IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 1605 OF 2015 (MV) CONNECTED WITH MFA NO. 136 OF 2015 (MV) MFA NO. 1605 OF 2015 BETWEEN SACHIN K R S/O K V RAVINDRA BABU AGED ABOUT 17 YEARS SINCE MINOR REPRESENTED BY HIS FATHER K. V. RAVINDRA BABU S/O LATE K.V. VEERAPPA AGED ABOUT 47 YEARS NO.73, 6TH CROSS NETHAJI EXTENSION 2ND STAGE, VIJAY NAGAR BANGALORE – 560 040. …APPELLANT [VIDE COURT ORDER DATED 08.08.2018 GUARDIAN IS DISCHARGED] (BY SRI. K. SHANTHARAJ - ADVOCATE) AND 1. THE ORIENTAL NATIONAL INSURANCE CO., LTD., REGIONAL OFFICE LEO SHOPPING COMPLEX RESIDENCY ROAD CROSS M G ROAD BANGALORE -560 001.
2. R. LOKESH S/O C. SHANTHAMMA AGE MAJOR NO: 409, BORE GOWDA NAGAR NEW TIMBER LAYOUT MYSORE ROAD BANGALORE – 560 039. ... RESPONDENTS (BY SRI K. SURESH – ADVOCATE FOR R-1; NOTICE TO R-2 DISPENSED WITH VIDE COURT ORDER DATED 24.01.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.8.2014 PASSED IN MVC NO. 446/2013 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
MFA NO. 136 OF 2015 BETWEEN M/S. THE ORIENTAL INSURANCE COMPANY LIMITED REGIONAL OFFICE LEO SHOPPING COMPLEX RESIDENCY ROAD CROSS M G ROAD BANGALORE -560 025 REPRESENTED BY ITS REGIONAL MANAGER. … APPELLANT (BY SRI K. SURESH – ADVOCATE) AND 1. K. R. SACHIN S/O SRI K. V. RAVINDRA BABU AGED ABOUT 16 YEARS SINCE MINOR REPRESENTED BY FATHER SRI K. V. RAVINDRA BABU S/O LATE SRI K. VEERAPPA AGED ABOUT 46 YEARS NO.73, 6TH CROSS NETHAJI EXTENSION 2ND STAGE, VIJAYANAGAR BANGALORE – 560 040.
2. SRI R. LOKESH S/O SMT. C. SHANTHAMMA MAJOR NO: 409, BOREGOWDA NAGAR NEW TIMBER LAYOUT MYSORE ROAD BANGALORE – 560 026. ... RESPONDENTS (BY SRI K. SHANTHARAJ – ADVOCATE FOR R-1; SERVICE OF NOTICE TO R-2 IS DEEMED TO BE COMPLETE VIDE COURT ORDER DATED 18.08.2017) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.8.2014 PASSED IN MVC NO. 446/2013 ON THE FILE OF THE XVIII ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-4, BANGALORE, AWARDING COMPENSATION OF RS.7,70,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THESE MFAs COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the matters are listed for admission, with the consent of the learned counsel for both the parties, both the appeals which arise out of the same judgment and award are taken up for final disposal and are hereby disposed of by this common judgment.
2. The appeal in MFA No.1605/2015 has been preferred by the claimant – Sachin K.R., seeking for enhancement of the compensation awarded by the Tribunal by its order dated 13.08.2014 in MVC No.446/2013. The appeal in MFA No.135/2015 has been preferred by the Insurance Company namely, M/s. Oriental Insurance Company Ltd., challenging the liability fastened on it and also the quantum of compensation awarded by the Tribunal in the same judgment.
3. Heard the learned counsel for the claimant and the learned counsel for the Insurance Company and perused the records. Notice to Respondent No.2 - the owner of the offending vehicle has been dispensed with by this court in both the appeals.
4. The factual matrix is that on 15.09.2012 at about 7.45 a.m. when the petitioner / appellant who was aged about 15 years was riding a bicycle and was proceeding on the left side of Major Sandeep Unnikrishna road, at that time, the driver of a milk tanker bearing Regn.No.MH-06-K-6365 had come at a high speed and in a rash and negligent manner and dashed against the bicycle, as a result of which the boy was thrown from his bicycle and sustained grievous injuries. Thereafter he was admitted to hospital and was provided treatment. His parents had spent a huge amount towards the treatment of his injuries. Hence, the appellant had filed a claim petition before the Tribunal seeking compensation.
5. On service of notice, the owner of the offending vehicle – Respondent No.2 in both the appeals remained exparte. However, the Insurance Company appeared through counsel and filed its written statement denying that the accident had occurred due to the negligence of the driver of the offending vehicle and also denying the entire petition averments. Further, it was contended that the driver of the offending vehicle did not possess valid and effective driving licence. But however, it admitted the issuance of the insurance policy in respect of the offending vehicle and its validity as on the date of the accident. However, it was contended that their liability was subject to the terms and conditions of the policy. Hence, the Insurance Company prayed for dismissal of the claim petition.
Based upon the contentions of the parties, the Tribunal framed the issues. In order to establish their case, the petitioner got himself examined as PW1 and got examined the Doctor as PW2 and got marked 14 documents as per Exhibits P1 to P14. The Insurance Company examined its Administrative Officer P. Parimala as RW-1 and got marked Exhibits R1 to R5.
6. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the offending vehicle. The injured was an adolescent boy aged 15 years who was studying SSLC at the time of the accident. Apart from being a student, he was also doing milk vending job and was earning a sum of Rs.6,000/- per month. It is stated that he was a very good student and he having met with an accident at the crucial stage his life, has resulted in ruining his bright future as a whole. Further, due to the accident, the said boy has suffered severe fracture of pelvis bones and fracture of acetabulum involving hip joint and his sexual capacity is also lost due to the said fracture and has also lost strength in his waist and hips and cannot sit, stand or walk properly for long time, cannot use Indian toilet and cannot bend his body to any side. It is a permanent disability. His thighs have also become disfigured. He had to undergo acute pain and suffering and discomfort due to the accident at such a tender age. Further, he also had to undergo continuous medical treatment in view of the wounds and fracture. Moreover, his marriage prospects were also remote. Hence, considering all these aspects, the Tribunal had awarded a total compensation of Rs.7,70,000/- with interest at 6% per annum from the date of petition till the date of deposit. It is this judgment which is under challenge in these appeals.
7. The learned counsel appearing for the claimant / appellant contended that the compensation awarded by the Tribunal is highly inadequate, having regard to the gravity of the injuries suffered by the claimant. He contends that PW-2 Doctor though has assessed the total disability of his left lower limb at 41% and the total disability of the whole body at 19.3%, the compensation awarded by the Tribunal under the head ‘Permanent disability’ is very much on the lower side and requires to be considerably enhanced. The learned counsel contends that the Tribunal has lost sight of the fact that the injured has totally lost his physical capacity to carry out his day to day work and has completely lost his earning capacity on account of permanent disability.
Further, the injured was fixed with implants and he had to undergo surgery for removal of implants apart from follow up treatment. Though it is well settled law that liberal award has to be granted to persons involved in road traffic accidents, particularly to persons suffering from fixation of implants, the Tribunal has granted only a sum of Rs.50,000/- towards ‘Future medical expenses’, which requires to be enhanced.
Further, since he had suffered severe fracture of pelvis bones and fracture of acetabulum involving hip joint and his sexual capacity also having been lost due to the said fracture, the Tribunal ought to have awarded compensation magnanimously towards ‘future marriage prospects’. Hence, he contends that the compensation granted towards the said head also requires to be enhanced.
The learned counsel for the claimant hence contends that the compensation awarded by the Tribunal under all the above heads requires to be increased having regard to the gravity of the injuries suffered by the claimant. Hence, the learned counsel contends that the appellant’s appeal in MFA No.1605/2015 be allowed and the compensation awarded by the Tribunal may be considerably enhanced. Further, that the appeal filed by the Insurance Company in MFA No.136/2015 be dismissed.
8. Per contra, the learned counsel for the Insurance Company vehemently contended that the tribunal has erred in fixing the liability on the Insurance Company to pay the compensation when the offending vehicle, namely Milk Tanker did not have a valid and effective fitness certificate to ply on the road. Further, he contended that the Tribunal erred in granting higher compensation of Rs.70,000/- towards ‘Pain and suffering’, Rs.40,000/- towards ‘Loss of amenities’ and Rs.3,75,000/- towards medical and incidental charges. Further, that the Tribunal committed an error in awarding higher compensation of Rs.2,05,000/- towards permanent disability in the absence of any documents to show that the claimant was put to any financial loss. Further, that the Tribunal also erred in granting higher compensation towards ‘Loss of future marriage prospects’ and ‘Future medical expenses’ in spite of absence of any proof. Thus, the learned counsel for the Insurance Company contended that the compensation awarded to the claimant under all the heads being exorbitant, the same requires to be considerably reduced. Hence, the learned counsel contends that the appeal in MFA No.136/2015 filed by the Insurance Company be allowed and the impugned judgment and award be set aside by reducing the compensation awarded proportionately and the appeal in MFA No.1605/2015 filed by the claimants for enhancement of compensation be dismissed.
9. On careful evaluation of the material on record, it is seen that the Tribunal has not adopted the multiplier method to arrive at the compensation to be awarded to the claimant nor has it adopted any norms. It is seen that the Tribunal has proceeded to grant compensation globally on each of the heads without following any norms. Hence, I find that it would be just and proper to adopt multiplier method to arrive at the compensation, since having regard the nature of the injuries and suffering that the boy had undergone at such a tender age, I find that the compensation awarded requires to be enhanced.
The accident had occurred on 15.09.2012. The injured was a student aged about 15 years at the relevant point of time. Due to the accident, he had sustained the following injuries, as per the Wound Certificate at Exhibit P6:
1. Unstable pelvic fracture 2. Fracture acetabulum involving hip joint 3. Deep degloving lacerated wound 20 cm x 10 cm over left anterior thigh 4. Deep lacerated wound 15cm x 5 cm, over right thigh 5. Deep lacerated wound over right ankle over T-A tendon 6. Abrasions all over the body 10. Since PW-2 Doctor has assessed the total disability of his left lower limb at 41% and the total disability of the whole body at 19.3%, having regard to the nature of injuries suffered by the boy, I find that the whole body disability of the injured could be taken at 25%, to re-calculate the compensation to be awarded towards ‘Permanent disability’.
The accident is of the year 2012. For an accident of the year 2012, the monthly income of the injured can be safely taken between Rs.7,000/- and Rs.8,000/-. In the present case on hand, his monthly income is taken at Rs.8,000/-. Further, since he was aged 15 years, the appropriate multiplier would be ‘18’.
Hence, with the monthly income at Rs.8,000/- and adopting the multiplier at ‘18’ and the disability at 25%, the compensation towards ‘Permanent disability’ would come to Rs.4,32,000/- (8000 x 12 x 25% x 18).
Further, having regard to the fact that he had suffered ‘unstable pelvic fracture’ and ‘fracture of acatabulum involving hip joint’ and having regard to the fact that his future sexual life being at stake, it results in his future marriage prospects being very remote. Hence, I find that an additional amount requires to be granted towards ‘Loss of Future marriage prospects’. Hence, I award a sum of Rs.20,000/- in addition to Rs.30,000/- awarded by the Tribunal towards ‘Loss of Future marriage prospects’, which would totally come to Rs.50,000/-.
11. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Accordingly, I pass the following:
O R D E R The appeal in MFA No.1605/2015 is allowed in part. In modification of the impugned judgment and award dated 13.08.2014 passed by the Tribunal in MVC No.446/2013, the compensation payable to the appellant / claimant is hereby enhanced from Rs.7,70,000/- to Rs.10,17,000/-. The enhanced compensation would come to Rs.2,47,000/-.
In view of the decision of the Apex Court in PAPPU AND ORS. Vs. VINOD KUMAR LAMHA AND ANR. (AIR 2018 SC 592), the Insurer is required to pay the compensation awarded by the Tribunal and then would have to recover the same from the owner of the offending vehicle. Hence, the connected MFA.No.136/2015 filed by the Insurance Company also stands partly allowed.
The compensation awarded by the Tribunal along with the compensation enhanced by this court shall be paid and satisfied by the insurer – M/s. Oriental Insurance Company Limited in the first instance, with liberty to recover the same from the owner of the offending milk tanker – Respondent No.2, in accordance with law.
The insurer shall deposit the enhanced compensation along with interest, before the tribunal within four weeks. The amount already deposited, shall be adjusted. The same shall be disbursed to the claimant as per the award, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest, apportionment and deposit is concerned, shall remain unaltered.
Amount in deposit if any in this appeal, shall be transmitted to the concerned tribunal forthwith, along with LCR.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS