IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.3605 OF 2014 (MV-I) C/W MFA NO.4695 OF 2014 (MV-I) IN MFA NO.3605/2014 BETWEEN:
NATIONAL INSURANCE CO LTD REGIONAL OFFICE NO.144, SUBHARAM COMPLEX MG ROAD, BANGALORE-560001 REP BY ITS ASST. MANAGER SRI.R.LAKSHMANA RAO (BY SRI.B.C.SEETHARAMA RAO, ADVOCATE) AND:
1. MR. RANJITH SINGH RAJ PUROHITH @ RANJEETH SINGH, S/O CHHOGA LAL, AGED ABOUT 26 YEARS RESIDING AT NO.7, 8TH CROSS A.D.HALLI, MAGADI ROAD BANGALORE-560079.
...APPELLANT 2. M/S SAFE SPEED CARRIER LTD NO.202-203, ASHISH COMPLEX-3, SURAJHAL VIHAR, NEW DELHI-110 092 (OWNER OF LORRY NO. HR-55-K-3125) …RESPONDENTS (BY SRI.D.S.SRIDHAR, ADVOCATE FOR R1; SRI.H.K.SINGH, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.01.2014 PASSED IN MVC NO.6064/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE & MEMBER, MACT, BANGALORE, AWARDING COMPENSATION OF RS.37,97,000/- WITH INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO.4695/2014 BETWEEN:
SRI. RANJITH SINGH RAJ PUROHITH @ RANJEETH SINGH S/O CHHOGA LAL NOW AGED ABOUT 27 YEARS R/A NO.7, 8TH CROSS A.D.HALLI (AGRAHARA DASARAHALLI) MAGADI ROAD BANGALORE-560079 (BY SRI.D.S.SRIDHAR, ADVOCATE) AND:
1. NATIONAL INSURANCE CO.LTD NO.144, SHUBARAM COMPLEX M.G.ROAD BANGALORE-560001 REP BY ITS MANAGER ...APPELLANT 2. M/S SAFE SPEED CARRIER (PRIVATE) LTD., NO.202-203, ASHISH COMPLEX-3 SURAJHAL VIHAR NEW DELHI-110092 BY ITS MANAGING DIRECTOR …RESPONDENTS (BY SRI.B.C.SEETHARAMA RAO, ADVOCATE FOR R1; SRI.H.K.SINGH, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:13.01.2013 PASSED IN MVC NO.6064/2012 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE & MEMBER MACT, (SCCH-15), BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT The National Insurance Company assailing the correctness of the judgment and award dated 13.01.2014 in MVC.No.6064/2012 on the file of the Motor Accident Claims Tribunal, Bengaluru, has preferred appeal in MFA.No.3605/2014 questioning the quantum determined by the Tribunal. The claimant has preferred appeal in MFA.No.4695/2014 seeking enhancement of compensation.
2. The brief facts leading to the case are as under:
The claimant filed claim petition in MVC.No.6064/2012 on account of the injuries sustained in a road traffic accident dated 29.08.2012. The case of the claimant before the Tribunal is that on 29.08.2012 at about 7.10 a.m., he was crossing the road at Shivanahalli Junction, West of Chord Road, Rajajinagar, Bengaluru, by observing all the traffic norms. At that juncture, the driver of the offending lorry bearing Reg.No.HR-55-K-3125 came from the southern side in a rash and negligent manner and dashed against the claimant. Due to the impact, the claimant fell down and the front wheel of the lorry ran over his legs and stomach. It is also the case of the claimant that he underwent in all seven surgeries and has spent huge amount towards medical expenses.
Hence, filed claim petition claiming compensation of Rs.50,00,000/-.
3. The National Insurance Company on receipt of notice, filed statement of objections and admitted issuance of policy in favour of offending lorry involved in the accident. A specific contention was taken by the Insurance Company that the driver of the offending lorry was not holding valid and effective driving licence to drive the lorry as on the date of the accident and on this count, the Insurance Company contended that there is violation of policy conditions and as such, is not liable to pay compensation. A further contention was also raised by the Insurance Company that it is the claimant who was solely responsible for the accident and was grossly negligent while crossing the road without observing the vehicles and hence, prayed to dismiss the petition.
4. Based on the rival contentions, the Tribunal formulated the following issues:
“1. Whether petitioner proves that he sustained injury in RTA arising out of accident alleged to have been taken place on 29.08.2012 at about 7.10 am, Shivanahalli Junction, west of chord road, Bangalore due to the rash and negligent driving of the lorry bearing No.HR-55 K-3125?
2. Whether respondent No.1 proves that the driver of lorry in question was not holding valid DL as on the date of the accident?
3. Whether petitioner is entitled for compensation? If so, what amount and from whom?
4. What order or award?”
5. The claimant in support of his contention, examined himself as PW.1 and in support of the multiple injuries suffered by him, examined three Doctors as PWs.2, 3 and 4. The claimant also examined PW.5, who was working as a Finance Executive in the company, wherein the claimant was employed. PW.2 –Orthopedic Surgeon deposed before the Tribunal that he has examined the claimant on 09.07.2012 and on clinical examination, he found claimant is having permanent physical disability to the right lower limb at 35% and further he assessed the same to the whole body at 12%. PW.3 – Doctor who is working as a General Surgeon at Bowring and Lady Curzon Hospital, Bangalore has deposed before the Tribunal that he has examined the claimant on 29.08.2012. He has deposed before the Tribunal that on examining the claimant, he found that claimant has suffered lacerated wound in perineal region extending from below sarotum to anal region bleeding and contamination present, open perineal wound 7 x 8 cm, uretra had been transected at bulbomebranous junction, anus with rectum avulsed, sever tenderness pelvic left region and right thigh and right leg, fracture of shaft of right femur, fracture upper shaft of right fibula, fracture of left public bone.
6. PW.3 has opined that claimant is having permanent physical residual disability of 30% to the whole body. The claimant through this medical witness has produced Out patient chit at Ex.P-18, Ultra sound report at Ex.P-19 and X-ray film with report at Ex.P-20. PW.4 – Doctor has deposed before the Tribunal and on oath has stated that claimant was admitted at Manipal Hospital on 16.10.2012 and he was treated there and was discharged on 23.10.2012. He has further deposed that he was again admitted to Manipal Hospital on 07.11.2012 and claimant had to undergo recurrent stricture urethra, post tramatic treated surgically on urethroplaty under S.A. since claimant was suffering from poor flow of urine and severe dysuria and after treatment was discharged on 30.11.2012. It is also stated in his affidavit evidence that claimant has undergone surgery twice in Panacea Hospital, five times in Manipal Hospital. In all, totally seven surgeries were conducted on the claimant. The claimant has also furnished medical bills. The Tribunal having examined the oral evidence of the claimant and the medical witnesses and having examined the documentary evidence has proceeded to award a sum of Rs.37,97,200/- with interest at the rate of 8% p.a. from the date of petition till the date of realization.
7. Learned counsel appearing for the Insurance Company assailing the correctness of the judgment and award of the Tribunal would vehemently argue and contend that the compensation of Rs.4,75,200/- awarded under the head ‘loss of future income’ is erroneous and the same is contrary to the evidence on record which indicates that claimant can perform his duties as Software Engineer with the existing disability and hence, would contend before us that the award of Rs.4,75,000/- towards ‘loss of future income’ requires interference by this Court. He would also argue that the Tribunal erred in awarding Rs.9,50,000/- towards medical expenses. Marshalling his arguments, he would also bring to our notice that the Tribunal has erred in awarding Rs.9,72,000/- under the head ‘permanent attendant charges’ and to buttress his arguments, he would argue before us that this claim is not at all supported by any medical evidence. He would further contend that the Tribunal having awarded Rs.2,00,000/- under the head ‘loss of amenities’, was not justified in further awarding a sum of Rs.3,00,000/- towards ‘disability’ and this amounts to duplication of heads and hence, would call for interference by this Court. He would also bring to our notice that the Tribunal erred in awarding interest at the rate of 8% per annum.
8. Per contra, learned counsel appearing for the claimant would contend before us that the compensation determined by the Tribunal is inadequate and is very much on the lower side and the same is contrary to the clinching evidence on record and hence, would seek enhancement by urging various grounds before us.
9. Heard learned counsel on both sides and perused the records.
10. On perusal of medical evidence of PW.2, it is evident that the claimant has suffered the following injuries:
1. Comminated spriral fracture of right femur.
2. Perineal trauma with rapture urethra.
3. Degloving injuy of perineum with avalusion of urethrl and rectum from perineum.
11. The evidence of PW.2 clearly indicates that he was treated for the aforesaid injuries with Intramedullary nail and tension band wiring for right femur, laprotomy and sigmoid colostomy with reconstruction of pelvic floor and re-implantation of rectum and canal and open supra pubic catheter and urethra repair.
12. On perusal of evidence of PW.3, who is a General Surgeon, it is evident that he has undergone the following surgeries:
1. Laporatomy and procedure sigmoid colostomy and reconstruction of pelvic floor and reimplantation of rectum and anal canal. Open SPC and urethra repair.
2. Conservative managements.
3. Urethroplasty was done after excision of scar tissue.
4. Eschrectomy major and plastic reconstructive surgery-cat-D-done.
13. PW.2 - Orthopedic Surgeon has opined that he has got 35% disability to the right lower limb and the same is assessed to the whole body at 12%. PW.3, who is a General Surgeon has opined that he is suffering from permanent physical residual disability of about 30% to the whole body. The medical evidence on record clearly indicates that he has undergone seven surgeries.
14. In that view of the matter, we are of the view that the claimant is entitled for a compensation of Rs.3,00,000/- towards ‘pain and sufferings’. Taking note of the length of treatment undergone by the claimant at various Hospitals and also the number of surgeries that were conducted on the claimant on account of multiple grievous injuries, we deem it fit to award a sum of Rs.1,50,000/- towards ‘loss of income during treatment’. We also deem it fit to award a sum of Rs.1,00,000/- towards ‘attendant charges and conveyance’.
15. We find some force in the submission made by the learned counsel appearing for the Insurance Company insofar as the compensation determined under the head ‘medical expenses’ is concerned. On recalculation, we deem it fit to award a sum of Rs.9,15,000/- towards ‘medical expenses’. The Tribunal has not at all assigned any reasons for awarding Rs.3,00,000/- towards future medical expenses. Though claimant has contended that he needs future medical expenses, no material is placed before the Tribunal. However, having regard to the gravity of injuries suffered by the claimant, we deem it fit to award a sum of Rs.1,00,000/- towards future medical expenses.
16. The contention of learned counsel for the Insurance Company that the appellant is not entitled for compensation towards ‘loss of future income’ is not at all tenable. The clinching medical evidence on record indicates that claimant has suffered 30% permanent physical residual disability to the whole body and 12% disability to the whole body on account of 35% disability to the right lower limb. In this background, if the disability is taken into consideration, the contention of the learned counsel for the Insurance Company that the disability suffered by the claimant would not affect his earning capacity cannot be accepted. This Court has to take into consideration the nature of injuries suffered by the claimant who was hardly aged 25 years. On account of disability, the claimant has to carry permanent colostomy with bag in left abdominal region and the bag has to be replaced once in three days and has to regularly receive follow-up.
17. The medical evidence also indicates that he needs regular treatment since he is suffering from skin erosion and there is every possibility of he getting infected in his abdominal region (colostomy area). If all these factors are taken into note, we are of the view that the Tribunal grossly erred in taking the disability at 20%. This reasoning of the Tribunal is palpably erroneous. Having examined the oral and documentary evidence, we are of the view that the disability of the claimant is to be assessed at 40% to the whole body and hence, compensation payable under the head ‘loss of future earning’ would come to Rs.9,50,400/- (11,000x12x40%x18).
18. The award of Rs.9,72,000/- towards permanent attendant charges is erroneous and as rightly pointed out by the learned counsel for the Insurance Company the compensation determined under the said head is not sustainable and same warrants interference. The Tribunal has not at all assigned any reasons while awarding Rs.9,72,000/- towards permanent attendant charges. However, looking into the gravity of the injuries suffered and further future medical complications that would arise in all probability, as opined by PW.3, we are of the view that a sum of Rs.3,00,000/- is to be awarded towards permanent attendant charges, which would also cover loss of amenities.
19. On reassessment, the compensation determined by this Court is as under:
20. Accordingly, the appeal filed by the Insurance Company in MFA.No.3605/2014 is partly allowed. In the light of re-determination of compensation in MFA.No.3605/2014, the appeal filed by the claimant in MFA.No.4695/2014 does not survive for consideration and the same is disposed of.
Sd/- JUDGE Sd/- JUDGE CA