IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF OCTOBER, 2019 PRESENT THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA AND THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM MFA NO.10804/2011 (MV) C/W MFA NO.1578/2012 (MV) IN MFA NO.10804/2011 BETWEEN:
M/S THE ORIENTAL INSURANCE COMPANY LIMITED LEO SHOPPING COMPLEX NO.44/45, RESIDENCY ROAD, BANGALORE-1 REPRESENTED BY ITS, REGIONAL MANAGER (BY SRI B.S. UMESH, ADVOCATE) AND:
1. DR. S.SRINIVAS S/O DR. S.S.BHAT, AGED ABOUT 45 YEARS, RESIDING AT NO.1543, 29TH CROSS, B.S.K. II STAGE, BANGALORE-560070 ...APPELLANT 2. SRI PRASHANTH V KAMATH TARCAR MAJOR, FATHE’S NAME AND EXACT AGE NOT KNOWN TO APPELLANT RESIDING AT MASCARENHAS BUILDING, M.G.ROAD, PANAJI ROAD, TISWADI, GOA ...RESPONDENTS (BY SRI K.T. GURUDEVA PRASAD, ADVOCATE & SRI D.M.LOHITH, ADVOCATE FOR R1;
R2 SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02/07/2011 PASSED IN MVC.NO.5810/2009, ON THE FILE OF THE III ADDL. SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL, BANGALORE (SCCH-18), AWARDING A COMPENSATION OF RS.9,53,437/- WITH INTEREST AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
IN MFA NO.1578/2012 BETWEEN:
DR.S. SRINIVAS S/O.DR S.S BHAT AGED ABOUT 44 YEARS R/A NO.1543, 29TH CROSS, BSK II STAGE BANGALORE-560 070.
...APPELLANT (BY SRI.H.R.SATHYAPAL, ADVOCATE AND SRI.K T GURUDEVA PRASAD, ADVOCATE) AND:
1. THE REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD. REGIONAL OFFICE NO.44/45, LEO SHOPPING COMPLEX, BANGALORE-560 025 2. SRI PRASHANT V KAMAT TARCAR MASCARENHAS BUILDING, M.G ROAD PANAJI, GOA TISWADI GOA (EXPARTE) ...RESPONDENTS (BY SRI.B S UMESH, ADVOCATE FOR R1; R2 SERVED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:02.07.2011 PASSED IN MVC NO.5810/2009 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA’S COMING ON FOR FINAL HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT The Insurance Company has preferred an appeal in MFA.No.10804/2011 assailing the correctness and legality of the judgment and award passed in MVC.No.5810/2009. On receipt of notice, respondent– claimant has also preferred an appeal in MFA.No.1578/2012.
2. Insofar as appeal preferred by the Insurance Company is concerned, learned counsel appearing for the Insurance Company would vehemently argue that the compensation determined under the head ‘future loss of earnings’ was unwarranted, since the respondent-claimant is a Doctor by profession and no material is placed on record that there is reduction in his earning capacity on account of disability suffered in the accident.
3. We find some force in the submission made by the learned counsel appearing for Insurance Company. On perusal of the material on record and having gone through the medical evidence more particularly, the ocular evidence of the doctor who is examined as PW.2 has deposed that there is no history of any lower limb weakness. A detailed clinical and neurological examination revealed a conscious patient, with a well healed surgical wound with severe tenderness just below the operated site with no motor deficits. Hence a diagnosis of post-traumatic dorsal spine injury was made and he was investigated as follows:
a) An X-ray of the DL spine (AP and lat) done at Delta diagnostics on 14/04/10 revealed evidence of the implants in situ and no angulation of kyphotic deformity. However, there was some evidence of the fracture not having healed well.
b) MRI and CT of the spine done at CLUMAX diagnostics on 10/04/10 revealed evidence of non- united fractures of the D10 vertebral body and a mild compression of the L1 body.
4. With this portion of evidence of the Doctor, if we peruse the evidence of the claimant who is examined as PW.1, he has deposed to the effect that on account of the accident and disability suffered therein, he is unable to work as he was able to work prior to the accident. The further statement that he used to carry out scanning of around 100 per day is reduced to 40, is a bald statement and is not supported and corroborated by any documentary evidence. In any event, it is evident that he has resumed his profession and even now he is working as a Doctor and it is not seriously disputed by the respondent – claimant.
5. Having regard to the gravity of injury more particularly, injury to the spine, we are of the view that some disability is to be taken into note and accordingly, we proceed to hold that the disability assessed by the Tribunal at the rate of 12% warrants interference as it is on the higher side, we deem it fit to take the disability at 5% without disturbing his income. Hence, the compensation payable under the head ‘loss of future earnings’ would come to Rs.2,36,140.8/- (28,112x12x14x5%) rounded off to Rs.2,36,200/-.
6. Learned counsel appearing for the Insurance Company would rightly contend before us that the interest at the rate of 8% awarded by the Tribunal is on the higher side. We deem it fit to modify the same and the modified compensation determined by this Court shall carry interest at the rate of 6% from the date of petition till the date of deposit.
7. In the result, the revised compensation the claimant would be entitled to is Rs.6,22,900/- payable with interest at 6% per annum from the date of petition till date of payment of the same.
8. In view of the reasons assigned above, the appeal filed by the Insurance Company in MFA.No.10804/2011 is allowed in part. In the light of the observations made in MFA.No.10804/2011, the appeal filed by the respondent – claimant in MFA No.1578/2012 does not survive for consideration and the same stands dismissed.
Sd/- JUDGE Sd/- JUDGE CA