IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR.JUSTICE P.B. BAJANTHRI M.F.A. NO.3888/2010 C/W M.F.A. NO. 3520/2010 (MV) IN M.F.A. NO.3888/2010 BETWEEN:
THE ORIENTAL INSURANCE COMPANY LIMITED D.O. NO. V, IV FLOOR, SPENCER TOWERS, 220/A, ANNA SALAI, CHENNAI- 600 002.
DULY REPRESENTED BY THE REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE LEO SHOPPING COMPLEX 44/45, RESIDENCY ROAD BANGALORE- 560 025 BY ITS MANAGER …APPELLANT (BY SRI.A.RAVISHANKAR, ADVOCATE) AND:
1. SMT. GAYATHRI UMESH AGED ABOUT 49 YEARS W/O S.UMESH R/AT NO. 369, MADHAV BHAVAN J.L.B.ROAD, MYSORE 2. SRI.MURUGAN AGED ABOUT 43 YEARS S/O PERUMAL THEVAR R/AT NO. 121, PARUTHIHULAM PAGUTHI CHITARCHATHIRAM THIRUNELVALI 3. SRI.K.SUBBAMMAL AGED ABOUT 48 YEARS W/O SRI.KARAPUSWAMY R/AT NO.3/4A (BY SRI P.S.SAWKAR, ADVOCATE FOR M/S.SUNDARASWAMY & RAMDAS FOR R1 NOTICE TO R2 & R3 SERVED AND REPRESENTED) ... RESPONDENTS THIS MFA FILED UNDER SECTION 173 (1) MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.10.2009 PASSED IN MVC NO. 238/2007 ON THE FILE OF THE 1ST ADDITIONAL CIVIL JUDGE, (SR.DN), CJM, AND MACT, MYSORE, AWARDING AND COMPENSATION OF RS.9,75,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF THE PETITION.
IN M.F.A. NO. 3520/2010 (MV) BETWEEN:
1 THE ORIENTAL INSURANCE COMPANY LIMITED D.O. NO. V, IV FLOOR, SPENCER TOWERS, 220/A, ANNA SALAI, CHENNAI- 600 002.
DULY REPRESENTED BY THE REGIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD., REGIONAL OFFICE LEO SHOPPING COMPLEX 44/45, RESIDENCY ROAD BANGALORE- 560 025 BY ITS MANAGER (BY SRI.A.RAVISHANKAR, ADVOCATE) AND:
1. SRI.S.UMESH ADVOCATE AGED ABOUT 56 YEARS S/O LATE SRI.K.SRINIVASA RAO R/AT NO. 369, MADHAV BHAVAN, J.L.B.ROAD, MYSORE 2. SRI.MURUGAN AGED ABOUT 43 YEARS S/O PERUMAL THEVAR R/AT NO. 121, PARUTHIHULAM PAGUTHI CHITARCHATHIRAM THIRUNELVALI 3. SRI.K.SUBBAMMAL AGED ABOUT 48 YEARS W/O SRI.KARAPUSWAMY R/AT NO.3/4A, SHANTHI PUDUKODI PARUTHIHULAM PAGUTHI CHITRACHATHIRAM …APPELLANT THIRUNELVALI- 628952 ... RESPONDENTS (BY SRI P.S.SAWKAR, ADVOCATE FOR M/S.SUNDARASWAMY & RAMDAS FOR R1 NOTICE TO R2 & R3 SERVED AND REPRESENTED) THIS MFA FILED UNDER SECTION 173 (1) MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 27.10.2009 PASSED IN MVC NO. 237/2007 ON THE FILE OF 1 ADDITIONAL CIVIL JUDGE (SR.DN) & MACT, MYSORE, AWARDING A COMPENSATION OF RS.24,89,500/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PEITION TILL THE DATE OF PAYMENT.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON 07.12.2018 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, BAJANTHRI J., DELIVERED THE FOLLOWING:
JUDGMENT These appeals are filed by M/s. Oriental Insurance Company Limited (for brevity ‘insurance’) against the judgment and award dated 27.10.2009 passed by the I Addl. Civil Judge (Sr.Dvn.) & MACT, Mysore in MVC Nos.237/2007 and 238/2007 awarding compensation of Rs. 24,89,500/- and Rs. 9,75,000/- respectively. The aforesaid appeals were disposed of by Co-ordinate Bench of this Court on 26.11.2014 while remanding the matter to the Tribunal. Feeling aggrieved by the judgment dated 26.11.2014, respondents - S Umesh and another, filed appeals before the Hon’ble Supreme Court which were numbered as C.A.nos.(S) – 8774- 8775/2015 which was decided on 12.08.2016, wherein matters were remanded to this Court for reconsideration and to pass appropriate orders afresh without being influenced by the observations made in the impugned judgment, however, order with regard to the medical evidence while imposing certain conditions on the Oriental Insurance Company Limited to deposit sum of Rs.10.00 lakh in C.A.No.8774/15 and Rs.5.00 lakh in C.A.No.8775/15 in favour of respective appellants before this Court within two weeks from the date of the order. Further, appellants therein were directed to withdraw the aforesaid amount subject to final decision in the matter. Hence, MFA Nos.3888/10 and 3520/2010 are decided afresh.
2. Brief facts of the case are that on 22.10.2006 at about 6.00 PM when the claimants were traveling in chauffeur driven Toyota Qualis bearing No.KA-09/N- 2676 from Kanya Kumari to Madurai along with some of their family members, lorry bearing No.TN-69/T-0109 driven by its driver one P.Murugan (1st respondent in all the three MVCs) drove the lorry in rash and negligent manner from opposite direction, hit against the claimants vehicle near Gaangai Kondan Deer Park which resulted in grevious injuries being sustained to S.Umesh (MVC No.237/2007), Gayathri Umesh (MVC No.238/07) and simple injuries to Mrs.Geetha Venkatrao (MVC No.239/07). They claimed compensation in sum of Rs.90,62,269/-, Rs.64,76,050 and Rs.11,09,861/- respectively under various heads from the respondents along with interest @ 18% p.a. The Tribunal passed a common order on 27.10.2009 which reads as under:
“The petitions filed under section 166 of the Motor Vehicles Act are hereby partly allowed with cost.
The petitioners in M.V.C. 237/2007, M.V.C.237/2007 and M.V.C.239/2007, are entitles for total compensation of Rs.24,89,500/- (Rupees Twenty Four Lakh Eighty Nine Thousand Five Hundred only) Rs.9,75,000/- (Rupees Nine Lakh Seventy Five Thousand only) and Rs.31,550/- (Rupees Thirty one thousand Five Hundred and Fifty only) respectively together with interest at the rate of 6% p.a. from the date of petition.
The respondent No.3, shall deposit the same within a month from today on behalf of the 2nd respondent.
In M.V.C. 237/2007, 1/4th of the compensation amount shall be released in the petitioner’s favour and remaining amount of the compensation shall be deposited in any of the Nationalized Bank of petitioner’s choice in his name for a period of 3 years.
In M.V.C.238/2007, 1/4th of the compensation amount shall be released on the petitioner’s favour and remaining amount of the compensation shall be deposited in any of the Nationalized Bank of petitioner’s choice in her name for a period of 3 years.
In M.V.C.239/2007, entire compensation amount shall be paid to the petitioner by way of A/c payee cheque.
The original of this judgment shall be kept in MVC 237/2007 and copies thereof shall be kept in MVC 238/2007 and MVC 239/2007.
Draw the award accordingly.”
3. Learned counsel for the appellants – Insurance restricted its argument in respect of claimant – S.Umesh in MVC No.237/07 to the extent of income as Rs.30,000/- per month taken by the MACT. Further, award of compensation on various heads are exorbitant.
4. The claimant – Gayathri in MVC No.238/2007 is concerned, it was contended that medical expenses awarded by the MACT is contrary to the medical expenses meted out by her. Therefore, rightly on an earlier occasion, this Court held that MACT has awarded compensation exorbitantly.
5. Learned counsel for the insurance specifically pointed out that for the purpose of determination of income in respect of claimant S.Umesh is concerned, it is necessary to take the income tax returns of the assessment year from 01.04.2005 to 31.03.2006 (Ex.P.36) and not the assessment year for 2007-08 (Ex.P.13) which is dated 10.08.2007 for the reason that the accident took place on 22.10.2006 and as on that date the income tax assessment is required to be taken with reference to his income from 01.04.2005 to 31.03.2006. In order to claim more compensation, claimant – S.Umesh has shown his income which is almost double vide Ex.P.13. In order to believe Ex.P13, claimant – S.Umesh has not furnished further any documentary evidence like future income tax returns from 2008-09 onwards or even during the pendency of the present litigation i.e., as on this day, he has not appraised that his income is Rs.30,000/- per month. Therefore, Tribunal has erred in not calculating the income of the claimant – S.Umesh with reference to Ex.P.36. Ex.P.36 is required to be taken into consideration for the purpose of assessment of income of claimant – S.Umesh which would be Rs.14,240/- x 6 months = Rs.85,440/- (loss of income during treatment period). Consequently, future loss of income would be, monthly income Rs.14,240/- applying multiplier of 11 and disability of 35% would be a sum of Rs.6,60,000/-. Further, various heads under item Nos.4 to 13 awarded by the MACT is exorbitant and under sum of the head it is impermissible like future medical expenses, future attendant charges, surgery towards mal-union fracture of left wrist, loss of expectation of life etc.
6. Similarly, in the case of claimant Gayathri in MVC No.238/2007, MACT erred in awarding Rs.4,23,500/- towards medical expenses and transportation instead of actual entitlement of sum of Rs.2,41,555/- so also other heads which have been exorbitantly compensated.
7. Per contra, learned counsel for the claimants vehemently contended that the Tribunal has not erred in awarding compensation, in fact award of compensation is on lower side. Insurance has not made out a case so as to interfere with the order of the MACT. Hence, the appeals are liable to be rejected.
8. Learned counsel vehemently contended that as on the date of accident viz., 22.10.2006, income of the claimant S.Umesh is required to be taken into consideration with reference to income tax assessment for that particular period and not Ex.P.36 which relates to the period from 01.04.2005 – 31.03.2006. Therefore, the contention of the insurance is highly arbitrary and illegal. It was also contended that there is no error in respect of other heads and the MACT has not awarded compensation unreasonably. Hence, the contention of the learned counsel for the insurance sought for reducing compensation does not merit consideration even in the case of claimant – Gayathri Umesh. Hence, appeals are to be dismissed.
9. Heard learned counsel for the parties.
10. It is appropriate to reproduce the decision of the Supreme Court dated 12.08.2016 which reads as under:
“Heard learned counsel for the parties.
Having regard to the facts and circumstances of the case, legal submissions advanced by the learned counsel for the parties and the material evidence available on record, we find good reason to interfere with the impugned judgment and order as the High Court was not right in remanding the matter back to the 1st Additional Civil Judge (Senior Division) MACT, Mysore. On this ground alone we set aside the impugned judgment and order and remand the matter back to the High Court to reconsider the matter and pass an appropriate order afresh without being influenced by the observations made in the impugned judgment and order with regard to the medical evidence.
In the meanwhile, respondent no.1- the Oriental insurance company Ltd., is directed to deposit an amount of Rs.10 lacs in C.A no. 8774 of 2015 and Rs. 5 lacs in C.A. No. 8775 of 2015 in favour of respective appellants, before the High Court within two weeks from today. We make it clear that the appellants will be at liberty to withdraw the aforesaid amount however, the same will be subject to final decision in the matters.
The appeals are disposed of with aforesaid direction.”
11. The Hon’ble Supreme Court while remanding the matter has directed this Court to reconsider the matters without being influenced by the observations made in the earlier judgment and order with regard to medical evidence. Learned counsel for the insurance restricted his contentions to the extent of income and in respect of other heads of compensation awarded to claimant – S.Umesh and medical expenses and transportation and other heads of compensation awarded to claimant – Gayathri.
12. Core issue is, “Whether claimant – S.Umesh is entitled for claim compensation with reference to his monthly income of Rs.30,000/- or Rs.14,000/- to Rs.40,000/- and other heads as determined by the MACT is in order or not?”
13. Further, in respect of claimant – Gayathri, “Whether MACT has determined medical expenses and transportation and other heads are in accordance with reasonable assessment or not?”
14. Income of the claimant – S.Umesh in a sum of Rs.30,000/- cannot be appreciated even though income tax assessment document vide Ex.P.13, wherein a sum of Rs.30,000/- has been shown and the date of accident is within the assessment of income period as per Ex.P.13. The same cannot be taken into consideration for the reason that in Ex.P.36, the income tax assessment for the period from 01.04.2005 to 31.03.2006 (about Rs.15,000/-) whereas for the further period, claimant – S.Umesh has declared that his monthly income is Rs.30,000/-. Such declaration is dated 10.08.2007 whereas the date of accident is 22.10.2006. Therefore, one has to draw inference that in order to claim more compensation, claimant – S.Umesh has declared his income on higher side i.e. a sum of Rs.30,000/- which is double the income declared on the previous assessment. Assuming that such declaration is correct, at the same time further documents have not been placed on record like future income tax assessment so as to corroborate the income of the claimant – S.Umesh’s income is Rs.30,000/-. Hence, if one has to determine the compensation with reference to Ex.P.36, it would be around Rs.14,240/-
per month. In this regard, it is necessary to reproduce points for consideration furnished by the learned counsel for the insurance which reads as under:
“Points for consideration: Admittedly, the claimant Umesh was having gross income of Rs.1,85,630/- and after payment of tax, the income shown in Ex.9.36 is Rs.1,70,877/-. If the said amount is deducted by 12, 1,70,877/12= Rs.14,240/- per month. 35% of the said Rs.14,240/- would be Rs.4,983/- rounded off to Rs.5,000/- per month. Admittedly, the age of the claimant was 53 years and the multiplier would be ‘11’. Therefore, the compensation payable for ‘loss of earning capacity due to disability’ would be Rs.5,000/- x 12 x 11= Rs.6,60,000/-.
The compensation awarded in a sum of Rs.13,86,600/- has to be replaced with Rs.6,60,000/- as this would be the just compensation.
Like wise, the claimant will be entitled for the following compensation.
Sl.
No.
Description Amount in Rs. (awarded by MACT) Actual entitlement 1 Medical expenses 4,62,500-00 4,62,500-00 2 Loss of income during treatment (Rs.30,000/- X 6 months) 1,80,000-00 85,440-00 (14,240 X 6) 3 Future loss of income:
a) Monthly income Rs.30,000/-
b) Multiplier applicable c) Disability 35% Rs.30,000 X 12 X 11 X 35% 13,86,600-00 6,60,000-00 4 Nutritious food 50,000-00 7,500-00 5 Attendant charges 25,000-00 25,000-00 6 Loss of amenities 2,00,000-00 25,000/-
7 Future medical expenses 8 Future attendant charges 2,00,000-00 50,000-00 9 Pain and sufferings 50,000-00 50,000/-
10 Loss of tooth (molar) 11 Surgery towards mal union 12 Fracture of left wrist 13 Loss of expectation of life 1,000-00 1,000/-
10,000-00 5,000-00 50,000-00 TOTAL 24,89,500-00 13,16,440-00 (Emphasis supplied) It is relevant to point out that the claimant who claims to be a practicing Advocate has produced the Income Tax Returns of the financial year 1.4.2005 to 31.3.2006 and not for the subsequent financial years. He continues to practice law in the Courts at Mysore. The claimant will not be entitled for future prospects as the matter does not involve fatal accident and that the claimant is aged 53 years as on the date of accident.”
Vide para-6 of the statement filed today.
15. Perusal of paragraph 6 of the above extracted statement of the insurance from each of the item read with compensation awarded is an astronomical figure. In other words, it is highly unreasonable. For instance Nutritious Food award of compensation is Rs.50,000/-, Future medical expenses Rs.2.00 lakh, future attendant charges – Rs.50,000/-, loss of expectation of life – Rs.50,000/- etc. Therefore, insurance has rightly proposed to admit the compensation to be paid in a sum of Rs.13,66,440/- as stated supra.
16. As regards Claimant – Gayathri’s matter is concerned, insurance has furnished following statement to the extent of how much compensation could be awarded with reference to facts and figures which reads as under:
“MFA 3888/2010: The claimant Gayathri in MVC 238/2007 sustained fracture of right femur, right humorous, loss of tooth and disfigurement, shortening of 4 cm. The Doctor has stated that the claimant has sustained permanent disability of about 32%.
The Tribunal has awarded the following compensation:
Sl.
No.
Description Amount in Rs.
1 Medical expenses and 4,23,500-00
Note: The actual amount would be Rs.8,82,600/-. The Tribunal has incorrectly shown the medical expenses as Rs.4,23,500/- instead of Rs.3,31,000/- and summed it as Rs.9,75,000/-
The claimant will be entitled for the following
(Emphasis supplied) The Division Bench of this Hon’ble Court, in the earlier judgment, vide paragraph-8 has held clearly that the calculation made by the Tribunal is wholly incorrect and that the claimant would not be entitled for so many heads of compensation, as made out to be by the Tribunal.
Admittedly, the claimants have not produced any document to indicate that they have undergone future operations resulting in expenses. There are also no documents to indicate the present physical condition of the claimants. There are also no documents to indicate the actual tax paid by Sri.Umesh subsequent to the accident to establish his income. It could be gathered that his income has been escalated and therefore, the subsequent documents have not been produced.”
17. Learned counsel for claimant – S.Umesh appraised this Court to the extent as to how the aforesaid statement of the insurance is arbitrary and illegal with reference to documentary evidence for purpose of claiming future medical expenses and other heads. The claimant has no answer to support the income as Rs.30,000/- like corroborative evidence of future assessment years. Therefore, it is evident that in order to claim more compensation, income tax has been paid as if the claimant – S.Umesh was earning sum of Rs.30,000/- as on the date of the accident. Such assessment, was made much after the date of the accident i..e, 10.08.2007. Therefore, intention of the claimant – S.Umesh is evident that in order to claim more compensation he had furnished more income in the income tax assessment for the year 2007-08 as his income being doubled from Rs.15,000/- to Rs.30,000/-.
18. In view of these facts and circumstances read with Ex.P.13 and Ex.P.36, income of the claimant – S.Umesh will have to be taken as sum of Rs.14,240/- per month. Consequently, his entitlement would be as under:
Sl.
No.
Description Actual entitlement 1 Medical expenses 4,62,500-00 2 Loss of income during treatment (Rs.30,000/- X 6 months) 85,440-00 (14,240 X 6)
19. In the case of claimant – Gayathri, learned counsel was disputing the calculation and entitlement furnished by the insurance is without any yardstick. Therefore, statement cannot be accepted. When the actual medical expenses and transportation has been taken into consideration by the Co-ordinate Bench of this Court with reference to material on record, the statement of the insurance in admitting medical expenses and transportation would be Rs.2,41,555/-.
Hence, claimant - Gayathri is entitled to compensation as under:
Sl.
No.
Description Actual entitlement 1 Medical expenses and 2,41,555/-
20. Accordingly, we pass the following:
ORDER Appeals of the Insurance are allowed in part to the extent indicated above. The judgment and award passed by the I Addl. Civil Judge (Sr.Dvn.) & MACT, Mysore in MVC Nos.237/2007 and 238/2007 dated 27.10.2009 passed are modified to the above extent only. The appellant – insurance company is liable to pay the modified award as stated supra and modified amount with interest @ 6% from the date of the petition would realization in both the appeals after deducting the amount if any, already paid. On all other issues, the order of the MACT holds good. The amount in deposit may be transferred to the Tribunal for disbursement in accordance with law.
Sd/- JUDGE Sd/- JUDGE brn