IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL No.6200 of 2018 (MV-I) BETWEEN:
SRI MARIGOWDA, S/O. LATE KOMARI GOWDA, AGED ABOUT 31 YEARS, RESIDENT OF KALYA GATE, MAGADI TOWN, RAMANAGAR DISTRICT, NOW RESIDENT OF SANTHE BEEDI, KYATHASANDRA, TUMAKURU, TUMKUR TALUK AND DISTRICT – 572 101. (BY SRI M.B. RYAKHA, ADVOCATE) AND:
1. SHIVANNA, S/O. NINGAIAH, AGED NOT KNOWN TO THE APPELLANT, KALLARDAGERE GOLLARAHATTI, NITTUR HOBLI, GUBBI TALUK AND TUMKUR DISTRICT – 572 101. (OWNER OF THE AUTO RICKSHAW BEARING REG. No.KA-06-C-0410) ... APPELLANT 2. THE MANAGER, IFFCO-TOKIO GENERAL INSURANCE CO. LTD., # 2, 1ST FLOOR, S.N.R. COMPLEX, AYYAPPA TEMPLE ROAD, JALAHALLI CROSS, PEENYA, BANGALORE – 560 058.
... RESPONDENTS (BY SRI B. PRADEEP, ADVOCATE FOR R2; R1: NOTICE DISPENSED WITH VIDE COURT ORDER DATED 16/11/2018) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND AWARD DATED 14/02/2018 PASSED IN M.V.C. No.29 of 2012 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND IV M.A.C.T., TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY NATARAJAN J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is filed by the injured-claimant assailing the judgment and award dated 14/02/2018 passed in MVC No.29/2012 by the III Additional District Judge and IV MACT, Tumakuru, (hereinafter referred to as ‘Tribunal’ for the sake of convenience) seeking enhancement of compensation awarded.
3. The status of the parties before the Tribunal is retained for the purpose of convenience.
4. We have heard learned counsel for the appellant and learned counsel for respondent No.2-insurer.
5. The injured-claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘Act’ for the sake of brevity), inter alia, contending that on 07/05/2011, at 2.00 p.m., while he was standing near Sagarnahalli-Gollarahatti road along with one Shivananjaiah waiting for a bus to go to Nittur, the auto-rickshaw bearing Regn.No.KA-06/C-410 being driven by its driver with high speed in a rash and negligent manner came and dashed against him and Shivananjaiah and thereafter, the said auto-rickshaw capsized. Due to the said accident, he sustained injuries to his lower limb and spinal cord, which resulted in paraplegia. The claimant being a Carpenter was unable to work and became totally disabled. Hence, he claimed compensation of Rs.15,00,000/- on various heads.
Pursuant to the notice issued by the Tribunal, respondent No.1, owner of auto-rickshaw did not contest the matter and remained ex parte. Respondent No.2- insurer appeared through its counsel and filed written statement by denying the averments made in the claim petition, but admitted that the policy was in force as on the date of the accident. However, it was contended that the claimant was walking on the road negligently without having any vehicular traffic sense and invited the tragedy on himself, for which, he alone has to be blamed. That there was no negligence on the part of the driver of the auto-rickshaw and the vehicle was not at all involved in the said accident. It was further contended that the nature of injuries sustained, period of treatment, medical expenses and disability were all exaggerated. The claim of the claimant is also exorbitant and excessive. Hence, it prayed for dismissal of the claim petition.
6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration:
“1. Whether the claimant proves that on 07.05.2012 [sic! 07/05/2011] at about 2.00 p.m. when he was standing near Sagarahalli Gollarahatti road waiting for a bus, at that time Auto rickshaw belonging to 1st respondent bearing Reg.No.KA-06-C-410 came with high speed in a rash and negligent manner and caused accident and due to which he sustained grievous injuries?
2. Whether the 2nd respondent proves that as on the date of accident, the driver of 1st respondent was not holding proper and valid D.L. Hence, there is violation of policy conditions?
3. Whether the 2nd respondent proves that driver of 1st respondent has not admitted the injured to the hospital and not informed the police about the accident and not produced R.C., F.C. and D.L. to the insurance company. Hence there is violation of policy conditions. Hence, 2nd respondent is not liable to pay compensation amount?
4. Whether the claimant is entitled to get compensation? If so what is the quantum and who is liable to pay the compensation?
5. What order?”
7. To substantiate the contentions made in the petition, the injured claimant examined himself as PW.1 and three more witnesses as PWs.2 to 4 and got marked 15 documents as per Exs.P.1 to P.15. Respondent No.2- insurer did not lead any evidence.
8. On the basis of the evidence on record, the Tribunal answered issue No.1 in the affirmative, issue Nos.2 and 3 in the negative and awarded compensation of Rs.12,38,200/- with interest at 8% per annum from the date of petition till its realisation under the following heads:
Sl.
No.
Heads of compensation Amount 1. Towards medical expenses and incidental charges 2. Towards loss of pain and agony for receiving of one simple injury one grievous injury & one fracture Rs. 80,000/- Rs. 1,00,000/-
3. Towards loss of comfort Rs. 50,000/-
4. Towards loss of future earning capacity Rs. 9,79,200/-
5. Towards food & nourishment Rs. 4,000/-
6. Towards attendant charges Rs. 25,000/-
Total Rs.12,38,200/-
9. Assailing the judgment and award passed by the Tribunal, the injured-claimant has preferred this appeal seeking compensation of Rs.30,00,000/-.
10. Learned counsel for the appellant/claimant contended that the claimant was a carpenter earning Rs.10,000/- per month. Due to the accident, he suffered paraplegia and is now unable to stand or sit and there is no sensation below his waist. He is bed-ridden and has lost his earning capacity. Though the medical records show that he had suffered 85% of disability, but so far as his earning capacity is concerned, it should be considered as 100%. The Tribunal has considered only 85% of loss of earning capacity based on 85% of disability as per medical evidence, which is not correct. Learned counsel further contended that the Tribunal has also not considered the future prospects of the claimant. Though, future prospects has to be considered only in the case of death as per the dictum of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others reported in (2017)16 SCC 680 [Pranay Sethi], but in the latest dictum of the Hon’ble Apex Court in the case of Parminder Singh vs. New India Assurance Co. Ltd. and others [Parminder Singh] in Civil Appeal No.5123 of 2019 reported in 2019 SCC online SC 802 future prospects is considered even in injury cases. Therefore, he contended that the compensation requires to be enhanced by taking into consideration loss of future prospects. He also contended that even though the claimant has to suffer throughout his life and require the help of an attendant continuously, the Tribunal has awarded a meager amount towards food and nourishment and towards attendant charges. He further contended that the wife of the claimant was previously working and after the accident, she was forced to resign her job to take care of the claimant. Therefore, he prayed for enhancement of compensation.
11. Per contra, learned counsel for the respondent- insurer contended that there is no proof of income of the claimant produced before the Tribunal in order to consider Rs.10,000/- per month as the income of the claimant. In the absence of any document, the Tribunal considering the income of the claimant at Rs.10,000/- per month is not correct. This Court used to consider Rs.6,500/- per month for an unskilled labour for an accident of the year 2010. However, he contended that normally in the injury cases, the Court cannot consider the future prospects of the injured claimant and also contended that the compensation awarded by the Tribunal is just and proper, which does not call for any interference by this Court. Hence, he prayed for dismissal of the appeal.
12. Having heard the arguments of learned counsel for the appellant as well as learned counsel for the respondent-insurer and on perusal of the record, the points that arise for our consideration are:
“i) Whether the Tribunal is justified in awarding compensation of Rs.12,38,200/-?
ii) Whether the appellant-claimant is entitled to enhancement of compensation?
iii) What order?”
13. The claimant established the factum of the accident before the Tribunal. That on 07/05/2011, at 2.00 p.m. when the claimant and Shivananjappa were standing near Sagarnahalli-Gollarahatti road in order to go to Tiptur, at that time the auto-rickshaw bearing Regn.No.KA.06/C-410 driven by its driver in a rash and negligent manner came and dashed the claimant, due to which, he sustained injuries and was shifted to the hospital, where he took treatment. To support his case, the claimant examined himself as PW.1 and also examined three more witnesses as PWs.2 to 4 and got marked 15 documents as per Exs.P.1 to P.15. Though respondent No.2-insurer took the contention that there was no negligence on the part of the driver of the auto-rickshaw and the accident was purely due to negligence of the claimant, no evidence was let in by the respondent-insurer. Also there has been no private investigation conducted by the insurance company in this regard. On the other hand, Ex.P.1-copy of the FIR, Ex.P.2- charge sheet copy, Ex.P.3-IMV Report, Ex.P.4-Wound Certificate, Ex.P.8-case sheet clearly go to show that the accident has occurred due to the rash and negligent driving by the driver of the auto-rickshaw and the medical records Ex.P.4-wound certificate, Ex.P.5-prescription slips, Ex.P.6-medical bills, Ex.P.9-X-ray and Ex.P.10-X-rays films, Ex.P.12-CT scan report, Ex.P.13-CT scan bill, Ex.P.14-Disability Certificate go to show that due to the said accident, the claimant suffered injuries and he was under continuous treatment in the hospital and suffered disability. The respondent-insurer has not filed any appeal against the judgment and award passed by the Tribunal. Therefore, this Court is required to consider only the quantum of compensation awarded by the Tribunal.
14. The claimant stated before the Tribunal that due to the accident, he suffered disability and in support of his case, he examined PW.4-Dr. G.B.Chandan and produced the medical records contending that he has suffered disability to an extent of 85% to the whole body. Ex.P.8- inpatient record of Siddhartha Hospital and Research Center and the scanning report issued by Vikram Hospital show that the claimant suffered fracture of T3-T4 with anterior displacement of T3 over T4 compressing the spinal cord at same level. As per Ex.P.14-disability certificate issued by PW.4-Dr.G.B.Chandan, he has examined the claimant and stated that claimant is suffering from paraplegia, no-Motor movement of lower limbs with bowel and bladder dysfunction etc., and the patient requires male attendant to look after his daily activities and needs a nurse for physiotherapy to improve his living condition. According to his opinion, the claimant is suffering from 80% of disability to the whole body and he has identified the documents Ex.P.10-X-ray films, Ex.P.11-OPD slip and Ex.P.12-CT scan report. He has also identified the disability certificate as per Ex.P.14 and he also mentioned about Assessment Proforma as per Ex.P.15. Exs.P.14 and P.15 clearly show that the doctor considered the disability in detail and assessed the disability at 85% to the whole body. Nothing has been elicited from the cross- examination to disbelieve the evidence of PW.4. As per the evidence of PW.4 coupled with medical records, the claimant is successful in proving that he is suffering from disability to an extent 85% to the whole body. However, learned counsel for the claimant contended that though the disability has been assessed at 85%, the claimant is a carpenter and he has lost 100% earning capacity due to the disability. In support of his case, learned counsel also placed reliance on the decision of the Hon’ble Apex Court reported in the case of Raj Kumar vs. Ajay Kumar reported in 2011(1) SCC 343 [Raj Kumar] wherein, the Hon’ble Apex Court considered a similar case that if the claimant loses his hand or the hand of the claimant is amputated, disablement may be assessed at 60% and if the claimant is a driver or a Carpenter, the actual loss of earning capacity may virtually be 100%. The Hon’ble Apex Court considered this aspect in the case Parminder Singh. Therefore, in view of the dictum of the Apex Court in the case of Raj Kumar, even though the claimant is suffering from 85% physical disablement to the whole body, but for the purpose of assessing loss of earning capacity, it would have to be considered at 100%. The Hon’ble Apex Court also considered the loss of earning capacity of the injured-claimant therein on the basis of 100% disability and considered the loss of earning capacity at 100% in the case Parminder Singh. Therefore, we propose to consider the loss of earning capacity of the claimant to the extent of 100% in the instant case also.
15. The claimant contended that he is a carpenter by profession and was earning Rs.10,000/- per month, but no document was produced before the Tribunal. On the other hand, learned counsel for the respondent-insurer contended that the notional income of Rs.6,500/- should be considered as income of the claimant. The contention of the respondent-insurer cannot be acceptable since the notional income at Rs.6,500/- should be calculated only in the case of unskilled labour, but in this case, the claimant was a carpenter. There is no evidence from the respondent to controvert the contention of the injured claimant. Therefore, we propose to consider Rs.8,000/- per month as the income of the claimant. The Hon’ble Apex Court has considered future prospects even for the injured-claimant who suffered the disability in the case of Parminder Singh. If 40% of Rs.8,000/- i.e. Rs.3,200/- is taken into consideration, Rs.11,200/- would be the monthly income. Rs.11200 x 12 x 16 (being the appropriate multiplier), it comes to Rs.21,50,400/-. This would be loss of future earning capacity.
16. The Tribunal has awarded a sum of Rs.1,00,000/- towards pain and suffering. It does not call for interference or enhancement and the same is retained. As per the medical records, the claimant has calculated the expenditure towards treatment at Rs.62,000/-. Therefore, we propose to award Rs.62,000/- towards medical expenses. The Tribunal has awarded Rs.50,000/- towards loss of comfort. We are of the view that the said amount is meager. Since the claimant suffered paraplegia and is bed-ridden and he has to suffer throughout his life, we propose to award Rs.1,00,000/- towards loss of amenities instead of Rs.50,000/- only awarded by the Tribunal.
17. From the record, it is noted that the claimant has established that he was under continuous treatment and has undergone surgeries while he was admitted in the hospital for a longer period, but the Tribunal has not awarded any amount. Therefore, we propose to award Rs.50,000/- towards incidental charges during the period of hospitalisation including food and nourishment etc. The Tribunal has awarded Rs.25,000/- towards attendant charges, but failed to consider the fact that the claimant is suffering from paraplegia due to the injuries and he is bed- ridden. Therefore, a male attendant and proper nourishment is required throughout his life as per the evidences of PW.4-Doctor, the wife of the claimant as well as the evidence of the claimant himself. Even if he engages any male nurse by paying Rs.2,000/- per month for 10 years, he may require Rs.2,00,000/- towards attendant charges. Therefore, by considering the facts and circumstances, we propose to award Rs.2,00,000/- towards attendant charges instead of Rs.25,000/- as awarded by the Tribunal.
18. In all, the claimant is entitled to the re-assessed compensation as under:
Heads Compensation awarded by this Court
Loss of future earning at the rate of 6% per annum from the date of claim petition till realisation instead of 8% per annum as ordered by the Tribunal.
80% of the compensation awarded to the appellant shall be deposited in a Fixed Deposit in any Post-Office and/or Nationalised Bank for an initial period of ten years and he shall be entitled to draw periodical interest on the said deposit. The remaining compensation shall be released to him, after due identification.
Respondent-insurance company shall deposit the balance compensation amount with interest within a period of four weeks’ from the date of receipt of a certified copy of this judgment.
The appeal is allowed in-part in the aforesaid terms. Parties to bear their respective costs.
Office to return the lower Court record to the concerned Tribunal, forthwith.
Sd/- JUDGE Sd/- JUDGE mv