IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 21ST DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE N K SUDINDRARAO MISCELLANEOUS FIRST APPEAL NO. 5268/2019 (MV I) BETWEEN:
M/S RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICE, MAXIMUS COMMERCIAL COMPLEX, 4TH FLOOR, LIGHT HOUSE HILL ROAD, HAMPANAKATTA, MANGALORE.D.K NOW REPRESENTED BY ITS MANAGER, M/S RELIANCE GENERAL INSURANCE COMPANY LTD., NO.28, 5TH FLOOR, CENTENARY BUILDING, M.G.ROAD, BANGALORE-560 001. ... APPELLANT (BY SRI H.N. KESHAVA PRASHANTH, ADVOCATE) AND:
1. MOHAN SHETTY, S/O RAJU SHETTY, NOW AGED ABOUT 54 YEARS, R/AT PADUMALE HOUSE, BANTAKAL, SHRIVA VILLAGE, UDUPI TALUK AND DISTRICT.
REPRESENTED BY HIS NEXT FRIEND/ WIFE CHETHANA, 45 YEARS, R/AT PODUMALE HOUSE, BANTAKAL, SHRIVA VILLAGE UDUPI TALUK AND DISTRICT.
2. SANDEEP, S/O NARAYANA KULAL, R/AT H.NO.1-204(1), BIJIKREKADU HOUSE, SHANKARAPURA POST, SHIRVA VILLAGE, UDUPI TALUK AND DISTRICT.
3. THE NEW INDIA ASSURANCE. CO. LTD., DIVISIONAL OFFICE, DIVISIONAL MANAGER, SRI RAM ARCADE, OPP: HEAD POST OFFICE – UDUPI.
... RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 02.04.2019 PASSED IN MVC NO.876/2015 ON THE FILE OF THE II ADDITIONAL M.A.C.T., UDUPI, AWARDING COMPENSATION OF RS.10,31,884/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though this matter is listed for admission, having regard to the circumstances of the case, the same is taken up for hearing with the consent of learned counsel for appellant.
2. This appeal is directed against the judgment and award dated: 2.4.2019 passed by the learned Additional Motor Accidents Claims Tribunal and Second Additional Senior Civil Judge, Udupi, in MVC NO.876/2015, wherein the claim petition came to be allowed in part and the claimant was granted compensation of Rs.10,31,884/- along with the interest at the rate of 6% p.a.
3. The details of the accident are as follows:
On 27.11.2014 at about 3.00 p.m., the petitioner along with his wife was traveling in a bus bearing Reg. No.KA-20-B-7806 to go to Bantakal of Udupi Taluk. When the said bus reached near Bantakal, the driver of the bus slow down the bus for passengers to get down from the bus and the petitioner along with his wife stood in the bus to get down, at that time the driver of the bus all of sudden, drove the bus without any signal in a rash and negligent manner and suddenly turned the bus to its left side and then turned to its right side to give side to the tipper which was coming in front of the said bus. As a result the petitioner was thrown out from the bus on tar road and sustained severe head injury.
4, It is stated that he has sustained injuries and was inpatient in the KMC Hospital, Manipal from 27.11.2014 to 19.12.2014, and he has undergone surgery to the head. At the time of discharge, he was in coma condition and he was unable to sit and work. As per the advice of the doctor, the petitioner had attended the hospital as an out patient for the purpose of follow up treatment. Since he suffered the accidental head injuries are increased, he was taken to Adarsha Hospital, Udupi and admitted there as inpatient from 11.05.2019 to 25.05.2015 and claimed compensation of Rs.26,00,000/- Respondent No.3 appeared and contested the claim petition.
5. The learned member of the Tribunal by considering all aspects of the matter with regard to the injuries sustained by the petitioner, has granted a compensation of Rs.10,31,884/- , as detailed below with interest at 6% p.a., from the date of petition till the date of realization.
Sl. No Heads Amount i Medical expenses relating to treatment and hospitalization and medicines Rs. 2,49,924=00 ii Pain and suffering Rs. 50,000=00 iii Loss of income during treatment period iv Loss of future earning capacity due to permanent disability Rs. 48,000=00 Rs. 6,48,960=00 v Conveyance Charges Rs. 5,000=00 vi Food, nourishment & attendant charges Rs. 10,000=00 vii Loss of amenities Rs. 20,000=00 TOTAL COMPENSATION AWARDED Rs.10,31,884=00 Out of the said heads, the loss of future earning capacity is granted at Rs. 6,48,960/-.
5. The learned counsel for the appellant Sri H.N. Keshava Prashanth would submit that the compensation awarded under the said head, is excessive.
6. The injured is stated to be aged about 50 years and he did not come to the Tribunal for adducing evidence and the claim petition is ought to have been dismissed by the learned member, but it came to be allowed. The petitioner has been awarded medical expenses of Rs.2,49,924/ and Rs.6,48,960/- under the head ‘Loss of future earning capacity/. In the nature of circumstances, disability and head injuries, the petitioner is entitled for the amount granted by the Tribunal under the said head.
7. On perusal of the judgment and award passed by the Tribunal it is seen that the claimant who is aged about 50 years has sustained the following injuries at the time of accident.
a. Abrasion over dorsum of left wrist.
b. Abrasion over anterior aspect left knee.
c. 5X2X2 cm lacerated wound forehead.
d. Extadural hemorrhage.
e. Fracture of left tempral partial bone.
f. Bilateral ZMC orbital wall fracture.
8. The disability is considered as 50% . The monthly income of the petitioner is taken at Rs.8000/-. It is stated that at the time of discharge, the petitioner was in coma. He has undergone surgeries between 27.11.2014 and 19.12.2014. The learned counsel – Sri Keshava Prasanth would submit that the total disability should have been reduced to 1/3 instead considering entire 52% disability. Further the learned counsel has stated that the Doctor has considered and stated because of the injuries, the petitioner has lost memory power. It is necessary to distinguish between physical disability and mental disability along with nervous disorder and psychological. No doubt the limb disability on any of the organ in the body getting disablement, has own its unique. Normally, the total disability would be 1/3 in most of the cases and any variation would be in exceptional cases wherein the physical disability is considered with reliability. In this connection, the mental or nervous disability and loss of memory may not be considered as ordinary disability.
The loss of memory not only affect the health but there are occasion wherein the loss of memory becomes cry of life.
9. In the further circumstance of the case, it may also cause loss of confidence. The loss of memory becomes further miserable. The loss of memory, mental disability and nervous disability are likely to cause overall disability. In the circumstances, the learned Member of the Tribunal has awarded the compensation as mentioned above and directed the appellant/insurance company to deposit the same.
10. The total compensation awarded by the Tribunal is Rs.10,31,884-00. which is fair just and proper. I do not find that there is merit in the appeal to continue further. The appeal is rejected.
11. The amount in deposit shall be transmitted to the Tribunal.
Sd/- JUDGE NM