IN THE HIGH COURT OF KARNATAKA AT BANGALORE ON THE 26TH DAY OF NOVEMBER 2014 BEFORE THE HON’BLE MR.JUSTICE K.L.MANJUNATH AND THE HON’BLE MR.JUSTICE RAVI MALIMATH MISCELLANEOUS FIRST APPEAL NO.3888 OF 2010(MV) C/W MISCELLANEOUS FIRST APPEAL NO.3520 OF 2010(MV) MFA.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, Tirunelvali.
3. Sri K.Subbammal Aged about 48 years W/o Sri Karappuswamy R/at No.3/4A, Shanthi Pudukodi, Block No.1, Shanthi, Pudukodi, Kayathar Kavilpatt: TK:628 952. …RESPONDENTS (By Ms.Irfana, Advocate for M/s.Sundaraswamy & Ramdas, Advocates for R1 R2 & R3-Served and unrepresented) ***** This MFA is filed under Section 173(1) of 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 a compensation of Rs.9,75,000/- with interest @ 6% P.A. from the date of petition.
MFA.No.3520/2010:
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. 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, Tirunelvali.
3. Sri K.Subbammal Aged about 48 years W/o Sri Karappuswamy Now R/at No.3/4A, Shanthi Pudukodi, Paruthihulam Paguthi Block, Chitarchathiram, Shanthi, Pudukodi, Tirunelvali - 628 952.
…RESPONDENTS (By Ms.Irfana, Advocate for M/s.Sundaraswamy & Ramdas, Advocates for R1 R2 & R3-Served and unrepresented) ***** This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 27.10.2009 passed in MVC.No.237/2007 on the file of the 1st Additional Civil Judge (Sr.Dn.), and MACT, Mysore, awarding a compensation of Rs.24,89,500/- with interest @ 6% P.A. from the date of petition till the date of payment.
These MFAs having been heard and reserved for judgment on 12.11.2014 coming on this day, Ravi Malimath J., pronounced the following:-
JUDGMENT The case of the claimants is that on 22-10-2006 at about 6.00 p.m. when they were travelling along with other family members in a Toyota Qualis bearing No.KA - 09/ N-2676 from Kanyakumari to Madurai, a lorry bearing No.TN-69/T-0109 came from the opposite direction and dashed against their vehicle near Gangal Kondan Deer park. The claimants sustained severe injuries. The 1st claimant filed MVC No.237/2007. His wife Gayathri filed MVC No.238/2007. Another relative filed MVC No.239/2007. On contest, the tribunal awarded 24,89,500/- in MVC No.237/2007 and Rs.9,75,000/- in 238/2007 and Rs.31,550/- in MVC No.239/2007.
Questioning the excessive grant of compensation the insurer has filed two appeals. Aggrieved by the order passed in MVC No.238/2007 the insurer has filed MFA No.3888/2010. Aggrieved by the impugned order in MVC No.237/2007, the insurer has filed MFA No.3520/2010.
MFA No.3888/2010 2. The learned counsel for the insurer contends that the impugned order is bad in law and liable to be set aside. That the tribunal has awarded compensation without any basis whatsoever. That number of errors can be seen in the impugned order. That there is an error in adding the sums as narrated in para-4. That the amount awarded at Rs.50,000/- towards nutritious food is far too exorbitant. That the amounts awarded towards disfigurement is at Rs.50,000/-., a sum of Rs.50,000/- towards pain and suffering, Rs.25,000/- for fracture Rs.50,000/- for medical expenses, Rs.2,00,000/- for loss of amenities, Rs.50,000/- for loss of expectation and Rs.50,000/- for future attendant charges. There is no basis whatsoever for the tribunal to award such excessive amounts.
MFA 3520/2010 3. The insurer contends that the tribunal misdirected itself in holding an excessive notional income of the claimant. The claimant was an Advocate by profession. Ex.P-13 is his Income-tax returns for the year 2007-08. The tribunal held that the notional income could be considered at Rs.30,000/- per month and awarded Rs.1,80,000/- towards the loss of income during the laid up period. The same income was considered for loss of income due to injury. That the disability as suffered by the claimant cannot be said to be 35% as stated by the Doctor when there is only a ½” shortening of the right leg. The tribunal therefore committed an error in holding that the same has affected his profession by holding his disability at 35%. He contends that the compensation to be granted by the tribunal should be based on material and evidence on record. The assumption made by the tribunal is erroneous and liable to be set aside. That the claimants are not entitled for the huge sums of compensation that has been awarded by the tribunal.
4. On the other hand, the learned counsel appearing for the claimants contends that there is no error that calls for any interference. That the claimants have sustained grievous injuries and hence, the tribunal was justified in awarding the compensation. That the contentions of the insurer of excessive compensation therefore cannot be accepted.
5. Heard learned counsels and examined the records.
6. In MFA 3520/2010, the claimant is stated to be an Advocate by profession for the last 30 years. The case made out is that he sustained grievous injuries, such as fracture and disfigurement, for pain and suffering and other injuries. There was right forearm wrist fracture, loss of two teeth. He was treated at Sakthi Hospital Thirunelveli and operated for the head injuries. On the same day the blood clots were removed. He was shifted from Thirunelveli to Trivandrum by ambulance and thereafter to Bangalore and from Bangalore to BGS Apollo hospital, Mysore from Bangalore Airport. Expenses were incurred for his transportation. Expenses were also incurred for the accompanying Doctors in the ambulance from the airport. Once again he was readmitted on account of the injuries suffered. That if he reads for more than 15 minutes he develops giddiness. He is unable to walk. He is unable to do any day today activities. He claims that his income has been reduced after the accident. The accident took place on 22-10-006. The Income-tax returns for the year 2006-07 show that he had an income of Rs.1,63,000/- per annum vide Ex.P-13. It is for the assessment year 2007-2008, namely the financial year 1-4-2006 to 31-3-2007. The accident occurred on 22-10-2006. The income therein is a sum of Rs.1,63,516/- and therefore the monthly income would be Rs.13,626/-. The tribunal on the other hand held that based on the claim made that he was earning Rs.30,000/- per month the same was accepted. 6 months laid up period was calculated and Rs.1,80,000/- was awarded towards loss of income during the laid up period. The multiplier of 11 was adopted on a notional income of Rs.30,000/- per month and Rs.13,86,600/- was awarded towards loss of income towards permanent disability.
7. It is an erroneous approach by the tribunal.
Ex.P-13 should have been rightly considered to arrive at the notional income. The tribunal has committed a blunder in holding his income at Rs.30,000/- per month based on Ex.P-13. Further, the disability as noted by the Doctor is ½“ shortening of the leg. It cannot be said that the same would amount to 35% functional disability. The functional disability assessed at 35% is a huge percentage and based on the available material and evidence on record, it is not justifiable. 35% disability as held by the tribunal is therefore erroneous and requires to be set aside. A sum of Rs.50,000/- has been awarded towards nutritious food, Rs.2,00,000/- towards attendant charges and a sum of Rs.2,00,000/- towards future unhappiness. We are of the considered view that none of these amounts are justifiable. The amount of Rs.50,000/- awarded towards nutritious food is unheard off. Attendant charges at Rs.2,00,000/- is not justifiable from the material on record. The loss of amenities at Rs.2,00,000/- is arrived at by a figment of imagination by the tribunal. The same has no nexus with the injury sustained and the loss of happiness. Therefore, the amounts awarded on these heads requires to be reconsidered.
8. In MFA No.3888/2010 the claimant is the wife of the claimant in the previous MFA No.3520/2010. A sum of Rs.4,23,500/- was awarded towards medical bills and air tickets as per the calculation of the tribunal in para-42 of its Judgment. We fail to understand as to how the total could be Rs.4,23,500/-. The figures shown in para-42 are
Ex.P-17(1) shows amount of Rs.1,08,635/- at Sri Sakthi hospital. Rs.1,06,660/- towards hosptalisation at BGS hospital, Mysore. Rs.22,500/- towards the Air tickets Rs.1,880/- each towards Doctor Janahavi Bengeri and Mrs.Prabha Ashok towards flight charges. Therefore the total would come to Rs.2,41,555/-. Thereafter it is stated the total comes to Rs.4,23,500/- which is erroneous. Therefore, the same has to be modified. A sum of Rs.50,000/- has been awarded towards nutritious food, Rs.2,00,000/- for attendant charges which is wholly exorbitant. So far as pain and suffering is concerned, a sum of Rs.50,000/- has been awarded towards disfigurement. Rs.50,000/- for pain and suffering, Rs.25,000/- for fracture of right hand humerous bone Rs.4,23,500/- for medical expenses. Rs.2,00,000/- for loss of amenities. Rs.50,000/- for loss of expectation of life. Rs.50,000/- towards future attendant charges. In our considered view the amount awarded do not justify the facts and material available on record. None of these amounts should have been granted by the tribunal.
9. On hearing learned counsels, we are of the view that the appropriate relief requires to be granted.
The amounts awarded by the tribunal are not justifiable. Based on the evidence and material on record the income of the claimant in MVC No.237/2007 has been erroneously held by the tribunal. The percentage of disability attributed to him is unacceptable. The amounts awarded under various other heads, such as food, pain and suffering and attendant charges are unjustifiable. The error in awarding the medical and other expenses is writ large on the face of the record. The same requires to be rectified. Hereto the amounts awarded towards nutrition, attendant charges and loss of amenities future and attendant charges are unjustifiable.
10. Under these circumstances, we are of the considered view that this is not a mere error that has been committed by the tribunal. The tribunal was off at a tangent in awarding these sums. None of them have any justification to the evidence and material on record. None of them can be relatable to evidence. Even though the grant of compensation cannot be denied, time and again the Courts have held that compensation to be granted should be a just compensation. Just compensation does not mean excessive compensation. It has to have nexus with the injuries sustained by the claimants and also the nature of evidence and all such factors that would assist in arriving at a just and fair determination. However, the tribunal in the instant case has misread the material evidence on record and has granted compensation which is unacceptable. We have therefore no hesitation to hold that the order of the tribunal suffers from material irregularity. Even though it is strongly contended by the appellant’s counsel that award of huge compensation amounts are deliberate, we refrain from recording any finding to the said effect. We however are clear in holding that the manner in which the compensation has been awarded by the tribunal has no nexus to the material on record. We hope that tribunal would be more circumspect in dealing with the future cases.
11. It is therefore our considered view that it is only just and appropriate that the tribunal reconsiders the entire material evidence on record and thereafter arrives at a just and fair compensation. The tribunal is herein directed to reconsider the entire evidence and material on record and thereafter pass appropriate orders in accordance with law.
12. There is absolutely no necessity for either of the parties to lead any further evidence. It would suffice if the parties are given an adequate opportunity to make out their case at arguments.
For the aforesaid reasons, the appeals are allowed. The order dated 27-10-2009 passed in MVC Nos.237/2007 and 238/2007 by the 1st Additional Civil Judge(Senior Division), MACT, Mysore is set aside. The matter is remanded to the tribunal. The tribunal to hear the arguments of both sides and thereafter to pass appropriate orders in accordance with law. No further evidence to be recorded.
The amount in-deposit is ordered to refunded to the respective appellants.
The parties to appear before the Tribunal on 15-12-2014.
Sd/- JUDGE Sd/- JUDGE Rsk/-