Partly allowed

Mallikarjun Sadashiv Lohar v. Abdul Aziz S/O. Muneerahammed Saikalgar

Karnataka HC16 Sept 2019MFA/100749/2014

Case brief

AI extract

What is this about?

The High Court modified the Motor Accident Claims Tribunal award. It rejected the insurer's objection to 100% disability but increased the award from ₹10.90 lakh to ₹16.07 lakh by adjusting the disability percentage to 75%, enhancing pain and suffering, and extending the hospitalization period, while dismissing the claimant's request for total enhancement.

What did the court decide?

The MFA Cross Objection was dismissed; the MFA appeal was allowed in part, enhancing compensation to ₹16,07,000/- with 50% deposit in fixed deposit.

Mallikarjun Sadashiv Lohar Vs Abdul Aziz S/O. Muneerahammed… — Insurance | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 16^th DAY OF SEPTEMBER 2019

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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MFA CROSS OBJECTION NO.100174 OF 2015 C/W MFA NO.100749 OF 2014 (MV)

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IN MFA.CROB NO 100174 OF 2015 BETWEEN:

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THE NEW INDIA ASSURANCE CO. LTD., ASHOK CIRCLE GUPTA BUILDING RANEBENNUR REP BY SENIOR DIVISIONAL MANAGER, NEW INDIA ASSURANCE COMPANY LIMITED DIVISIONAL OFFICE AT MUDALAGI BUILDING, CLUB ROAD, BELAGAVI NOW IN CROSS OBJECTIONS REP BY DEPUTY MANAGER (DULY CONSTITUTED ATTORNEY) NEW INDIA ASSURANCE COMPANY LIMITED, T.P. HUB, SRINATH COMPLEX, II FLOOR, NEW COTTON MARKET, HUBBALLI-580 022

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... CROSS OBJECTOR

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(By Sri. M.K. SOUDAGAR, ADVOCATE)

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AND:

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SHRI.MALLIKARJUN SADASHIV LOHAR AGE:31 YEARS, OCC:ELECTRICIAN R/O:NARASHINGAPUR, TQ:HUKKERI DIST:BELAGAVI

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MR.ABDUL AZIZ S/O MUNEERAHAMAD SAIKALGAR AGE:MAJOR, OCC:BUSINESS

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R/O:AT POST RATTIHALLI TQ:HIREKERUR, DIST:HAVERI-581116

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... RESPONDENTS (By Smt. GEETA K.M., ADVOCATE FOR R1. R2-NOTICE DISPENSED WITH)

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THIS MFA CROB IS FILED UNDER ORDER 41 RULE 22 OF CPC AGAINST THE JUDGMENT AND AWARD DATED 09.01.2014 PASSED IN MVC NO.2029 OF 2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, BELAGAVI, AWARDING COMPENSATION OF RS.10,90,000/- WITH INTEREST AT THE RATE OF 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA No. 100749 OF 2014 BETWEEN:

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MALLIKARJUN SADASHIV LOHAR AGE: 30 YEARS, OCC: ELECTRICAL NOW NIL R/O. NARASHINGPUR, TQ: HUKKERI DIST: BELGAUM

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... APPELLANT

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(By SMT. GEETHA K. M. @ PAWAR, ADVOCATE)

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AND:

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ABDUL AZIZ S/O. MUNEERAHAMMED SAIKALGAR AGE: MAJOR, OCC: PRIVATE SERVICE R/O. AT POST RATTIHALLI TQ: HIREKERUR, DIST: HAVERI 581 116 OWNER OF ASHOK LEYLAND TRUCK NO.KA-32/B-1670

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THE NEW INDIA ASSURANCE CO. LTD., ASHOK CIRCLE GUPTA BUILDING RANEBENNUR

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R/BY ITS SENIOR DIVISIONAL MANAGER THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE AT MUDALAGI

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BUILDING, CLUB ROAD, BELGAUM INSURER OF ASHOK LEYLAND TRUCK NO.KA-32/B-1670 POLICY NO.6712053111010004761 VALID FROM 23.2.2012 TO 22.2.2013.

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... RESPONDENTS

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(BY SRI. M.K. SOUDAGAR, ADV. FOR R2. NOTICE TO R1 DISPENSED WITH)

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THIS MFA IS FILED U/SEC.173(1) OF MV ACT, AGAINST JUDGMENT AND AWARD DTD:09.01.2014 PASSED IN MVC.NO.2029/2012 ON THE FILE OF THE FAST TRACK COURT-II AND ADDL. MACT BELGAUM, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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MFA CROB AND MFA COMING ON FOR ADMISSION/HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though MFA Crob came up for admission, with

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the consent of both parties, both MFA Crob and MFA are heard finally.

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MFA Crob No.100174 of 2015 is filed by the insurer whereas MFA No.100749 of 2014 is filed by the claimant assailing judgment and award dated 09.01.2014 passed by the Fast Track Court-II and Additional Motor Accident Claims Tribunal, Belgaum

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(hereinafter referred to as the ‘Tribunal’, for short) in MVC No.2029 of 2012.

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Heard the arguments of the learned counsel appearing for the parties.

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Rank of the parties before the Tribunal is retained for convenience.

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The claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’, for short) claiming compensation of Rs.20,00,000/inter alia contending that on 29.07.2012 at about 8.30 pm he was traveling in Tata Ace goods vehicle and when it came near Rajpurohit Dhaba, within the limits of Botaramatti on NH-4, the driver of the truck bearing registration No.KA-32/B1670 came in a rash and negligent manner with high speed and dashed to the goods vehicle from behind. Due to which he sustained grievous injures and was taken to Vijaya Hospital, Belgaum and then to KLE hospital, Belgaum, and was treated as an in patient.

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Further contended that he has spent a lot of money towards medical expenses and due to the injuries, he has lost 100% earning capacity. Hence, claimed compensation.

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In pursuance to the notice, respondent No.1-

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owner of the truck though appeared through counsel but not filed any objections.

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Second respondent-insurer appeared through counsel and filed statement of objections denying rash and negligent driving by the driver of the truck and further denied the age, occupation and income of the claimant and also contended that there is negligence on the part of the Tata Ace which is a goods vehicle and the claimant was traveling in the goods vehicle as a passenger and the driver of the truck was not holding valid and effective licence alternatively, it is contended that if any liability, the same shall be subject to the validity of the driving licence. Hence, prayed for dismissal of the claim petition.

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7. Based on the rival pleadings, the Tribunal

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framed the following issues:

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1. Whether the petitioner prove that he has sustained injuries in the alleged accident caused on 29.7.2012 at about 20.30 hours, while he was proceeding on Tata Ace Goods vehicle bearing No.KA-23/a-831 on NH-4 road, in front of Rajpurohit Dhaba, within the limits of Bootramatti, due to rash and negligent act of the driver of the Truck bearing No.KA-32/B-1670?

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2. Whether the petitioner is entitled to compensation, if so for how much and from whom?

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3. What order or award?

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To substantiate his contentions, the claimant examined himself as PW-1 and also examined 3 more witnesses as PWs.2 to 4 and got marked 20 documents as Exs.P-1 to 20. On behalf of the respondents, no oral evidence has been let-in except marking a copy of the policy as Ex.R-1.

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9. After considering the evidence on record, the

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Tribunal answered issue Nos.1 and 2 in the affirmative

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and awarded compensation of Rs.10,90,000/- as under:

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		Rs.
1	Towards pain and sufferings	30,000/-
2	Towardsmedicalexpenses	1,26,000/-
3	Towardsattendant charges	4,000/-
4	Towards diet, conveyance and other miscellaneous expenses	10,000/-
5	Towards loss of income during hospitalization at Rs.8,000/- per month forthreemonths	24,000/-
6	Towards future earning capacity (8054+50% future prospects, less 1/3 towards personal expenses x12x17)	8,21,500/-
7	Towards loss of amenities and discomfort	50,000/-
8	Towardsfuturemedicalexpenses	25,000/-
	Total Rounded off	10,90,500/- 10,90,000/-

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Assailing the judgment and award passed by the Tribunal, the insurer filed MFA Crob No.100174 of

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2015 and the claimant has filed MFA No.100749 of 2014 seeking enhancement of compensation.

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Learned counsel for the insurer strenuously argued that the Tribunal committed an error in taking the disability at 50% and also calculating 50% towards loss of future prospects in an injury case and awarding compensation under the head loss of earnings to an extent of Rs.8,21,500/- which is not correct and the award towards other heads are also exorbitant. Hence, prayed for allowing the cross objection and to reduce the compensation.

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Per contra, Smt. Geeta, learned counsel for

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the claimant contended that by considering the evidence of the Doctor and the disability certificate since the claimant has suffered 100% disability and established income of Rs.8,054/- per month as per the evidence of PW-3, though the Tribunal considered 50% as future prospects but was wrong in deducting 1/3^rd of the income towards personal expenses as is done in a death

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case. Therefore, sought for setting aside the finding on the loss of earning capacity. Further contended that the claimant was hospitalized for 30 days in various hospitals and though he has spent huge amount towards medical and other incidental charges, the Tribunal has awarded only Rs.30,000/- towards pain and suffering, which is very meager and Rs.4,000/towards attendant charges, Rs.10,000/- towards diet, conveyance and other miscellaneous expenses and loss of income towards laid up period is considered only for 3 months which is incorrect, at least, it should be 4 months. Amount awarded towards loss of amenities is also very meager and amount of Rs.25,000/- awarded towards future medical expenses is also meager. Hence, prayed for enhancing the same.

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Upon hearing the arguments of the learned counsel for both the parties, the points that arise for consideration are:

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(i). Whether the Tribunal is not justified in awarding the compensation by calculating

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50% disability and also adding 50% of the income towards future prospects and deducting 1/3^rd towards personal expenses in injury case?

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(ii). Whether the claimant is entitled for enhancement in the compensation or reduction as contended by the insurer?

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(iii). What order?

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14. The claimant has established the factum of

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accident that occurred on 29.07.2012 due to the rash and negligent driving by the driver of the truck bearing registration No.KA-32/B-1670, due to which, the claimant sustained injuries and was taken to Vijaya hospital, Belgaum and later on 29.07.2012 he was referred to KLE Hospital, Belgaum and was treated as inpatient till 17.08.2012.

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The only controversy is in respect of

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issuance of disability certificate by PW-4 who is not a treated doctor as well as calculation with respect to loss

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of earning capacity as contended by the counsel for the insurer. It is established that the claimant was earning Rs.8,054/- as per the salary slip Ex.P-20 as on the date of the accident.

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PW-3-employer of the claimant was

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examined before the Tribunal and he has stated that the injured was working under him as an electrician and they were making payment as per the salary slip. It is also seen from the evidence on record that the claimant after the accident and taking treatment has resigned the job. PW-3 has stated that there is no document before him to show what was the reason for the claimant to resign the job.

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Smt. Geeta, counsel for the claimant argued

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that due to the paraparesis, as per the evidence of PW4-Doctor, the claimant is suffering from 81% disability to the whole body and 75% towards lower limb due to fracture of L1 as per Ex.P-6 discharge summary issued

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by Vijaya Hospital and the certificate issued by KLE hospital, Belgaum.

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However, it is argued by the learned counsel for

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the respondent-insurer that PW-4 is the doctor who has not treated the claimant, who is residing at Kolhapur. The claimant instead of choosing to take the disability certificate at KLE Hospital, Belgaum, which is at a distance of 30 kms but has chosen to go to other State which is 130 kms away from his village and therefore the evidence of PW-4 cannot be accepted and also contended that PW-4 is a Neuro Surgeon and he cannot given evidence in respect of Urinary bladder. The evidence produced by the claimant does not reveal that he was suffering from urethral injury or taken any treatment except for fracture of Lumbar. As per the evidence of PW-4, he was examined through Court Commissioner and he has given evidence that there is permanent impairing of power of his both lower limbs due to paraparesis and 75% is the permanent disability with respect to paraparesis and the disability in respect

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of urinary bladder impairment is 25% and in all the permanent disability is 81%. But there is no evidence before the Court to show there is fracture of vertebra or any treatment is taken by the claimant in that regard. There is no evidence before the Court to show that there is urethral disorder and any treatment is taken by the claimant and no specialist in Nephrology or any Urologist is examined to show that the claimant had suffered 25% disability. In the absence of any medical document, the statement of the Doctor-PW-4 regarding 25% impairment to urinary bladder cannot be acceptable. Hence, the point to be considered is with respect to 100% of disability given by the doctor towards loss of earning capacity due to paraplegia.

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It is brought to the notice of the Court by the counsel for the insurer that though it is accepted that the claimant has suffered 100% disability, as argued by the counsel for the claimant, there is no evidence before the Court to show whether the claimant himself examined through Court Commissioner or he came to

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the Court by himself and gave oral evidence. Even on perusal of the order sheet of the Tribunal as well as the evidence recorded before the Tribunal, it does not reveal that the claimant was examined through Court Commissioner, rather he was examined before the Court and there is no observation in the order sheet that the claimant was not able to stand, sit or walk and enter the witness box. Such being the case, the contention of the learned counsel for the claimant that the claimant is suffering from paraplegia 100% disability cannot be acceptable. Though the learned counsel relied upon the judgment of the Division Bench of the Bombay High Court in the case of Shaikh Farooq Mohammad Gaouse v. Transport Manager, Thane Municipal Transport Undertaking reported in 2013(2)T.A.C.404 (Bom) wherein 100% of earning capacity was made inclusive of future prospects. But here in this case, there is no evidence to show that the claimant is suffering from 75% disability to both the lower limbs and 25% to the Urinary galbladder. When such being the case, the

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evidence of PW-4 that the claimant is suffering 81% disability to the whole body cannot be accepted. On the other hand, even if considering the disability at 75%, the same cannot be divided by 1/3 as contended by Sri.

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Soudagar, counsel for the insurer. Normally in paraplegia case, loss of earning capacity cannot be considered 100% even the disability is more than 80% to 90%. Here by looking to the facts that the claimant engaged an attendant for his assistance, such being the case, the Court cannot consider the disability of 50% to the whole body. Therefore, I propose to consider the disability of 75% to the whole body instead of 100% claimed by the claimant. Apart from that once this Court not considered the disability of 100% to the whole body, the question of calculating loss of future prospects in the injury case cannot be allowed. Therefore, the findings of the Tribunal considering 100% of disability towards loss of income and awarding additonal 50% towards future prospects is liable to be set aside. Further, in the injury case, normally there

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shall not be any deduction towards personal living expenditure unlike in the case of death claim petition where the Court used to deduct 1/3^rd , 2/3^rd of income towards personal expenses of the deceased. Therefore, the findings regarding deduction made by the Tribunal is also liable to be set aside and as held above, if the income of the claimant is considered as Rs.8,000/-, 75% would be Rs.6,000/-and is multiplied by 12 and 17 multiplier, it comes to Rs.12,24,000/-. This would be loss of earning capacity. As regards pain and suffering, the Tribunal has awarded Rs.30,000/- only. Normally for any injury or fracture, this Court used to consider Rs.40,000/- towards pain and agony but here in this case, due to fracture of lower limb of the claimant and he has taken treatment in various hospitals. Hence, I propose to award Rs.50,000/- instead of Rs.30,000/- as awarded by the Tribunal towards pain and suffering. As regards medical expenses, the Tribunal has awarded Rs.1,26,000/-. The same is retained since the amount awarded is as per the bills. A sum of Rs.4,000/- and

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Rs.10,000/- awarded towards attendant charges and towards diet conveyance and other miscellaneous expenses respectively, is very meager. Therefore, I propose to award on both the heads a sum of Rs.25,000/- each. Towards loss of income during hospitalization, the Tribunal has awarded Rs.24,000/calculating laid up period for 3 months. On considering the evidence on record, I propose to consider the laid up period for 4 months. Therefore, loss of income during laid up period comes to Rs.32,000/-(8000x4). Towards loss of amenities the Tribunal has awarded Rs.50,000/-. Learned counsel contended that there is loss of future amenities and to consider the evidence on record that he is a married person having children. Therefore, considering the facts and circumstances of the case and appointment of PW-2 as an attender for assisting the claimant, award of Rs.50,000/- by the Tribunal is very meager. Therefore, I propose to award a sum of Rs.1,00,000/- towards loss of future amenities and discomfort. A sum of Rs.25,000/- awarded by the

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Tribunal towards future medical expenses is reasonable

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and the same is retained. Consequently, the claimants are entitled for re-assessed compensation as under:

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		Rs.
1	Towards pain and sufferings	50,000/-
2	Towardsmedicalexpenses	1,26,000/-
3	Towards attendant charges	25,000/-
4	Towards diet, conveyance and other miscellaneous expenses	25,000/-
5	Towards loss of income during hospitalization at Rs.8,000/- per month forthreemonths	32,000/-
6	Towardsfuture earning capacity	12,24,000/-
7	Towards loss of amenities and discomfort	1,00,000/-
8	Towardsfuturemedicalexpenses	25,000/-
	Total	16,07,000/-

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The claimants are entitled to re-assessed

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compensation of Rs.16,07,000/as against Rs.10,90,000/- awarded by the Tribunal.

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Consequently, though the insurer succeeded in

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reducing the compensation in respect of future prospects and 100% disability considered by the Tribunal, but in view of enhancement of compensation, the MFA cross objection filed by the insurer deserves to be dismissed and the appeal filed by the claimants deserves to be allowed in part.

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Accordingly, MFA Cross Objection No.100174 of 2015 filed by insurer is dismissed.

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MFA No. 100749 of 2014 is allowed in part. The

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judgment and award dated 09.01.2014 passed by the

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Fast Track Court-II and Additional Motor Accident Claims Tribunal, Belgaum, in MVC No.2029 of 2012 is modified. The claimant is entitled to re-assessed compensation of Rs.16,07,000/as against Rs.10,90,000/- awarded by the Tribunal. Out of the award amount, 50% shall be deposited in a fixed deposit in any Nationalized Bank for a period of 5 years, on its maturity, may be extended to 10 years. The claimant is

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entitled to receive the interest accrued thereon

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periodically. Insurance company is directed to deposit the award amount within four weeks from the date of receipt of a certified copy of the judgment.

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The amount in deposit including statutory deposit, if any, and LCR is ordered to be transmitted to the Tribunal concerned forthwith.

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Sd/JUDGE

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kmv

Mallikarjun Sadashiv Lohar v. Abdul Aziz S/O. Muneerahammed Saikalgar

Case brief

What is this about?

What did the court decide?

Mallikarjun Sadashiv Lohar v. Abdul Aziz S/O. Muneerahammed Saikalgar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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