IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF NOVEMBER, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MISCELLANEOUS FIRST APPEAL NO.4063 OF 2013 (MV) C/W.
MISCELLANEOUS FIRST APPEAL NO.3873/2013 (MV) M.F.A. NO.4063/2013 BETWEEN:
ORIENTAL INSURANCE COMPANY LIMITED, KRISHNA PRASAD BUILDING, III FLOOR, M.G. ROAD, LALBAGH, MANGALORE MANGALORE TALUK BY ITS REGIONAL OFFICE, ORIENTAL INSURANCE COMPANY LIMITED, NO.44/45, 4TH FLOOR, LEO SHOPPING COMPLEX, RESIDENCY ROAD, BANGALORE-560 025 REPRESENTED BY ITS DEPUTY MANAGER (BY SRI P.B. RAJU, ADVOCATE) … APPELLANT AND 1. MR. DHARMIK THAKKAR @ DHARMIC BHAGAVANDAS THAKKAR AGED ABOUT 31 YEARS, S/O. BHAGAVANDAS, R/AT B-57, BALESHWAR KRIPA PLAV INDIA COLONY, BOPAL, AHAMADABAD, GUJARATH 2. MR. CLIFFORD D’SOUZA, PROP: EXPORT TRADE LINK AGENCIES, PUNJA BUILDING, LALBHAGH, MANGALORE TALUK (EXPARTE) …RESPONDENTS (BY SRI G. RAVISHANKAR SHASTRY, ADVOCATE FOR R1; R2-NOTICE DISPENSED WITH) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.12.2012 PASSED IN MVC NO.1727/2011 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, MACT-6, MANGALORE, D.K. AWARDING A COMPENSATION OF RS.15,00,592/- WITH INTEREST AT 6% PA., FROM THE DATE OF PETITION TILL THE DATE OF ITS REALIZATION.
M.F.A. NO. 3873/2013 BETWEEN:
MR. DHARMIK THAKKAR @ DHARMIC BHAGAVANDAS THAKKAR AGED ABOUT 31 YEARS, S/O. BHAGAVANDAS, R/AT B-507, BALESHWAR KRIPA PLAV INDIA COLONY, BOPAL, AHAMADABAD, GUJARATH … APPELLANT (BY SRI G. RAVISHANKAR SHASTRY, ADVOCATE) AND 1. MR. CLIFFORD D’SOUZA, PROP: EXPORT TRADE LINK AGENCIES, PUNJA BUILDING, LALBHAGH, MANGALORE D.K. DISTRICT-575 001 2. ORIENTAL INSURANCE COMPANY LIMITED, KRISHNA PRASAD BUILDING, III FLOOR, M.G. ROAD, LALBAGH, MANGALORE MANGALORE TALUK-575 001 D.K., BY ITS BRANCH MANAER …RESPONDENTS (BY P.B. RAJU, ADVOCATE FOR R2;
R1-NOTICE DISPENSED WITH V/O. DATED 17.07.2015) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 31.12.2012, PASSED IN MVC NO.1727/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, MACT VI, MANGALORE, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMENSATION AND SEEKING FOR ENHANCEMENT OF COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA, J., DELIVERED THE FOLLOWING:
:J U D G M E N T:
The claimant and contesting second respondent Insurer in MVC No.1727/2011 on the file of Motor Accidents Claims Tribunal, Mangalore D.K., have come up in these two appeals.
a) The appeal in MFA No.3873/2013 is by the claimant before the Tribunal seeking enhancement of compensation awarded by the Tribunal.
b) The appeal in MFA No.4063/2013 is by the second respondent-Insurer before the Tribunal, challenging the quantum of compensation awarded by the Tribunal, particularly with reference to the compensation of Rs.6,50,592/- awarded under the head ‘disability’.
2. The brief facts leading to filing of these two appeals are as under:
The claimant before the Tribunal an young man aged about 29 years working as a Project Manager in a Private Company, met with an accident while supervising the project work within the campus of New Mangalore Dock Trust, resulting in multiple fractures to his left tibia and fibula also injury to his left knee and hip bone. The said injuries resulted in hospitalization for 68 days in A.J. Hospital, Mangalore and further treatment of 5 days in his home town at Ahamadabad. Thereafter, he filed claim petition before the Tribunal seeking compensation in a sum of Rs.50,00,000/- for the injuries sustained in the aforesaid accident, against the owner of the Crane which caused the accident and as well as Insurer of the Crane.
3. In the proceedings before the Tribunal, on service of notice, the first respondent remained exparte, however 2nd respondent entered appearance through counsel, filed statement of objections denying the accident as well as its liability on two counts. Firstly, the crane is not a motor vehicle and secondly, the accident which has taken place in the Dock yard is not a public place. Therefore, the claim petition seeking compensation is not maintainable.
4. On the basis of the pleadings the Tribunal framed issues and thereafter parties were called upon to adduce evidence. Claimant adduced evidence in support of his claim as PW1 and also adduced evidence through two other witnesses, namely; PW2 and PW3, first witness in PW2 is with reference to his avocation and second witness in PW3 is with reference to his injuries, who is the Doctor who treated him. He also got marked as many as 26 documents as Exs.P1 to P26. Per contra, the respondents adduced evidence by examining RW1 to RW4, they are the Driver of the crane which caused the accident as RW1, the Contractor whose work was being supervised by the claimant as RW2, RW3 is the witness of Insurer to demonstrate that the place where the accident took place is prohibited area, that for any accident which is caused in that area one cannot be entitled to claim compensation against the owner of vehicle/crane and another witness RW4 is also Insurer witness who has challenged the accident as contended by the claimant and the respondents also produced and marked three documents. The Tribunal, on appreciation of the material on record, proceeded to reject the defence raised by the respondents, denying the compensation and consequently allowed the claim petition awarding compensation in a sum of Rs.15,00,592/- payable with interest at 6% per annum from the date of petition till realization.
5. The claimant being aggrieved by the quantum of compensation, which is awarded towards pain and suffering, conveyance and attendant charges, towards future medical expenses and also for not considering the compensation payable for loss of amenities and loss of marriage prospects filed the appeal in MFA No.3873/2013 seeking enhancement of compensation under those counts.
6. So far as, second respondent-Insurer is concerned, the challenge by the second respondent is only with reference to the compensation awarded to the claimant under the head disability in granting Rs.6,50,592/- on the ground that the percentage of disability taken in respect of earning capacity is without basis and the alleged loss of earning capacity is neither supported by medical evidence or by evidence of employer or any other cogent documents which would demonstrate that the claimant has actually suffered such loss.
7. When these two appeals are at the stage of admission, the lower Court records are received and at the request of the learned counsel for both the parties, these two appeals are taken up for final disposal at the stage of admission itself.
8. Heard the learned counsel for the claimant as appellant and the learned counsel for the contesting second respondent in another appeal.
9. The contention urged by them is with reference to the findings by the Tribunal. On going through the said grounds, this Court on appreciation of the said grounds, would observe as under:
10. Coming to the appeal filed by the claimant, it is seen that the claimant who has suffered injuries as stated supra was admitted to A.J. Hospital for a period of 68 days. The records would indicate that he is native of Gujarath, his place of employment is Hyderabad and on project work he had come to Mangalore, where he met with accident and suffered injuries resulting in his hospitalization for 68 days. Therefore, he had to secure an attendant from his native place to attend to him and to stay with him for 68 days in a place far away from his native and by taking accommodation for the attendant and also spending money towards the nourishing food of the claimant as well as the day-to-day expenses of the attendant who was looking after him.
11. He has undergone physiotherapy for long time to regain his normal movement. In this behalf the pain and agony he has undergone for all these days is not taken into consideration and meager compensation of Rs.70,000/- is awarded. Hence, the same requires enhancement. Also there is a prayer with reference to the compensation awarded for future medical expenses at Rs.20,000/- as against the opinion of the Doctor that a sum of Rs.2,00,000/- is required. Besides all these, it is contended that the claimant aged about 29 years as on the date of accident was not yet married. Because of accident the same got delayed and the chances of his marriage also deminished. For that no compensation is awarded and also the compensation awarded for loss of amenities and marriage prospects is on lower side.
12. While discussing these contentions this Court would also take up the ground raised by the Insurer in the appeal filed by it with reference to the contention towards disability which is based on the evidence of PW3 who goes to the extent of stating that 2 cm shortening of left leg between knee and the ankle has caused 27% permanent disability, but it is not supported by any valid explanation. He would also state that the aforesaid injury has left such disability that claimant would not be able to do his work as he was doing earlier. In this regard, when the present statement of the claimant with reference to employment is seen, he is at present employed and drawing handsome salary. Therefore, loss of salary is a self serving statement and there is nothing on record to demonstrate that the salary drawn by him is reduced subsequent to accident. In view of the above the grounds urged in both these appeals requires to be considered. Therefore, what is required to be done is instead of looking at the compensation which is awarded by the Tribunal as seen in Para No.39 of the judgment the same is required to be re-assessed by this Court.
13. Accordingly, this Court would reassess the compensation payable to the claimant. Accordingly, a sum of Rs.1,00,000/- is awarded towards disability, Rs.1,00,000/- towards pain and sufferings, Rs.75,000/- towards conveyance, attendant charges and nourishment food by taking the expenses incurred at approximately a sum of Rs.1,000/- per day since the claimant had to secure a relative from his native place i.e. Ahamadabad to Mangalore, provide him accommodation for 68 days and also take care of his personal needs as well as that of the attendant. So far as Medical Expenses which is awarded by the Tribunal at Rs.7,25,000/- appears to be just and proper and the same is retained.
14. With reference to future medical expenses though the Doctor, PW3 has stated that another sum of Rs.2,00,000/- is required, it is optional because it is with reference to PW1 getting plastic surgery to the wounded region, even for that, the pleading and evidence of PW3 is not sufficient to claim an amount of Rs.2,00,000/- as required for plastic surgery. There is nothing on record to demonstrate that such an amount is required. In any event, considering the fact that the claimant is young man, aged about 29 years, yet to get married, if necessary he may have to undergo plastic surgery and also surgery to remove the shortening of 2 cm in left leg, for which Rs.50,000/- is considered. In addition to that, another sum of Rs.1,00,000/- is considered towards loss of amenities and marriage prospects.
15. In the meanwhile as discussed supra the finding of the Tribunal that the claimant has suffered loss of future earning capacity in awarding to a sum of Rs.6,50,592/- is without basis. Hence, the same is required to be set aside by allowing the appeal filed by the Insurer in challenging to the award.
16. With this re-assessment of the compensation payable to that the claimant, he is entitled to receive a sum of Rs.11,15,000/- as against Rs.15,00,595/- awarded by the Tribunal. Accordingly, the appeals, by the claimant and as well as the contesting second respondent before the Tribunal, are allowed in part.
17. It is made clear that the second respondent- Insurer to deposit the re-assessed compensation, with interest at 6% per annum, from the date of petition till the date of deposit of the entire amount, within a period of 8 weeks, from the date of receipt of a copy of this judgment before the Tribunal. While making such deposit any amount which is already deposited in these proceedings during the pendency of the appeals will have to be deducted.
18. The amount, if any, in deposit is ordered to be sent to Tribunal for disbursement to the claimant.
Sd/- JUDGE Sd/- JUDGE Sbs*