, ADVOCATE FOR ... RESPONDENTS SRI A.N. KRISHNA SWAMY, ADVOCATE FOR R-2 R1 –Notice held sufficient v/o dated 04.03.2014) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.03.2013 PASSED IN MVC No.400/2012 ON THE FILE OF THE PRESIDING OFFICER, C/c FAST TRACK COURT-3, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.4955 of 2013(MV) BETWEEN DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., #371 A, II FLOOR, PRESTIGE SHOPPING ARCADE, NEAR RAMASWAMY CIRCLE, MYSORE, NOW REPRESENTED BY, REGIONAL MANAGER, NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX, 144, M.G. ROAD, BANGALORE – 560 001.
(BY SRI CHAKRAVARTHY, ADVOCATE FOR SRI A.N. KRISHNA SWAMY, ADVOCATE) ... APPELLANT AND 1. MOHAN KUMAR M., S/O MAHADEVA A.P., NOW AGED ABOUT 26 YEARS, #125, II CROSS, I MAIN, NANDINI LAYOUT, MYSORE.
2. THE DIRECTOR, M/S. FERRO FOUNDRIES PVT. LTD., BELAWADI POST, YELAWALA ROAD, MYSORE, MYSORE DISTRICT.
3. K.R. VENKATESH, S/O RAMALINGAM, NOW AGED ABOUT 31 YEARS, #1352, II STAGE, SHRIRAMPURA, MYSORE.
4. DIVISIONAL MANAGER, BAJAJ ALLIANZ GEN INS. CO. LTD., #363, SHRIHARI COMPLEX, SEETHA VILAS ROAD, MYSORE.
... RESPONDENTS (BY SRI D. BOREGOWDA, ADVOCATE FOR R-1; SRI O. MAHESH, ADVOCATE FOR R-4;
R-2 AND R-3 ARE SERVED & UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.03.2013 PASSED IN MVC No.400/2012 ON THE FILE OF THE PRESIDING OFFICER, C/c FAST TRACK COURT-III, ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION OF Rs.21,04,600/- WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE MFAs COMING ON FOR HEARING THIS DAY, ARAVIND KUMAR, J., DELIVERED THE FOLLOWING:
JUDGMENT These two appeals arise out of a common judgment and award dated 20.03.2013 passed in MVC No.400/2012 by Additional Motor Accident Claims Tribunal, Mysuru.
2. We have heard the arguments of Sri R. Srinivasa Gowda, learned counsel appearing for claimant-appellant, Sri Chakravarthy, learned counsel appearing on behalf of A.N.Krishnaswamy, learned counsel appearing for insurer (National Insurance Co., Ltd.,) and Sri O.Mahesh, learned counsel appearing for insurer (Bajaj Allianz General Insurance Co. Ltd.,) and perused the records.
3. Parties are referred to as per their rank in the Tribunal.
4. A claim petition was filed under Section 166 of Motor Vehicles Act, 1989 seeking compensation of Rs.53,50,000/- contending, inter alia, that on 23.09.2011, at 11.15 a.m., petitioner-claimant was traveling to Mysuru from Bengaluru on his motorcycle bearing Regn. No.KA-
09/EM-6263, along with his friend Arun Kumar as pillion rider and near K. Shettyhalli Village, a Santro Car, moving ahead of petitioner’s motorcycle, was driven in a rash and negligent manner and without giving any signal, driver of the car applied brake by violating road traffic rules and regulations and in spite of best effort, petitioner could not avoid the accident and as such, dashed against the car and sustained injuries. Hence, sought for payment of compensation for the injuries sustained and consequential disability suffered. The insurer of both vehicles filed their written statements, denied the averments made in the petition except to the extent expressly admitted therein. On the basis of pleadings of parties, Tribunal framed issues. Claimant got himself examined as PW.1 and also examined two witnesses as PWs.2 and 3. He got marked, in all, 33 documents as per Exs.P.1 to P.33. On behalf of respondents, three witnesses were examined and six documents were marked as per Exs.R.1 to R.6. After considering the pleadings of parties and on evaluating entire evidence, Tribunal by impugned judgment and award allowed the claim petition in-part and awarded a sum of Rs.21,04,600/- as compensation with interest at 6% per annum from the date of petition till date of deposit by excluding interest for future medical expenses and loss of future earnings, under the following heads;
Pain and sufferings Rs.75,000/-
Medical expenses Rs.11,00,000/- Incidental expenses Rs.25,000/-
Loss of income during treatment and rest period Rs.72,000/-
Loss of future earning capacity Rs.7,77,600/-
Loss of amenities in future life Rs.25,000/-
Future medical expenses Rs.30,000/-
Total Rs.21,04,600/-
5. While apportioning liability, Tribunal has opined that claimant was also negligent in riding his motorcycle and as such, fixed the liability to an extent of 20% on the claimant and directed the insurer of the car viz, National Insurance Company to indemnify the claimant to an extent of 80%. Hence, these two appeals by the insurer of car challenging liability fixed on it in its entirety as well as claimant for enhancement.
6. Perusal of the judgment and award under challenge clearly indicates that insofar as apportionment of liability or the extent of liability being fastened on the claimant to an extent of 20% would not call for interference, inasmuch as accident in question has taken place on a State Highway and driver of the car is said to have applied brake so suddenly on account of noticing road humps and claimant who was behind the car driving his motorcycle on account of this situation claimant had dashed to car from back. In fact, claimant has deposed that in spite of his best efforts, he could not control the accident and due to sudden application of brake by the driver of car, he had dashed from hind side. The rider of motorcycle, while proceeding on a Highway, is expected to maintain a standard or reasonable distance as per Regulation 23 of Road Regulations. However, evidence on record would disclose that both the vehicles were moving on a Highway in a reasonably high speed and as such, drivers of both the vehicles were expected to maintain normal prudence as expected of such drivers. In the instant case, both the drivers admit that accident has occurred on account of the driver of car having applied the brake, due to speed breakers or humps found on the Highway. Thus, the driver of car was expected to notice the humps at a reasonable distance and issue warning to the vehicles coming from behind either by switching the parking lights or by hand signal. This is not having been done; it has resulted in the accident in question, as such, Tribunal has rightly held that, compensation has to be indemnified by the insurer of car which came to be fixed at 80%, which is a finding of fact based on sound appreciation of entire evidence and it does not call for interference by this Court.
7. Insofar as award of compensation under different heads, we find that Tribunal has awarded abysmally very less compensation. Medical records would disclose that claimant was initially on ventilator and in the ICU for 30 days and subsequently on account of septicemia having occurred, he was again shifted to ICU for more than 21 days. In all, he was in ICU for 51 days. He has undergone surgery more than once. Claimant has sustained fracture of distal radius and ulna with fracture of mandible. There was laceration of liver, stomach, spleen and also fracture of left 9th and 10th ribs with L-2 spine. Claimant has also undergone Tracheostomy and the disability certificate would disclose that claimant has sustained disability to the left lower limb to the extent of 79% and as such, Tribunal has construed whole body disability at 30%, which is in consonance with the formula prescribed in ALMINCO Manual. Hence, we do not propose to interfere with the findings of the Tribunal insofar as assessment of disability of claimant at 30%.
8. Having regard to nature of injuries as noticed by the Tribunal, we find that compensation awarded towards pain and suffering and incidental expenses are to be further enhanced by awarding additional compensation.
9. Insofar as ‘medical expenses’ are concerned, Tribunal has awarded a sum of Rs.11.00 lakh. Though bills came to be produced, some of the bills have been rejected on the ground that it does not contain seal and signature of the shop or the person who issued the same. We have perused the medical bills thoroughly and reduction of said bills by the Tribunal is on an erroneous ground. Computer generated bills would not contain either signature or seal of the shop and the very fact that VAT number is reflected in the said bill and tax having been collected would also prove its authenticity and correctness. At all times, patient cannot be expected to possess the prescription, particularly, if the patient is hospitalized and in such circumstance, prescription bill having been lost or the prescription having been retained by the Physician or the prescription being in the custody of hospital authorities cannot be ruled out. As such, Tribunal has committed a serious error in this regard and medical bills, which have been sought to be produced by the claimant deserves to be accepted and accordingly, we allow the claim made in that regard and an additional sum of Rs.48,094/- is hereby awarded.
10. Claimant was inpatient as noticed herein-above for more than two months. The ‘incidental expenses’ of Rs.25,000/- awarded by the Tribunal is marginally on the lower side and as such, taking into consideration that attendants would also have spent amount towards their food and transportation, additional sum of Rs.15,000/- is hereby awarded.
11. Though, claimant had produced salary certificate as per Ex.P.15 issued by Prime 5 Consulting Company certifying that claimant was a Software Analyst and was offered salary of Rs.25,000/- per month, Tribunal has not accepted the same on the ground that officer concerned has not been examined. However, M.Tech. Marks Card- Ex.P.7 and M.Tech. Degree Certificate-Ex.P.8 as well as B.E. Marks Cards and Degree Certificate at Exs.P.17 and P.18 would clearly disclose that petitioner had completed his B.E and had also completed his post graduation i.e., M.Tech. As such, his appointment as Software Analyst and drawing salary of Rs.25,000/- per month cannot be disbelieved or the certificate issued by the company in which claimant was working had to be discarded. In that view of the matter, we are of the considered view that Tribunal has committed a serious error in ignoring or rejecting the claim of petitioner-claimant for salary being construed at Rs.25,000/- per month. In light of income as claimed by the claimant at Rs.25,000/- is accepted, compensation computed by the Tribunal towards loss of income during laid-up period as well as loss of future income requires to be modified re-computing, which we have done herein-below.
12. Medical records would also disclose including the evidence of doctor that claimant has to walk with the aid of a walker; the fracture of left radius is mal-united and there is hetrotopic ossifications at the left hip by virtue of which, the lower limbs are immobile. It is on account of such disability suffered by claimant, Doctor has certified the disability to the limbs at 85%. As such, whole body disability is taken at 30% as already discussed herein- above. However, on account of these disabilities, claimant would be depending upon others throughout his life and all comforts in future are lost. Hence, he would be entitled to a reasonable and just compensation in that regard.
13. Tribunal, while awarding ‘future medical expenses’ has awarded a sum of Rs.30,000/- though Doctor has stated that for future surgery claimant will have to spend Rs.80,000/-. There being no contra evidence placed by the insurer, expert evidence could not have been discarded by the Tribunal. In that view of the matter, the amount certified by Doctor-PW.2 as per Ex.P.26 deserves to be granted, which we had proposed to do herein-below.
14. For the reasons afore-stated, claimant would be entitled to following additional compensation;
Pain and sufferings Rs.75,000/-
Medical expenses Rs.48,094/-
Incidental expenses Rs.15,000/-
Loss of income during treatment (Rs.25000x6=150000-72000=78000) Loss of future earning capacity Rs.25000x30%=7500x12x18=1620000 – 777600 =842400) Rs.78,000/- Rs.8,42,400/-
Loss of future amenities Rs.75,000/-
Future medical expenses Rs.50,000/-
Loss of marriage prospects Rs.25,000/-
Total Rs.12,08,494/-
15. Hence, we proceed to pass the following order;
(i) MFA No.6250/2013 is hereby allowed in-part.
(ii) MFA No.4955/2013 is dismissed.
(iii) The judgment and award passed by the Additional MACT, Mysuru, is hereby modified and in addition to what has been awarded, an additional sum of Rs.12,08,494/- is hereby awarded with interest at 6% per annum from the date of petition till date of deposit, except on ‘future medical expenses’.
(iv) We hereby affirm that respondent No.2 in MFA No.6250/2013 will indemnify the award to the extent of 80% of the award amount with interest within eight weeks from the date of receipt of copy of this order. Insurer shall deposit said amount excluding the amount already deposited.
(v) 50% of enhanced compensation with proportionate interest shall be released forthwith in favour of claimant and remaining 50% shall be kept in Fixed Deposit for a period of seven years and claimant would be entitled to draw periodical interest.
(vi) The amount in deposit in MFA No.4955/2013 is ordered to be transmitted to the jurisdictional Tribunal, forthwith.
SD/- JUDGE SD/- JUDGE mv