Partly allowed

Sri Lakshmi Sagar v. Sri Ninge Gowda a B

Karnataka HC14 Nov 2022MFA/3473/2017

Case brief

AI extract

What is this about?

The High Court allowed both Motor Accident Appeals filed by the claimant and the insurance company against the Motor Accident Claims Tribunal. The Court found no contributory negligence by the claimant. It enhanced the compensation by correcting the income assessment, combining cognitive and orthopedic disability percentages, and adding future prospects, while reducing awards on attendant charges

What did the court decide?

The appeals were allowed in part; the impugned award of the Tribunal was modified to grant compensation of Rs. 14,64,696/- plus interest at 6% per annum.

Sri Lakshmi Sagar Vs Sri Ninge Gowda a B — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.3473/2017 (MV-I) C/W. M.F.A.NO.8506/2015 (MV-I)

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IN M.F.A.NO.3473/2017:

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BETWEEN:

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SRI LAKSHMI SAGAR S/O. RACHANNA, AGED ABOUT 31 YEARS, R/AT NO.31, ANJANADRI NILAYA RENUKA P.U. COLLEGE, 8^TH ‘A’ MAIN, OPP. RENUKA P.U.COLLEGE, DWARAKANAGAR, HOSAKEREHALLI, BENGALURU - 85.

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ALSO AT: NO.E/2/2459, UPPER LANE, NEAR NGO OFFICE, JAGAR, GULBARGA - 585 102. …APPELLANT

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(BY SRI A.S.GIRISH, ADVOCATE)

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AND:

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1 . SRI NINGE GOWDA A.B., MAJOR IN AGE NO.967/3, BEERESHWARA NAGAR,

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CHUNCHGATTA, KONANKUNTE POST, BENGALURU - 78.

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2 . NATIONAL INSURANCE CO. LTD., NO.144, 2^ND FLOOR, SHUBHARAM COMPLEX, M.G.ROAD, BENGALURU - 01 BY ITS MANAGER. ... RESPONDENTS

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(BY SMT.GEETHA RAJ, ADVOCATE FOR R2; VIDE ORDER DATED 05.01.2021, NOTICE TO R1 IS DISPENSED WITH)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.08.2015 PASSED IN MVC NO.359/2014 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE AND MEMBER MACT, BENGALURU (SCCH-15), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.8506/2015:

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BETWEEN:

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M/S. NATIONAL INSURANCE CO. LTD., NO.144, 2^ND FLOOR, SHUBHARAM COMPLEX, M.G.ROAD, BENGALURU – 560 001 … APPELLANT

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(BY SMT. GEETHA RAJ, ADVOCATE)

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AND:

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1 . SRI LAKSHMI SAGAR S/O. RACHANNA, AGED ABOUT 29 YEARS, RESIDING AT NO.31, ANJANADRI NILAYA RENUKA P.U. COLLEGE,

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8^TH ‘A’ MAIN, OPPOSITE RENUKA P.U.COLLEGE, DWARAKANAGAR, HOSAKEREHALLI, BENGALURU – 560 085.

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ALSO AT: NO.E/2/2459, UPPER LANE, NEAR NGO OFFICE, JAGAR, GULBARGA - 585 102.

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2 . SRI NINGE GOWDA A.B., NO.967/3, BEERESHWARA NAGAR, CHUNCHANAGATTA KONANKUNTE POST, BENGALURU – 560 072. ... RESPONDENTS

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(BY SRI A.S.GIRISH, ADVOCATE FOR C/R1; VIDE ORDER DATED 15.12.2016, NOTICE TO R2 IS DISPENSED WITH)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.08.2015 PASSED IN MVC NO.359/2014 ON THE FILE OF THE 13^TH ADDITIONAL SMALL CAUSE JUDGE & MEMBER, MACT, BENGALURU, AWARDING THE COMPENSATION OF RS.8,18,000/WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE REALIZATION.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel for the appellants and learned

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counsel for the respondents.

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These appeals are filed challenging the judgment and award dated 18.08.2015 passed in M.V.C.No.359/2014 on the file of the Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru (SCCH-15) (‘the Tribunal’ for short).

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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3. The factual matrix of the case of the claimant before

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the Tribunal is that the he is an Engineer and was earning Rs.34,000/- per month and he met with an accident on 04.12.2013. As a result, he had sustained head injury and several fractures and he was inpatient at three hospitals for a period of 20 days i.e., at the first instance at NIMHANS Hospital for a period of 5 days, at Victoria Hospital for a period of 11 days and later at Bengaluru Hand Centre for a period of 4 days and he has also undergone surgeries.

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In support of his contention, he examined the

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Doctors as P.Ws.3 and 4 and also other witnesses with regard to

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the employment and got marked the documents as Exs.P1 to P33. On the other hand, the respondents not examined any witness.

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The Tribunal, after considering both oral and documentary evidence placed on record, awarded compensation of Rs.8,18,000/- with interest at 9% per annum. Hence, these two appeals are filed by the Insurance Company as well as the claimant.

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The main contention of the appellant-Insurance Company in the appeal is that the Tribunal committed an error in not taking the contributory negligence on the part of the injured himself, who had tried to take U-turn all of a sudden on the main road. Hence, accident has occurred due to his negligence and the same has not been considered by the Tribunal. The other contention of the Insurance Company is that though Doctors have been examined as P.Ws.3 and 4, the disability to the extent of 10% assessed is only physical disability and not a functional disability. Further, the Doctor, who has been examined as P.W.4 has assessed the cognitive disability at 18% as assessed by the

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Neuropsychologist. The claimant has not chosen to examine the Neuropsychologist, who has assessed the cognitive disability at 18% and assessing the disability at 18% is on the higher side. Hence, it requires interference of this Court. The counsel also would submit that the Tribunal also committed an error in awarding compensation on the heads of loss of amenities and comfort and permanent disability and the same is not permissible.

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Per contra, learned counsel for the respondentclaimant would vehemently contend that the Tribunal committed an error in taking the income at Rs.15,000/- per month when he has produced the document of his salary as Rs.34,000/- per month. It is also contended that the Tribunal also reduced the disability to 13%, when the Doctor has deposed 38.7% disability to right upper limb and whole body disability at 10% i.e., in respect of orthopedic injuries. Apart from that, the Doctor, who has been examined with regard to the Neuro aspects, assessed cognitive disability at 18% and committed an error in awarding only an amount of Rs.75,000/- towards pain and suffering and

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compensation awarded on all the heads is very meager and it requires interference of this Court.

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Having heard the respective counsel and also on

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perusal of the material available on record, the points that would arise for consideration of this Court are:

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(i) Whether the Tribunal committed an error in taking the contributory negligence as contended by the appellant/Insurance Company?

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(ii) Whether the Tribunal committed an error in awarding exorbitant compensation as contended by the Insurance Company?

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(iii) Whether the Tribunal committed an error in not awarding just and reasonable compensation as contended by the appellant/claimant?

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(iv) What order?

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Point No.(i)

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The main contention of the appellant-Insurance

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Company is that the accident has occurred due to negligence on the part of the claimant himself since, he entered the main road without observing the traffic rules and inspite of the document in

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terms of Ex.P3-Sketch is produced before the Court, the same has not been considered by the Tribunal. On the other hand, the learned counsel for the respondent-claimant would submit that the claimant had already entered the main road, though he had come from cross road and the driver of the lorry who came in the main road drove the same in a rash and negligent manner and came to extreme left side of the road and dashed against the motorcycle. The counsel also would submit that the driver of the lorry has not been examined before the Tribunal and the Tribunal has considered the same.

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Having considered the respective submission and on perusal of the material available on record, particularly Ex.P3sketch, no doubt, the rider of the motorcycle entered the main road from cross road and lorry was also proceeding, the width of the road was 40 feet and the driver of the lorry came to the extreme left side of the road wherein there was a provision to enter into the main road through cross road and there was 28 feet width on the right side of his side and hence, the very contention of the Insurance Company that the Tribunal

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committed an error cannot be accepted, when there was 28 feet width on the right side of the lorry which came to extreme left side of the road and caused the accident. It is also not in dispute that there was a double road and a divider and from the road divider to the accident spot, there was 28 feet width. When such being the case, the very contention of the Insurance Company cannot be accepted and there is a force in the contention of the learned counsel for the respondent-claimant that driver of the lorry has not been examined, who is the right person to speak about the negligence on his part and no such witness has been examined i.e., either the official witness or the driver of the lorry. In the absence of any cogent evidence before the Court, the Tribunal cannot consider the contributory negligence on the part of the claimant. Hence, I do not find any force in the contention of the Insurance Company that the claimant also contributed to the accident. Hence, I answer point No.(i) as ‘negative’.

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Point Nos.(ii) and (iii)

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Both the points are taken up together since the very contention of the learned counsel appearing for the Insurance

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Company is that compensation awarded is on the higher side. On the other hand, the learned counsel appearing for the claimant would contend that the compensation awarded is very meager.

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Having taken note of the submission of the respective counsel and also on perusal of the material available on record, it discloses that the claimant had sustained 8 fractures particularly, facial injury and head injury i.e., base of skull fracture defused and earlier, the claimant was treated at NIMHANS Hospital and later on, he was shifted to Victoria Hospital and Bengaluru Hand Centre and he was inpatient for a period of 20 days and also took treatment as an outpatient and both the case sheets of NIMHANS Hospital and Victoria Hospital also supports the case of the claimant that he had sustained severe head injury and there were number of fractures.

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Having taken note of the nature of injuries i.e., 8 injuries in total as contended by the learned counsel for the claimant which is reflected in the wound certificate and also the subsequent treatment records i.e., Ex.P6-wound certificate and

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Ex.P7-discharge summaries, the Tribunal has only awarded Rs.75,000/- towards pain and suffering. Having considered the fact that the claimant had sustained number of fractures, it is appropriate to award Rs.1,00,000/- on the head of pain and suffering.

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The Tribunal has awarded Rs.40,000/- on the head

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of loss of income during laid up period. Admittedly, the claimant was inpatient for a period of 20 days in different hospitals. Apart from that, he is an Engineer and he was also teaching mathematics and appointed on a salary of Rs.30,000/- per month and later, it was enhanced to Rs.34,000/- per month. When such being the case, the compensation awarded on the head of loss of income during laid up period in a sum of Rs.40,000/- requires to be increased to two months salary instead of Rs.40,000/- awarded by the Tribunal.

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At this juncture, the counsel for the claimant brought

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to notice of this Court the evidence of P.W.7. On perusal of the same, it is seen that, in the cross-examination, he has admitted that the claimant was appointed in between June to December,

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Hence, it is clear that the accident has occurred in the first week of December and he was on employment at that time. However, in the cross-examination, it is stated that last working day of the claimant in their institute is 30.11.2013 and the accident has occurred on 04.12.2013. Hence, it is clear that, his employment was in between from June to December, 2013. When such being the case, the very contention of the learned counsel for the Insurance Company cannot be accepted. The admitted evidence of P.W.7 is that monthly income of the claimant was Rs.34,000/- per month and having taken the same for a period of two months, it comes to Rs.68,000/-.

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Now coming to the aspect of quantum of compensation is concerned, towards medical expenditure, medical bills are produced to the tune of Rs.1,05,814/- and the Tribunal has awarded Rs.1,10,000/- and the same is based on the documentary evidence and it does not require any interference.

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The Tribunal awarded Rs.30,000/- on the head of future medical expenditure and the Doctor, who has been

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examined as P.W.4 has not stated anything about future medical expenses. Hence, the Tribunal committed an error in awarding Rs.30,000/- on the head of future medical expenses and the same is set aside.

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Now coming to loss of future earning capacity is concerned, the Tribunal taking the income at Rs.15,000/- per month, disability at 13% and the relevant multiplier ‘17’ awarded an amount of Rs.3,97,800/- towards loss of future earning capacity. Admittedly, the material on record and the evidence of P.W.7 is very clear that the claimant was getting salary of Rs.34,000/- per month and the evidence of P.W.7 is very clear that he was appointed to teach mathematics to 7^th and 8^th standard students to complete the syllabus and admittedly, he was an Engineering Graduate and the fact that he was also employed to teach mathematics is not in dispute and the employment is also for a temporary period of 6 months i.e., from June to December, 2013. When such being the material on record, the Tribunal ought to have taken 50% of the salary, even if it is a temporary employment which comes to Rs.17,000/- per

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month. With regard to the disability is concerned, the Tribunal restricted the disability only to 17% and the evidence of the Doctor is very clear that the claimant has cognitive disability at 18% regarding his head injury, 10% in respect of orthopedic injuries i.e., fracture of scapula and brachial plexus injury and 10% in respect of right upper limb and he has also suffered 8 fractures, including the skull fracture. When such being the case, the Tribunal ought to have considered the cognitive disability and disability in respect of particular limb while taking the disability to calculate loss of future earning capacity.

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The Apex Court in ERUDHAYA PRIYA v. STATE EXPRESS TRANSPORT CORPORATION LTD. reported in 2020 SCC Online SC 601 awarded future loss of income by adding future prospects and in the case on hand, the claimant is aged about 29 years. Hence, 40% has to be added as future prospects.

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At this juncture, the learned counsel for the insurance company would submit that the claimant is not having any permanent disability and in order to substantiate the same,

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no material is placed before the Court and the said contention cannot be accepted for the reason that the Doctor, who has been examined as P.W.4 comes and deposes before the Court with regard to cognitive disability is concerned and no doubt, in the cross-examination of P.W.4 he admitted that competent person to speak is the person, who assessed the disability, the person who assessed the disability has not been examined before the Court. When such being the case, it is appropriate to take 13% cognitive disability taken by the Tribunal and the Tribunal, while calculating the percentage of disability, not considered the orthopedic injuries disability. Hence, it is appropriate to take the cognitive disability at 13% and orthopedic disability at 10% which comes to 23%.

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In view of the judgment of the Apex Court in ERUDHAYA PRIYA’s case and the judgment of the Division Bench in M.F.A.NO.103807/2016 C/W. M.F.A.NO.103835/2016 dated 27.05.2022 at Dharwad Bench

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and considering the age of the claimant as 29 years, 40% has to be added as future prospects. If the same is added, the income

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of the claimant comes to Rs.23,800/- per month. Hence, taking the income at Rs.23,800/- per month, disability at 23% and the relevant multiplier ‘17’, the loss of future earning capacity comes to Rs.11,16,696/-.

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The Tribunal awarded an amount of Rs.50,000/- on the head of loss of amenities and having considered the age of the claimant as 29 years and he has to lead rest of his life with the disability of 23%, no grounds are made out to interfere with the same.

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The Tribunal awarded Rs.75,000/towards permanent disability and the same is not permissible since, compensation is awarded under the head of loss of income during laid up period and loss of future earning capacity. Hence, award of an amount of Rs.75,000/-is set aside.

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The Tribunal awarded Rs.40,000/- on the head of attendant charges, diet, conveyance and other charges and the same is on the higher side. The records disclose that the claimant was inpatient for a period of 20 days and hence, the

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same is reduced to Rs.20,000/- as against Rs.40,000/- awarded by the Tribunal. Hence, in all, the claimant is entitled for compensation of Rs.14,64,696/-. Accordingly, I answer point Nos.(ii) and (iii) as ‘affirmative’.

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Point No.(iv)

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In view of the discussions made above, I pass the following:

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ORDER

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(i) The appeals are allowed in part.

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(ii) The impugned judgment and award of the Tribunal dated 18.08.2015, passed in M.V.C.No.359/2014 is modified granting compensation of Rs.14,64,696/- as against Rs.8,18,000/- with interest at 6% per annum on the enhanced compensation and the claimant is not entitled for the interest for the delayed period of 491 days as ordered by this Court vide order dated 01.04.2021.

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(iii) The Insurance Company is directed to pay the compensation amount with interest within six weeks from today.

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(iv) The amount in deposit is ordered to be transmitted to the concerned Tribunal forthwith.

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(v) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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Sri Lakshmi Sagar v. Sri Ninge Gowda a B

Case brief

What is this about?

What did the court decide?

Sri Lakshmi Sagar v. Sri Ninge Gowda a B

Case brief

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What did the court decide?

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