IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.882/2014 C/W M.F.A.No.4686/2010(MV) IN M.F.A.No.882/2014: BETWEEN:
R LAKSHMI NARAYAN S/O N RAMAIAH AGED 55 YEARS POLICE CONSTABLE RESIDENT OF KELAGOTE CHITRADURGA CITY – 577 501.
(BY SRI K B MONESH KUMAR, FOR SMT. VIJETHA R NAIK, ADVOCATE) AND:
1. S YUVARAJ S/O SUBRAMANI AGE:MAJOR RESIDENT OF No.6/29 KARUKKAMPALYAM ELEYA GOUDEN PALYAMM PICHADAM PALYAM POST PERUNDURAI TALUK ERODE DISTRICT TAMIL NADU – 638 110.
…APPELLANT 2. UNITED INDIA INSURANCE CO., LTD., DAVANAGERE D.O, M.M.K.COMPLEX AKKAMAHADEVI ROAD P.J EXTENSION, DAVANAGERE REP. BY ITS DIVISIONAL MANAGER SRI K NAGAPPA – 577 502.
…RESPONDENTS (BY SRI LAKSHMI NARASAPPA, ADVOCATE FOR R2 NOTICE TO R-1 IS DISPENSED WITH V/O DTD.22.11.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.02.2010 PASSED IN MVC No.418/2008 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN.) AND ADDITIONAL MACT, CHITRADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A.No.4686/2010: BETWEEN:
UNITED INDIA INSURANCE CO., LTD. DAVANAGERE D O M.M.K.COMPLEX AKKAMAHADEVI ROAD P.J.EXTENSION, DAVANAGERE REP. BY ITS DIVISIONAL MANAGER SRI K NAGAPPA.
…APPELLANT (BY SRI LAKSHMI NARASAPPA, FOR SRI B C SEETHARAMA RAO, ADVOCATE) AND:
SRI R LAXMINARAYAN AGED ABOUT 50 YEARS S/O N RAMAIAH RESIDENT OF KELAGOTE CHITRADURGA TOWN.
(BY SRI K B MONESH KUMAR, FOR M/S. RAVI B.NAIK ASSOCIATES) …RESPONDENT THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:26.02.2010 PASSED IN MVC No.418/2008 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE (SR.DN.) AND ADDITIONAL MACT, CHITRADURGA, AWARDING A COMPENSATION OF Rs.9,95,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
THESE MFAs COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeals are listed for admission, with the consent of the learned counsel appearing for the parties, they are taken up for final disposal.
2. These are the two appeals directed against the Judgment and award dated 26.02.2010 passed in MVC No.418/2008 by the I Additional Civil Judge(Sr.Dn) and Additional MACT, Chitradurga.
3. In order to avoid confusion and overlappings parties are hereinafter referred to as per their rankings before the Tribunal.
4. The proceedings came to be initiated because of the accident occurred on 25.11.2007. The petitioner while coming from Burujanaroppa by driving a tanker lorry and moving towards Aimangala at about 3.15 a.m. near Ganesha Temple, NH-4, the driver of a lorry bearing registration No.TN-33-AJ-6369 coming from Hiriyur side in a rash and negligent manner dashed against the tanker lorry driven by the petitioner because of which petitioner sustained serious injuries all over the body. To be precise, fracture of lower 1/3rd of shaft right femur and fracture of base of 1st Metatarsal, fracture in the neck of the 2nd Metatarsal bone and fracture dislocation of the inter phalange joint of the great toe of the right side(right foot) and fracture of both bones of lower end of right leg.
5. Petitioner is said to be a police constable and working as driver of a water tanker and compensation of Rs.17,50,000/- was sought. Against which the Tribunal passed an award of Rs.9,95,000/- together with interest at 6% p.a. from the date of petition till deposit. It is against this order claimant preferred MFA No.882/2014 seeking enhancement of compensation. At the same time, the insurance company has preferred MFA No.4686/2010 seeking to reduce the compensation.
6. After service of notice, respondent No.2 – insurance company appeared and filed objections. Respondent No.1 was set exparte. Petitioner in support of his claim, examined himself as PW-1, got examined one witness as PW-2 –Dr.M.S.Rajesh and got marked Exhibits P-1 to P-17. Respondent No.2 got marked Exhibit R-1 copy of the policy.
7. Tribunal after considering the oral and documentary evidence and materials available on record granted compensation of Rs.9,95,000/- together with interest @ 6% p.a. from the date of petition till deposit as under:
DESCRIPTION AMOUNT 1.Loss of future earnings Rs.5,85,000/-
2.Medical expenses Rs. 75,000/-
3.Pain & Sufferings Rs.2,50,000/-
4.Diet& Attendant charges Rs. 25,000/-
5.Loss of earn-leave Rs. 25,000/-
6.Future Medical expenses Rs. 35,000/-
Total Rs. 9,95,000/-
8. Learned counsel for petitioner Sri K.B.Monesh Kumar would submit that petitioner is totally dependant on the attendant for daily activities. It is further stated that the petitioner has become almost a vegetable and has to invariably meet the expenditure for pain and suffering and amount of compensation granted to the petitioner is unreasonably low.
9. Learned counsel for respondent-insurance company would submit that the petitioner is still in service and the question of disability does not arise.
10. The moot question for consideration would be regarding entitlement of enhanced compensation by the petitioner or modifying the judgment and award passed by the learned Member in MVC No.418/2008.
The undisputed facts are: (i) the motor vehicle accident dated 25.11.2007; (2) injuries to the petitioner because of the accident; and (3) loss suffered and expenditure incurred by the petitioner.
11. In the above background, it is not disputed that the petitioner is a Police Constable in District Armed Reserve and as submitted by the learned counsel for petitioner, he was assigned with the job of Driver. The Tribunal on partly allowing the claim petition granted a compensation of Rs.9,95,000/- together with interest at the rate of 6% p.a. from the date of petition till its realization and fastened liability on the Insurance Company who is the appellant in M.F.A. No.4686/2010. The heads recognized are as mentioned above.
12. The learned counsel for the Insurance Company would submit that the first head in the breakup is erroneously mentioned as “loss of future earnings’ and it ought to have been ‘attendant charges’.
13. The petitioner is said to be aged 48 years and at the time of accident, he was police constable in DAR and assigned with the job of a driver. Now the question would be regarding disability.
14. The learned counsel for Insurance Company would submit that the Tribunal erred completely in reckoning the compensation on attendant charges and future earnings. The learned counsel for petitioner would submit that even today without the assistance of an independent attendant around the clock, petitioner cannot pull on the life and its activities and thus he would submit that grant of compensation under attendant charges is very much less and it requires to be doubled keeping in mind the charge of an attend in the present days. At the same time, the learned counsel for the Insurance Company would submit that the question of claiming ‘medical expenses’ does not arise in the light of the availability of ‘reimbursement/refund of medical expenditure’ and this aspect has to be examined.
15. The injuries suffered by the claimant are grievous in nature. As per the evidence of the Doctor, the disability extends upto 74% and he is of the opinion that petitioner laboured disability of 74% and the same is mentioned in Disability Certificate Ex.P8 and without the assistance of the others he could not walk or claim stairs, get down from them, to stand and to sit and he would feel very difficulty. It is also stated that bones have not properly united and there is mal union. Under these circumstances, the Tribunal considers the attendant charges at Rs.5,85,000/- and as observed in page No.9 of the judgment, the charges of the attendant has been determined by the learned Member considering Rs.125/- per day which comes to Rs.3,750/- per month and Rs.45,000/- per year. The age of the claimant was 48 years at the time of accident and he has taken use of the multiplier ‘13’ and multiplied the amount of Rs.45,000/- and determined the attendant’s expenses at Rs.5,85,000/- and awarded the same.
16. Further the Tribunal has also awarded medical expenses of Rs.75,000/-, future medical expenses of Rs.35,000/- and loss of Earned leave of Rs.25,000/- for 60 days.
As a constable, petitioner was getting the salary of Rs.8,221/- per month. The disability certificate states the percentage of disability at 74%. The Doctor on examination of the petitioner on 2.1.2009 has opined as under:
On examination now (02/11/2009), he has multiple healed scars over the (R) thigh and ankle and foot associated with tenderness (3%), range of motion (ROM) of the (R) hip is reduced by 20 in flexion, 20 in abduction-adduction, 30 in rotation are (6% for the hip), at the ankle by 20 in dorsilexion-plantarflesion and (8% for the ankle, total of 14% for ROM), power is reduced by grade 2 at the (R) knee (12%) and grade 1 at the ankle (6%, total of 18% for power) (stability component -29%), has difficulty in walking on plain surface (10%) [mobility component – 60%] and his (R) leg is shorter by 2 inches [R-3.5 inches, L-35.5 inches] (8%). His recent S-ray (02/11/2009) shows that he has non-union of fracture of the (R) femur with implant in situ, malunited fracture of (R) tibia and fibula with implant in-situ and malunited fracture of the (R) 1st metatarsal (8%) [extra points – 18%].
17. According to him the patient has personal disability of 74%. After hospitalization for a period of 60 days as submitted by the counsel for petitioner, he resumed the job. There is a document which is not marked wherein, the salary is stated as Rs.8,221/- per month for the petitioner-Lakshminarayana R., AHC 22, District Armed Reserve. The learned counsel for Insurance Company does not dispute the same.
18. The judgment is dated 26.2.2010 and date of accident is 25.11.2007 and 11 years elapsed from the date of accident. The learned counsel for the petitioner in this connection submitted that the petitioner was doing some menial job. However, the name of the job was not mentioned. The petitioner is said to be working as DAR constable. Thus, it is not clarified as to whether he has got any promotion to higher rank and the related aspects.
19. Nodoubt, the Motor Vehicles Act is a social legislation, wherein the legality and humanity meet together in the approach towards the victim keeping in mind the above hardship arisen so on and so forth. But at the same time, a claim petition for compensation cannot be used as a platform to search fortune out of misfortune. It is unfortunate that accident happened. Victim suffered both physically and mentally and there are certain aspects which are beyond the reach of many, such as trauma and frustration. Having said that, the deserved are 100% entitled for compensation. In this connection, representation of facts becomes very important. It is not uncommon that the reliable fact invariably must be a probable one. If it is improbable, it is unbelievable as well. In the circumstances, the petitioner/injured is a police constable, no doubt, he was bed ridden or in the hospital for a period of 60 days. The court takes the judicial notice of the fact that when once the person goes on earned leave or medical leave, he is bound to produce fitness certificate issued by the competent Doctor to report for his duties. On the other hand, if he is still medically unfit, he would not have been taken to job. In this connection, it is stated that the petitioner is totally disabled and cannot sit, stand climb stairs, get down to the floor. Under these circumstances, the moot question is, whether he is discharging his duties. It is a quore of improbability to believe that the petitioner is fit and fine. When the claim of the petitioner and Insurance Company are considered together, it is a fact that he is working as constable and it is not in dispute that he has not suffered any demotion nor reduction in salary. Then it goes without saying that mark of disability is worn exactly for the purpose of claiming compensation.
20. Insofar as attendant charges or future earnings of Rs.5,85,000/- awarded by the Tribunal is concerned, this Court is unable to understand in what rationale the learned member has calculated the future earnings/attendant charges at Rs.5,85,000/-. It is necessary to mention that the disability of 74% and requirement of attendant on the one side and physical fitness in order to discharge the job of a constable on the other side are diagonally opposite to each other. In the circumstances, I do not find any rationale justification and proper application of mind for granting attendant charges of Rs.5,85,000/- and in this connection, I find the Tribunal committed a grave error in granting the compensation under the said head. Logically, it goes without saying that if the petitioner cannot walk or conduct activities without the assistance of an attendant, he cannot discharge the job of police constable as there is no accommodation in the Government job, more particularly as a driver. Hence, the compensation awarded under this head deserves to be deleted and accordingly, it is done.
21. Insofar as medical expenses is concerned, no clarification was given as to whether reimbursement/refund is made or otherwise considering the fact that petitioner is a police constable wherein there are facilities under KCSR Rules for the refund of medical expenses. In this connection, medical bills are filed and an amount of Rs.75,000/- is considered by the learned Member. In this connection, this court takes judicial notice of the fact that certain medical bills are not accepted, more particularly, when they are towards nutritious and vitamin medicines. Hence, Rs.75,000/- awarded towards medical expenses deserves to be maintained, but it is towards medical expenses, diet, nourishing food and attendant charges and accordingly, it is done.
22. Insofar as future medical expenses is concerned, considering that petitioner is 48 years of age, he is bound to retire one day or the other, I agree with the future medical expenses of Rs.35,000/- awarded by the Tribunal which is just and reasonable and it is maintained. So also, an amount of Rs.2,50,000/-
awarded under the head ‘pain and sufferings’ and Rs.25,000/- awarded under the head ‘loss of earned leave for 60 days’ are maintained. Under these circumstances, the compensation should have been:
DESCRIPTION AMOUNT 1.Medical expenses, diet, nourishing food and attendant charges Rs. 75,000/-
2.Pain & Sufferings Rs.2,50,000/-
3.Loss of earned leave Rs. 25,000/-
4.Future Medical expenses Rs. 35,000/-
Total Rs. 3,85,000/-
23. In the circumstances, by granting compensation of Rs.9,95,000/- to the petitioner, the Tribunal has committed a serious error and it should have been Rs.3,85,000/- only. Hence, the impugned judgment and award is liable to be modified by reducing the compensation from Rs.9,95,000/- to Rs.3,85,000/-
with interest at 6% p.a. from the date of petition till its deposit.
24. It is a surprising factor that petitioner is a constable working in Government Department and he becomes disabled to the extent of 74% before the court under the circumstances, the appeal preferred by the petitioner for enhancement is devoid of merits and is liable to be rejected and the appeal filed by the Insurance Company remains partly allowed.
In the result, I pass the following:
ORDER (i) M.F.A.No.882/2014 filed by the petitioner is dismissed;
(ii) M.F.A.No.4686/2010 filed by the Insurance Company is allowed in part.
(iii) Impugned judgment and award dated 26.2.2010 passed by the learned I Additional Civil Judge (Sr.Dn.) and Additional MACT, Chitradurga, in MVC No.418/2008 is hereby set aside for the purpose of modification for granting compensation of Rs.3,85,000/- together with interest at 6% p.a. from the date of petition till its realization.
(iv) If any amount is deposited in excess of the amount awarded here, it shall be refunded to the Insurance Company and if any balance is required for the amount of compensation confirmed, it shall be deposited by the Insurance Company within four weeks from the date of receipt of the copy of this judgment.
The amount deposited by the Insurance Company in MFA No.4686/2010 shall be transmitted to the jurisdictional Tribunal forthwith SBN/tsn* Sd/- JUDGE