IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 5263 OF 2016 (MV) CONNECTED WITH MFA NO. 5386 OF 2016 (MV) IN MFA NO. 5263/2016 BETWEEN TEJASWINI .S D/O SHIVAJI AGED ABOUT 22 YEARS B.E 5TH SEMESTER STUDENT R/O MANJULA NILAYA, 1ST CROSS S.S. BADAVANE, A-BLOCK DAVANAGERE TALUK-577001.
... APPELLANT (BY SMT. SARITHA KULKARNI - ADVOCATE) AND 1. ABDUL SAMAD S/O SYED SAB SUNKAD 51 YEARS R/O D. NO.972, NEW CAMP 2ND MAIN, 4TH CROSS SJM DAVANGERE-577001.
2. A. ARIPULLA S/O A. AMANULLA MAJOR, R/O 18TH CROSS KTJ NAGAR, DAVANAGERE-577001.
3. THE MANAGER ORIENTAL INSURANCE CO., LTD., BRANCH OFFICE NO.823/7, THILUVALLI COMPLEX NEAR ARUNA TALKIES 1ST FLOOR, P.B. ROAD P.B. ROAD, DAVANGERE-577001.
... RESPONDENTS (BY SRI. S.V. HEGDE MULKHAND – ADV., FOR R-3; NOTICE TO R-1 & R-2 IS DISPENSED WITH) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.06.2016 PASSED IN MVC NO. 785/14 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND 5TH MACT, DAVANGERE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA NO. 5386/2016 BETWEEN THE MANAGER THE ORIENTAL INSURANCE CO., LTD., BRANCH OFFICE D.NO.823/7 THILUVALLI COMPLEX NEAR ARUNA TALKIES 1ST FLOOR, P.B. ROAD P.B. ROAD, DAVANGERE THROUGH ITS HUBBALLI REGIONAL OFFICE LAMINGTON ROAD HUBALLI – 580020 REPRESENTED BY ITS DEPUTY MANAGER.
… APPELLANT (BY SRI. S.V. HEGDE MULKHAND – ADV.,) AND 1. TEJASWINI .S D/O SHIVAJI AGED ABOUT 22 YEARS R/O MANJULA NILAYA, 1ST CROSS S.S. BADAVANE, A-BLOCK DAVANAGERE TALUK-577001.
2. ABDUL SAMAD S/O SYED SAB SUNKAD MAJOR IN AGE R/O D. NO.972, NEW CAMP 2ND MAIN, 4TH CROSS SJM NAGAR, DAVANGERE-577001.
3. A. ARIPULLA S/O A. AMANULLA MAJOR, R/O 17/C-5229 18TH CROSS, KTJ NAGAR DAVANAGERE-577001.
… RESPONDENTS (BY SMT. SARITHA KULKARNI – ADV., FOR R-1; R-2 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.06.2016 PASSED IN MVC NO. 785/14 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE AND 5TH MACT, DAVANGERE, AWARDING COMPENSATION OF RS. 10,58,800/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.
THESE APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Since both the appeals arise out of the same judgment and award rendered by the Tribunal, they are heard together and are finally disposed of by this order.
2. The appeal in MFA.No.5263/2016 is filed by the claimant – appellant who is the injured seeking enhancement of compensation awarded by the Tribunal and the appeal in MFA.No.5386/2016 is filed by the appellant Insurer – Oriental Insurance Co. Ltd. challenging the quantum of compensation awarded by the Tribunal as well as the liability. By its judgment dated 04.06.2016 in MVC No.785/2014, the Tribunal has awarded compensation in a sum of Rs.10,58,800/- to the claimant - injured. Being not satisfied with the said compensation, the claimant has filed MFA No.5263/2016 seeking enhancement of compensation.
3. Heard the learned counsel for the claimant – appellant in MFA No.5263/2016 as well as the learned counsel for the appellant in MFA No.5386/2016 – Oriental Insurance Company Ltd. and perused the impugned judgment as well as the material on record.
4. The factual matrix is as follows:
The claimant was a B.E. 5th Semester student at BIET College Davanagere as on the date of the accident i.e., on 08.08.2013. The claimant as usual, on 08.08.2013 after closing of her college hours was proceeding home in her Honda Activa vehicle bearing Reg.No.KA-17-EG-8714. When she neared the service road of Shamanur village, Davanagere City at about 3.45 p.m., at that time, Respondent No.1 – driver of the lorry bearing Reg.No.KA-17-C-5229 who was driving it at a high speed and in a rash and negligent manner, dashed to the claimant’s vehicle and thereby caused the accident. Due to the impact, the claimant sustained grievous injuries namely abrasion over the left hand, chest, both femur and other parts of the body. Immediately she was shifted to CG Hospital, Davanagere for first aid and thereafter was shifted to SSIMS Hospital, Davanagere, wherein she took treatment as an in-patient from 8.8.2013 to 09.08.2013. However, she was not cured fully and hence had taken further treatment at Manipal Hospital, Bangalore, as an in-patient from 9.8.2013 to 25.08.2013. It is stated that she totally spent a sum of Rs.8,00,000/- towards medical expenses. Hence, she filed a claim petition before the Tribunal seeking compensation.
5. After service of notice, the driver as well as the owner of the offending lorry remained absent and were placed exparte. However, the insurer appeared through counsel and filed its objection contesting the claim petition. He contended that the claim petition was false, frivolous, vexatious and untenable in the eye of law. Further, it was contended that the policy was issued in respect of ‘Public carriers other than three wheelers package’ and hence, the Insurer was not liable to compensate the claimant. During the enquiry before the tribunal, the claimant had established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
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 lorry. Taking the income of the deceased at Rs.9,000/- and the disability at 20% and applying multiplier ‘19’, the Tribunal arrived at Rs.4,10,400/- as the ‘Future loss of income’. Granting compensation under all the relevant heads, in all, the Tribunal awarded a compensation of Rs.10,58,800/- with interest at 6% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in these appeals.
7. The learned counsel for the claimant strenuously contended that due to the accident, the appellant sustained abrasion over left hand and both the foot, tenderness over the hip and pelvic movements have become painful and restricted, injuries to the chest, fracture of both femur bone, fracture of bihaterc pubic rami, pubic symphysis, diastasis and rupture of urethra and other injuries. When she was admitted as an in-patient in Manipal Hospital from 9.8.2013 to 25.08.2013, she had undergone open reduction and internal fixation pubic symphysis with reconstruction plate and screws and further she had undergone endoscopic rail roading of urethra and incision and drainage of right thigh abscess and had undergone great suffering apart from spending a huge amount of money towards medical expenses. As a result of the said grievous injuries, the learned counsel contends that the compensation granted by the Tribunal towards ‘pain and suffering’, ‘Loss of amenities’ and other heads are certainly on the lower side and require to be enhanced suitably.
Further, due to the pain and suffering and discomfort that she suffered, she could not pursue her education successfully and hence the compensation towards ‘Loss of educational prospects’ also requires to be enhanced suitably. Hence in view of the suffering undergone by the claimant and the huge amount spent, the learned counsel prays that the compensation awarded by the Tribunal be enhanced suitably.
8. Per contra, the learned counsel appearing for the appellant in MFA No.5386/2016 – Insurance Company vehemently contended that though the claimant was said to be V Semester Engineering student at the time of the accident, she has not produced any material to prove that she was studying in the BIET College, Davanagere. There is also no certificate to evidence the fact that she was a meritorious student who had cleared all her previous semesters successfully. When there was no material even to prove the fact that she was an Engineering student, the Tribunal has erred in taking her monthly income at Rs.9,000/- to compute the compensation towards ‘Future loss of income’. It is his further contention that the Tribunal has applied the wrong multiplier. Instead of applying the appropriate multiplier at ‘18’, the Tribunal has proceeded to apply multiplier ‘19’ to compute the compensation towards ‘Future loss of income’. Further, he contends that the Doctor examined has assessed the limb disability at 40%. In view of the same, the whole body disability works out to 14%. Instead of applying 14% as the disability to the whole body, the Tribunal has at its whim and fancy, assessed 20% disability to the while body in order to compute the compensation towards ‘Future loss of income’. Further, the Tribunal has erred in granting exorbitant amount towards ‘medical expenses’, ‘loss of income during laid up period’ and under other heads. Hence, he contends that the appeal filed by the Insurance Company be allowed and the compensation awarded by the Tribunal be suitably reduced.
9. On a careful evaluation of the material on record, and in view of the contentions put forth by the learned counsel for the parties, I find that the Tribunal has adopted the income of the injured at a slightly higher figure. It is not her case that she had completed her Engineering course at the time of the accident. The claimant was just an Engineering student and it is not also known as to whether she completed her course and obtained a Professional degree or not. When such being the case, the Tribunal was wrong in adopting her monthly income at Rs.9,000/-. I find it just and proper to take her income at Rs.8,000/- per month. Further, the multiplier taken at ‘19’ is also an error committed by the Tribunal and requires to be rectified in this appeal. Having regard to the fact that she was aged 20 years at the time of the accident, the multiplier is hereby taken at ‘18’. Further, when there is clear evidence of the Doctor that the claimant had suffered 40% disability to her limb, Tribunal ought to have applied the whole body disability at 13% to award compensation towards ‘Future loss of income’, which is also an error which requires interference in this appeal. Hence, the whole body disability is hereby taken at 13% instead of 20%. Hence, taking the income of the injured at Rs.8,000/- and the whole body disability at 13% and applying ‘18’ as the multiplier, the compensation towards ‘Future loss of income’ comes to Rs.2,24,640/-
(8000 x 12 x 13/100 x 18) as against Rs.4,10,400/- awarded by the Tribunal.
Further, the injured had not attended college for a minimum period of three months. Hence, the compensation towards ‘Loss of income during laid off period and rest’ is awarded at Rs.24,000/- (Rs.8000 x3) as against Rs.23,400/- awarded by the Tribunal.
In view of the grievous injuries suffered, she would have undergone untold pain and misery. Hence, the compensation towards ‘Injury, pain and suffering’ is hereby enhanced by another Rs.20,000/-. Hence, the compensation towards the said head comes to Rs.50,000/- as against Rs.30,000/- awarded by the Tribunal.
In view of the fact that the claimant’s studies has been affected due to the accident, I find it just and proper to enhance the compensation towards ‘Loss of educational prospects’ by another Rs.10,000/-. Hence, the compensation towards the said head comes to Rs.20,000/- as against Rs.10,000/- awarded by the Tribunal.
Further, as regards ‘Loss of amenities and discomfort’, the compensation is enhanced by another Rs.10,000/-. Hence, the compensation towards the said head comes to Rs.30,000/- as against Rs.20,000/- awarded by the Tribunal.
10. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:-
Injury, pain and sufferings 30,000 20,000 50,000 Future loss of income Loss of 1,85,760 4,10,400 (Compensati on reduced by this Court) 2,24,640 educational prospects Loss of amenities and discomfort 10,000 10,000 20,000 20,000 10,000 30,000 COMPENSA TION TOTAL 10,58,800 REDUCED BY Rs.95,160/-
9,63,640 Thus, in all, the claimant / appellant in MFA No.5263/2016 is entitled to a total compensation of Rs.9,63,640/- as against Rs.10,58,800/- awarded by the tribunal. The reduced compensation would be Rs.95,160/-.
Accordingly, I pass the following:
O R D E R Accordingly, both the appeals are allowed in part. In modification of the impugned judgment and award dated 04.06.2016 passed by the Tribunal in MVC No.785/2014, the compensation payable to the claimant is reduced from Rs.10,58,800/- to Rs.9,63,640/-. The reduced compensation would come to Rs.95,160/-. The amount already in deposit before this Court shall be transmitted to the concerned MACT forthwith. The Insurer – Oriental Insurance Company Ltd. shall deposit the difference amount if any, before the Tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant in terms of 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.
If any amount has been deposited in excess, the same shall be refunded to the Insurance company.
Office to draw the decree accordingly.
SD/- JUDGE KS