Partly allowed

M/S SBI General v. Sri Rajesh

Karnataka HC25 Aug 2022MFA/5542/2015

Case brief

AI extract

What is this about?

High Court allowed appeal in part, modifying the Motor Accidents Claims Tribunal award. The court reduced compensation for pain and suffering, loss of amenities, and future medical expenses, recalculated loss of future income using a different multiplier and disability percentage, and set aside the head for loss of marriage prospects. Total compensation reduced from Rs.6,15,643 to Rs.5,14,660.

What did the court decide?

The impugned award modified; total compensation reduced to Rs.5,14,660/- (down from Rs.6,15,643/-); appeal allowed in part.

M/S SBI General Vs Sri Rajesh — Civil Procedure and Limitation | Karnataka HC (2022)

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1 MFA NO.5542/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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M.F.A.NO.5542/2015 (MV-I)

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BETWEEN :

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M/S SBI GENERAL INSURANCE COMPANY LTD., RUKMINI TOWERS, GROUND & 1^ST FLOOR, 3-1-PLATFORM ROAD, SESHADRIPURAM, RAILWAY APPROACH ROAD, BENGALURU-560020. REPRESENTED BY MANAGER

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… APPELLANT

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(BY SRI.RAVI S. SAMPRATHI, ADVOCATE)

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AND :

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SRI. RAJESH S/O RAVI, AGED ABOUT 21 YEARS, NO.49/12, MAGADI ROAD, GOPALAPURA, BENGALURU-560023.

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SRI. KUPPURAJ, S/O BALAKRISHNA MURTHY, MAJOR IN AGE, NO.64, 1^ST FLOOR, BHAGYA DEEPA, 8^TH B MAIN, III BLOCK, JAYANAGARA, BENGALURU-580011.

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... RESPONDENTS (BY SRI. SURESH M LATUR, ADVOCATE FOR R1, R2-NOTICE DISPENSED WITH V/DT:14/12/17)

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2 MFA NO.5542/2015

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:28.03.2015 PASSED IN MVC NO.894/2014 ON THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE & XXVII ACMM, MACT, BANGALORE, AWARDING COMPENSATION OF RS.6,15,643/- WITH INTERSET @ 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.,

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THIS M.F.A. COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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The appeal is filed by the Insurance Company challenging the judgment and award dated 28.03.2015 passed in MVC.No.894/2014 by the MACT, Bangalore (SCCH-11), being aggrieved by the quantum of compensation awarded is concerned.

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2. Brief facts of the case are as under:

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On 13.1.2014 at about 12:30 pm, the claimant was

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riding his motor cycle bearing No.KA-01-EV-5391 on the left side of Lalbagh Road and reached in front of

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3 MFA NO.5542/2015

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Prakash Show Room, at that time, driver of car bearing No.KA-05-MJ-6767 driven the said vehicle in rash and negligent manner endangering human life with high speed from Mission Road and dashed to the motor cycle of the claimant from behind. Due to said impact, the claimant sustained grievous injuries. Immediately after the accident, the claimant was shifted to Agadi Nursing Home wherein first aid treatment was given to him and he was shifted to St.Maratha hospital and he has taken treatment.

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Learned counsel for the appellantInsurance Company submitted that, in the present case, there is only single fracture caused to the claimant as fracture to tibial condyle fracture left knee, but awarded exorbitant compensation on each head. Therefore, prays for reducing compensation amount awarded by the Tribunal. Further submitted that, in the present case, as per the evidence of doctor and also other medical documentary evidences,

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4 MFA NO.5542/2015

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there is no 100% of disability sustained by the appellant/claimant, but as per the doctor’s evidence, the claimant has suffered only 17.45% of disability towards whole body, but the Tribunal has added 50% of income towards future prospects, which is wrong. Therefore, prays for reduction of amount of compensation.

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Further submitted that the percentage of disability held by the Tribunal is on the higher side compared to the evidence given by P.W.4. Therefore, submitted that 1/3^rd of disability stated by the doctor is to be taken into consideration as functional disability, which comes to around 12%. Therefore, the Tribunal without any justification has awarded the quantum of compensation, which is to be reduced. Further submitted that for single fracture of pain and suffering, the Tribunal has awarded Rs.75,000/-, which is on the higher side and also awarded compensation of Rs.75,000/towards loss of

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5 MFA NO.5542/2015

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amenities, which is also on the higher side. Therefore, prays to reduce the same.

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Further submitted that the Tribunal has awarded compensation of Rs.50,000/- towards loss of marriage prospects, but that cannot be awarded for the reason that, it is only single fracture of tibial condyle fracture left knee, which does not come in the way of consummation of marriage. Therefore, no compensation can be awarded under the head loss of marriage prospects. Therefore, on these grounds, prays for reduction of quantum of compensation.

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On the other hand, learned counsel appearing for the claimant submitted that the quantum of compensation awarded on each head is correct including addition of 50% towards future prospects. It is submitted that even in the case of injury also, 50% of income is to be added towards loss of future prospects due to the injuries sustained. The

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6 MFA NO.5542/2015

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learned counsel places reliance on the judgment of Hon’ble Apex Court in the case of Pappu Deo Yadav Vs. Naresh Kumar and Others (Civil Appeal No.2567/2020 DD.17/09/2020) and also places reliance on the judgment of the Hon’ble Apex Court in the case of Syed Sadiq and Others Vs. Divisional Manager, United India Insurance Company

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Limited reported in (2014) 2 SCC 735.

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Further submitted that the amount of compensation awarded on other heads including loss of marriage prospects is correct. Therefore, there is no ground available to reduce the quantum of compensation awarded. Hence, prays to dismiss the appeal filed by the Insurance Company.

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The Tribunal has awarded the

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compensation under various heads as follows:

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7 MFA NO.5542/2015

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1	Medical expenses		Rs. 48,060/-
2	Food, conv nourishment & expenses	eyance, other	Rs. 25,000/-
3	Loss of income hospitalization	during	Rs. 40,000/-
4	Pain and agony		Rs. 75,000
5	Loss of amenities		Rs. 75,000/-
6	Loss of future income		Rs.3,02,583/-
7	Loss of marriage prosp	ectus	Rs. 50,000/-
	Total Rs.		Rs.6,15,643

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Ex.P.11-wound certificate and Ex.P.13discharge summary and other medical records produced before the Tribunal and evidence of doctorP.W.4 show that the claimant had suffered the following injuries:

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I) TYPE-5 (SCHATZKER) TIBIAL CONDYLE FRACTURE LEFT KNEE.

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II) ANTERIOR CRUCIATE LIGAMENT (ACL) TIBIAL ATTACHMENT FRACTURE WITH TEAR-LEFT KNEE. III) LATERAL COLLATERAL LIGAMENT TEAR-LEFT KNEE.

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Upon the nature of injuries sustained as above discussed, the injury sustained is grievous in nature, but there is no different fractured injuries and

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8 MFA NO.5542/2015

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only one fractured injury is proved and other injuries as described by the doctor-P.W.4 are associated with the fractured injury of tibial condyle fracture of left knee. Therefore, under these circumstances, the Tribunal has awarded compensation of Rs.75,000/towards injury, pain and suffering, which is on the higher side. Therefore, the same is to be reduced. Accordingly, a sum of Rs.40,000/- is awarded under the head injury, pain and suffering. Further the compensation awarded under the head loss of amenities at Rs.75,000/- is on the higher side. No doubt, the appellant/claimant is finding difficulties to stand and bear weight on left leg, difficult to sit cross legged, squatting, walking and using of Indian toilet, and also not able to walk fastly, but the compensation awarded under the said head needs to be reduced. Accordingly, reduced to Rs.40,000/- .

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The Tribunal has not awarded compensation under the head future medical

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9 MFA NO.5542/2015

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expenses, but considering the nature of injuries sustained and also he has taken treatment in four different hospitals being inpatient and rod and nails were fixed. Therefore, in the case for removal of those rods and nails in future, one more surgery is needed. Accordingly, compensation of Rs.30,000/- is awarded under the head future medical expenses.

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The Tribunal has awarded compensation of Rs.3,02,583/- under the head loss of future income due to the disability suffered by holding monthly income of the claimant at Rs.9,000/- per month and added 50% of income towards loss of future prospects and holding the percentage of disability at 17.45% and accordingly, awarded the compensation under the said head. Learned counsel for the claimant submitted that even in the case of injury, a certain amount is to be added towards loss of future prospects and he placed reliance on the judgment of Hon’ble Apex Court in Pappu Dio ’s case and Syed Sadiq ’s case (stated

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10 MFA NO.5542/2015

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supra). The facts in Pappu Dio ’s case are that the claimant was working as a data entry operator/typist at Tis Hazari Courts, Delhi, and suffered 89% of disability in relation to his right upper limb, which had to be amputated.

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Therefore, under these facts and

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circumstances, the Hon’ble Apex Court at Paragraph No.21 had considered the functional disability at 65% and added 40% of income towards future prospects. Also in the case of Syed Sadiq (stated supra), the facts are that the claimant was working as a cleaner in the lorry and sustained fracture of femur and tibia and therefore, suffered functional disability to the extent of 85%. Under these circumstances, the Hon’ble Apex Court added 50% of increment to loss of future prospects in life. Therefore, in the present case, the facts and circumstances of the case are that the claimant had not suffered amputation of leg and also not suffered multiple fractures. In the present case,

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11 MFA NO.5542/2015

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the appellant suffered only fracture of tibial condyle fracture left knee and as per the doctor’s evidence who is examined as P.W.4, the percentage of permanent physical disability is only 34.9% towards left lower limb and stated 17.45% towards whole body. Therefore, differences in factural matrix in the above cited judgments and in the present case, hence above citations are not applicable to the present case sofar as addition of income towards loss of future prospects is concerned.

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Therefore, in the present case, there is no necessity or question arises for making addition of 40% or 50% of income towards loss of future prospects. The loss of future prospects is to be considered even in the case injury also, when the claimant suffered any grave injury, due to which, he cannot do his day to day normal work by sustaining 100% of disability or by the disability to do his profession, but in the present case, as per the doctor’s

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12 MFA NO.5542/2015

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evidence -P.W.4, the appellant/claimant had suffered 17.45% of disability towards whole body. Therefore, the above said judgments are not applicable in the present set of facts and circumstances involved in the case. Therefore, without making addition of income towards loss of future prospects the bare income is to be considered. The claimant had given evidence as P.W.1 and stated that he was working as operator in the Lathe Machine in the work shop and was drawing salary of Rs.9,000/-. Accordingly, produced the salary certificate as per Ex.P.14 and also his employer was examined as P.W.3. Therefore, the Tribunal is correct in holding the income at Rs.9,000/- per month as the income of the appellant/claimant. But the Tribunal has committed error in making addition of 50% of income towards loss of future prospects, which is not correct for the reasons above discussed. Even the Tribunal has committed error in making deduction of 1/3^rd out of Rs.13,500/- by mentioning it as Rs.8,500/-. The

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13 MFA NO.5542/2015

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Tribunal has committed mathematical error in its own calculation also. Considering the nature of injuries as above stated and considering the evidence of P.W.4doctor who has stated that the appellant suffered 34.9% of permanent physical disability towards left leg and it works out at 17.45% towards whole body and accordingly, the Tribunal has taken 17.45% as functional disability. The Hon’ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and Another reported in (2011) 1 SCC 343, issued guidelines as to how to determine the functional disability. The functional disability is to be taken into consideration with respect to the whole body, but taking into consideration the whole body is one of the criteria. The functional disability is to be determined, according to the avocation/profession/job of the claimant compared with the nature of injuries sustained. In the present case, appellant/claimant had suffered fracture of tibial condyle fracture left knee

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14 MFA NO.5542/2015

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and other injuries are associated with the above fracture. The appellant/claimant was working as operator in Lathe Machine, since the injury is caused to tibial condyle fracture left knee, certainly, it restricts movement of left leg in rotation squatting, etc. Therefore, the appellant/claimant find it difficulty to work as operator to some extent. Therefore, applying the principles of law laid down by the Hon’ble Apex Court in Raj Kumar ’s case (stated supra) it is just and proper to hold that the appellant suffered 15% of functional disability as he suffered only single fracture and other injuries are associated injuries to the fractured injury of tibial condyle fracture of left knee. Therefore, in this regard, the Tribunal has committed error in taking the disability at 17.45% and it is modified accordingly.

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The appellant/claimant was aged 20 years and the multiplier applicable is “18” as per Smt.Sarla Verma & Others. Vs. Delhi

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15 MFA NO.5542/2015

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Transport Corpn And Another reported in AIR 2009 SC 3104, but the Tribunal has committed error in taking multiplier as “17”. Therefore, loss of future income due to disability is recalculated and quantified as follows:

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Rs.9,000/- x 15% x 18x 12 = Rs.2,91,600/Accordingly, Rs.2,91,600/- is awarded.

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Further the Tribunal has awarded compensation of Rs.50,000/- towards loss of marriage prospects. According to the contention of the Insurance Company awarding of compensation under the head loss of future prospects is not permissible considering the nature of injuries sustained by the appellant, but whereas the learned counsel for the appellant/claimant submitted that, since he has suffered fracture of left leg, therefore, he may find difficult in searching a suitable girl according to his choice. Therefore, the Tribunal is justified in awarding compensation under the said head.

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16 MFA NO.5542/2015

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Considering the rival submissions and nature of injuries sustained by the appellant/claimant as he has suffered fracture of left leg, he may be finding some difficulty in walking or squatting and doing day to day normal activity and even though, he cannot perform his function effectively as before the accident as discussed above and therefore, compensation under the head loss of earning capacity is granted, but in what way this fracture to the left leg causing hampering to the marriage prospects is not forthcoming in the evidence. It is not an injury to the face or face disfiguration or amputation, but appellant suffered fracture to the left leg tibia bone. Therefore, it is difficult to understand as to in what way the appellant suffered loss of marriage prospects. Therefore, compensation awarded under this head is liable to be set aside. Accordingly, it is set aside.

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Further the Tribunal has awarded

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compensation under various heads i.e., under medical

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17 MFA NO.5542/2015

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expenses, food, conveyance, nourishment and other expenses and loss of income during hospitalization, which are all found to be correct and they need no interference. Hence, they are kept in-tact.

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The appellant/claimant is entitled to the

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compensation as follows:

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1	Medical expenses	Rs. 48,060/-	Kept in tact
2	Food, conveyance, nourishment & other expenses	Rs. 25,000/-	Kept in tact
3	Loss of income during hospitalization	Rs. 40,000/-	Kept in tact
4	Pain and agony	Rs. 40,000/-
6	Loss of amenities	Rs. 40,000/-
7	Future medical expenses	Rs. 30,000/-
7	Loss of future income	Rs. 2,91,600/-
	Total Rs.	Rs.5,14,660/-

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Therefore, the appellant/claimant is

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entitled for total compensation of Rs.5,14,660/- as

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against Rs.6,15,643/- awarded by the Tribunal along with interest at 6% p.a. Hence, I proceed to pass the

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following

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18 MFA NO.5542/2015

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ORDER

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The appeal is allowed-in-part .

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The impugned judgment and award dated 28.03.2015 passed in MVC.No.894/2014 by the MACT, Bangalore (SCCH-11), is modified to the extent that the appellant/claimant is entitled for total compensation of Rs.5,14,660/- as against Rs.6,15,643/- awarded by the Tribunal along with interest at 6% p.a., from the date of petition till realization.

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The amount in deposit shall be transmitted to the Tribunal along with TCR and a copy of this order forthwith.

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No order as to costs.

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Draw award accordingly.

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Sd/JUDGE

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M/S SBI General v. Sri Rajesh

Case brief

What is this about?

What did the court decide?

M/S SBI General v. Sri Rajesh

Case brief

What is this about?

What did the court decide?

What the court decided

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