IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY M.F.A.NO.3569/2016(MV-I) C/W M.F.A.NO.4867/2016(MV-I) M.F.A.NO.3569/2016 BETWEEN SRI HANUMANTHARAJU B S/O BYLAPPA AGED 45 YEARS R/AT. NO.T-2, MAHIMA RESIDENCY SITE NO.82-83 M.S. PALYA NEAR LONDOM HOSPITAL VIDYARANYAPURA POST BANGALORE-97 ...APPELLANT (BY SRI KESHAVA MURTHY C.N, ADVOCATE) AND 1. SRI M AKRAM PASHA AGED 45 YEARS NO.9, 6TH CROSS, BRINDAVAN NAGAR MATHIKERE, BANGALORE-54 (OWNER OF THE OMNI CAR) 2. ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., REPRESENTED BY ITS MANAGER FVR COMPLEX, HOSUR MAIN ROAD MADIWALA BANGALORE-560 068 …RESPONDENTS (BY SRI D.T.NANJESH GOWDA, ADVOCATE FOR R1 SRI D.MANJUNATH, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.03.2016 PASSED IN MVC NO.5024/2010 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
M.F.A.NO.4867/2016 BETWEEN:
ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED, FVR COMPLEX, HOSSUR MAIN ROAD, MADIWALA BANGALORE-560 068 NOW AT:
#121, THE ESTATE BUILDING, 9TH FLOOR, DICKSON ROAD, BANGALORE-560 001.
REPRESENTED BY THE MANAGER-LEGAL ...APPELLANT (BY SRI D MANJUNATH, ADVOCATE) AND 1. HANUMANTHA RAJU S/O BYLAPPA, AGED ABOUT 48 YEARS, NO.T-2, MAHIMA RESIDENCY SITE, NO.82483, M.S.PALYA NEAR LOMDOM HOSPITAL VIDYARANYAPURA POST BANGALORE-560 097.
2. M.AKRAM PASHA R/AT NO.9, 6TH CROSS, BRINDAVAN NAGAR, MATHIKERE, BANGALORE-560 054.
3. AZMATHULLA OWNER OF KARNATAKA TRADING CORPORATION MASJID-E-JAMIYA COMPLEX A.C.POST, HEGDENAGAR BANGALORE. …RESPONDENTS (BY SRI KESHAVA MURTHY.C.N, ADVOCATE FOR C/R1, SRI D.T.NANJESH GOWDA, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.3.2016 PASSED IN MVC NO.5024/2010 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, CHIEF JUDGE, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.31,64,896/- WITH INTEREST @ 9% P.A FROM THE DATE OF PETITION TILL REALISATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT Claimant and insurer - contesting respondent in MVC.No.5024/2010 on the file of Member, Principal Motor Accident Claims Tribunal and Chief Judge, Court of Small Causes, Bengaluru, (for short ‘ Tribunal’) have come up in these two appeals.
(a) The appeal in MFA.No.3569/2016 is by the claimant before the Tribunal seeking enhancement of compensation on the ground that the compensation awarded under the head loss of future income, pain and suffering, amenities, expenses for future treatment, attendant charges, conveyance and other miscellaneous expenses, is on lower side.
(b) Per contra, the appeal in MFA.No.4867/2016 is by the insurer/contesting respondent before the Tribunal on the ground that the compensation awarded by the Tribunal under the head loss of income on account of disability is on the higher side and the same is calculated without taking into account the pensionary benefits provided to him on monthly basis which works out to a substantial sum around Rs.15,000/- per month.
2. Though these two appeals are at the stage of admission, since the lower court is already received, with the consent of learned counsel appearing for the appellant in both the appeals, who are claimant and contesting respondent before the Tribunal, they are taken up for final disposal.
3. Brief facts leading to these two appeals are as under:
Claimant – Hanumantharaju was working as Sub Inspector in CRPF, Yelahanka Base, Doddaballapur Main Road, Bengaluru. That on 10.5.2010 at about 1.45 pm., he met with an accident within the premises of CRPF Campus involving Maruthi Omni bearing registration No.KA- 04/C.826 resulting in fracture of femur and other related injuries to his left leg as well as left hand. The medical record would indicate that he was admitted to Hospital on three different occasions for nearly 15 days immediately after the accident where he underwent surgery to his left leg. It is stated that because of the injuries and stress, he has also suffered heart attack. It is in this background, he was under prolonged treatment in incurring medical expenses of more than Rs.3,00,000/-. Thereafter, claim petition was filed by him seeking compensation for the injuries suffered in the said accident.
4. In the proceedings before the Tribunal, the claimant adduced evidence as PW.1 and he also adduced evidence through two other witnesses. PW.1- Mr.Mariya Das, is Record Keeper of CRPF Campus Hospital, where claimant was provided treatment and PW.2 - Dr.C.S.Albal, is the doctor who treated him when he was inpatient in Command Hospital. One Dr Shankar R.Krupad of Columbia Asia Hospital, where claimant was inpatient on more than two occasions, was also examined through commission as CW.1. In support of his claim, the claimant has also produced in all 21 documents which are at Exs.P1 to P21.
5. In the said proceedings, the respondent – insurer opposed the claim denying all the petition averments and also the right of claimant to seek compensation. In support of that, two witnesses are examined as RWs.1 and 2 and 4 documents are marked as Exs.R1 to R4. Thereafter, the Tribunal on appreciation of the pleadings and evidence available on record proceeded to allow the claim petition awarding compensation to the claimant in a sum of Rs.31,64,896/- payable with interest at 9% pa., from the date of petition till date of realization. However, the claimant being aggrieved by the quantum of compensation has come up in one appeal as stated supra seeking enhancement of compensation.
6. Simultaneously, another appeal is filed by the insurer contending that the compensation awarded is on higher side, particularly under the head loss of income on account of disability which includes loss of income during laid up period. In fact, though in the appeal memo, the grounds are not elaborated in detail, at the time of arguments learned counsel for the contesting respondent before the Tribunal, the appellant in second appeal would contend that a grave error is committed by the Tribunal in not taking into consideration the monthly pension which is fixed to the claimant subsequent to his termination from the post of Sub Inspector in the light of the report submitted by the Board regarding claimant’s inability to continue his services as Sub Inspector in CRPF.
7. Heard the learned counsel for the parties in both the appeals. Perused the lower court record. On going through the same it is seen that the accident is not in dispute. So also injuries suffered by the claimant and the treatment provided to him. However, when it comes to compensation awarded by the Tribunal, the same appears to be erroneous in not taking into account all the materials that are placed on record by the parties.
8. Admittedly, as on the date of accident the claimant was gainfully employed as Sub Inspector in CRPF with monthly income of Rs.36,231/-. It is seen that for nearly 1½ years’ he was on leave since he was not in a position to attend to his job. But during that period his absence is taken as leave and he was also paid salary to the said period. Thereafter, proceedings were initiated before the Board, where it was held that he is not in a position to continue as Sub Inspector. Subsequently, he is not working in CRPF and he is out of service with a pension being fixed to him at Rs.15,247/-. Though it is seen that he is not in service, whether his discontinuation from service is at the request of claimant himself due to his inability to work as Sub Inspector and not willing to accept any other suitable job in the said Department or whether the same is not offered to him by the Department, is not seen in the evidence placed on record. In any event, what is seen is that the claimant is not in service and his pension is fixed at Rs.15,247/- p.m., in indicating that he is no longer in the services of CRPF.
9. It is in this background, the Tribunal has calculated the compensation which is required to be considered for loss of income on account of disability. For that, the income of injured/claimant is taken at 50% of his monthly income (monthly income taken is Rs.33,761/-). While doing so, the Tribunal has not looked into the fact that the injured/claimant after discontinuing from service was provided with pensionary benefits which works out to Rs.15,247/- per month as on 2012. However, the tribunal by applying relevant multiplier of 14 to 50% of the monthly income of the injured, has awarded compensation in a sum of Rs.28,35,840/- under the head loss of income due to disability. The judgment of Tribunal also indicates that this amount also includes loss of income during the period of treatment and amenities. So far as loss of income during treatment period is concerned, awarding of any compensation is incorrect for the reason that, for nearly 1½ years’ after the accident, the claimant was given full pay as could be seen from the material on record. Therefore, there is serious error committed by the Tribunal in calculating the loss of income on account of disability.
10. It is seen that, the Tribunal has also committed an error in not considering the right compensation that could be awarded under the head injury, pain and suffering, for which a paltry sum of Rs.50,000/- is awarded. So also under the head attendant, conveyance and miscellaneous expenses at Rs.15,000/-. Further, towards future medical expenses what is awarded is Rs.50,000/- as against the evidence of PW.3 and CW.1, where they have opined that the claimant is required to spend an additional sum of Rs.2,50,000/- towards future medical expenses, which is not awarded.
11. In that view of the matter, this Court feel that the compensation which is erroneously assessed by the Tribunal is required to be re-assessed. Accordingly, without looking into the manner in which the compensation is awarded by the Tribunal, this Court would re-assess the same as under relying upon the lower court record made available:
In the instant case admittedly, the claimant has suffered injuries which has led to his hospitalization and also confinement to bed for more than 1½ years’, during which period he was not able to attend to his work on day- to-day basis and he had to survive with the help of attendant. Therefore, for injury, pain and suffering a sum of Rs.1,00,000/- is awarded as against Rs.50,000/- awarded by the Tribunal. So far as medical expenses which is awarded at Rs.2,14,056/- appears to be just and proper, which does not call for interference by this Court. Regarding compensation awarded towards attendant charges, conveyance and other miscellaneous expenses is concerned, the same is increased from Rs.15,000/- to Rs.50,000/-. So far as future medical expenses is concerned, the same is increased from Rs.50,000/- to Rs.1,00,000/-. So far as loss of amenities is concerned, it is seen that the same is included in the compensation awarded under the head loss of income on account of disability and no separate compensation is awarded under that head. Hence, the same is awarded at Rs.1,00,000/-.
12. Besides this, so far as loss of future earning capacity of claimant is concerned, it is calculated as under:
Admittedly, as on the date of accident his salary was Rs.36,231/-. When he discontinued his service, his pension was fixed at Rs.15,247/- pm. In effect, what was loss for him is Rs.20,984/-. However, this entire income cannot be taken as loss of future earning capacity for the reason that, the opinion of Medical Board which recommended for invalidating his services is in indicating that his loss of earning capacity is 61.94%. Therefore, if 61.94% of Rs.20,984/- is calculated, it would come to Rs.12,997.48 pm., and Rs.1,55,969.87 p.a. Thereafter, if the same is multiplied by relevant multiplier 14, the loss of income on account of disability would come to Rs.21,83,578.25.
13. If the compensation calculated under various other heads and the compensation awarded towards loss of income on account of disability are clubbed together, the total compensation the claimant would be entitled to is Rs.27,47,634.25 which is rounded off to Rs.27,47,700/-, which the claimant would be entitled to receive with interest at 6% pa., from the date of petition till date of deposit of entire amount.
14. Accordingly, the appeals filed by the claimant as well as contesting respondent – insurer are allowed partially and disposed of in aforesaid manner.
15. The amount in deposit is ordered to be sent to Tribunal for disbursement to the claimant.
Sd/- JUDGE nd/-
Sd/- JUDGE