Partly allowed

The Divisional Manager v. N. Kumaresan

Karnataka HC13 Jul 2023MFA/10623/2013

Case brief

AI extract

What is this about?

This High Court allowed both appeals in part, modifying an MACT award in a motor accident case. The Court fixed permanent disability at 100% instead of 75% and enhanced compensation for future earnings, loss of amenities, and attendant charges to Rs.35,48,100/- with interest at 6% p.a.

What did the court decide?

Compensation enhanced to Rs.35,48,100/- with interest at 6% p.a.; permanent disability fixed at 100%.

The Divisional Manager Vs N. Kumaresan — Motor Accident Claims | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JULY, 2023

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PRESENT

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THE HON’BLE MRS.JUSTICE K.S. MUDAGAL

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AND

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THE HON’BLE MR.JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL No. 10623/2013(MV-I) C/W MISCELLANEOUS FIRST APPEAL NO. 2840/2014(MV-I) IN M.F.A NO. 10623/2013(MV-I):

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BETWEEN:

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE COMPANY LIMITED., DIVISIONAL OFFICE - 10 NO. 48/2, II FLOOR ST, MARKS ROAD, ABOVE K.C. DAS SWEETS BANGALORE - 560 001.

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BY REGIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD., 5TH FLOOR, KRISHI BHAVAN NRUPATHUNGA ROAD, HUDSON CIRCLE BANGALORE - 560 027 BY IT'S MANAGER.

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…APPELLANT (BY SRI. O.MAHESH, ADVOCATE)

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AND:

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N.KUMARESAN, AGE 34 YEARS S/O. LATE R. NAGALINGAM R/AT NO. 463, 16TH CROSS I BLOCK, VISHWAPRIYA LAYOUT BEGUR ROAD BANGALORE - 560 068.

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VENKATARAMANAPPA MAJOR S/O. GANGAPPA R/O. KADUBISANAHALLI VARTHUR HOBLI BANGALORE - 64. …RESPONDENTS

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(BY SRI. K.V.NAIK, ADVOCATE SRI. CHANDRASHEKHAR ., ADVOCATE FOR R1)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT PRAYED TO SET ASIDE THE JUDGMENT AND AWARD DATED 05.11.2013 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL, COURT OF SMALL CAUSES, BANGALORE, SCCH-15 IN M.V.C.NO.7635/2012 WITH COSTS IN THE INTERESTS OF JUSTICE.

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M.F.A NO.2840/2014 (MV-I): BETWEEN:

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KUMARESAN .N AGED ABOUT 35 YEARS S/O LATE R. NAGALINGAM R/AT NO. 463, 16TH CROSS, 1ST BLOCK, VISHWAPRIYA LAYOUT BEGUR ROAD BENGALURU - 560 068. …APPELLANT

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(BY SRI.K.V.NAIK ADVOCATE FOR SRI CHANDRASHEKHAR R, ADVOCATE)

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AND:

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VENKATARAMANAPPA S/O GANGAPPA R/O KADUBISANAHALLI VARTHUR HOBLI BENGALURU.

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THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD.,

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D.O-10, NO.48/2, II FLOOR, ST. MARKS ROAD, ABOVE K.C.DAS SWEETS, BENGALURU - 560 001. …RESPONDENTS

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(BY SRI. O.MAHESH, ADV. FOR R2)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT PRAYS THAT THIS HON'BLE COURT BE PLEASED TO CALL FOR RECORDS IN MVC NO. 7635/2012 ON THE FILE OF THE 13^TH ADDL SCJ & MEMBER, MACT, BANGALORE, SCCH-15 AND MODIFY THE JUDGMENT AND AWARD DATED 5.11.2013 AND ENHANCE THE COMPENSATION BY ALLOWING THIS APPEAL WITH COSTS AND GRANT SUCH OTHER RELIEF'S AS THIS HON'BLE COURT DEEMS FIT TO GRANT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, TO MEET THE INTEREST OF JUSTICE.

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THESE MFAS COMING ON FOR HEARING, AFTER HAVING HEARD THE MATTERS, RESERVED FOR JUDGMENT, THIS DAY, RAMACHANDRA D. HUDDAR J. PRONOUNCED THE FOLLOWING:

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JUDGMENT

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These two appeals arise out of a Judgment passed in MVC No.7635/2012 dated 5.11.2013 by the 13th Additional Small Cause

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Judge and Member, MACT, Bengaluru (SCCH-15) (hereinafter referred to as `MACT').

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Parties to these appeals are referred to as per their ranks before the Tribunal for the purpose of convenience.

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The appellant in MFA No.10623/2013 has challenged the award on the point of negligence, the quantum and liability of the Insurer. Whereas, the claimant has preferred MFA No.2840/2014 challenging the adequacy of the compensation awarded.

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The brief facts so made out by the petitioner before the MACT are as under:

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That, on 9.10.2012 at about 6.15 a.m. when petitioner was proceeding on his motorbike bearing Regn.No.KA-01-EE-814 on Dodda Kannanahalli Main Road on the left side of the road, near VKC Developers Office, water tanker bearing Regn.KA-03-B-6106 being driven by its driver in high speed and in a rash and negligent manner, dashed against him. Thereby, he sustained severe injuries. To that effect, a complaint came to be filed before Airport Traffic Police Station as per Ex.P1 in Crime No.107/2012 for the

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offences punishable under Sec.279 and 337 of IPC. After investigation to that effect, charge sheet came to be filed against the driver of Tanker Lorry No.KA.03/B-6106 for the aforesaid offences. At the relevant time, respondent no.1 was the owner of the said offending vehicle and respondent no.2 was the Insurer respectively.

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The petitioner claimed compensation of Rs.50,00,000/- on all counts because of actionable negligence on the part of the driver of the water tank. He further claimed that in the said accident, he suffered grievous injuries which lead to his permanent disability and loss of his earning capacity.

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Both respondents appeared before the MACT and denied the case of the petitioner attributing negligence to the petitioner himself. The policy on the date of accident in respect of the offending vehicle was admitted. However, it was contended that liability of the insurer is subject to the terms and conditions of the policy. They further disputed age, occupation and income of the claimant and their liability to pay the compensation.

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Based upon the rival pleadings, the learned MACT framed the relevant issues.

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To substantiate the case of the claimant, he was examined as PW.1 and also examined Dr.Bhushan Joseph as PW.2 and got marked Ex.P1 to P14 and closed his evidence. Respondents have not lead any evidence.

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The learned MACT, after hearing the arguments, by the impugned award granted Rs.25,38,700/- as compensation together with interest at the rate of 8% p.a. from the date of petition till realization and directed respondent No.2 to indemnify the same. The MACT awarded the compensation on different heads as per the

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table below:

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Head	Amount( `.)
Pain and suffering	1,50,000/-
Medical Expenses	5,16,500/-
Loss of Income during the laid up period with attendant charges	30,000/-
Diet, conveyance, nourishment, food and other charges	30,000/-
Loss of future income	6,48,000/-
(4,500 x 12 x 75/100 x 16)
Loss of Amenities & comfort	1,00,000/-
For permanent disability	1,00,000/-
Attendant Charges	8,64,000/-
(4,500 x 12 x 16)
Loss of marriage prospects	1,00,000/-
TOTAL	25,38,700/-

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Sri O.Mahesh, learned counsel appearing for the Insurer submits that, the MACT erred in considering the permanent disability to the extent of 75%. He further submits that, the compensation awarded on all the heads is also on the higher side. He further submits that, the said accident has taken place because of negligence on the part of the petitioner, therefore, the MACT is not right in fixing the liability on the Insurer.

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As against this, Sri K.V.Naik, learned counsel appearing for the claimant submits that, claimant has suffered 100% disability, the income of the petitioner-claimant is not properly assessed and the compensation awarded is inadequate. He submits that, the compensation ought to have been awarded as claimed by the claimant. There was no negligence on the part of the claimant with regard to the said accident. Hence, prays to enhance the compensation.

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Considering the submissions of learned counsel for both the side and on examining the materials on record, the questions that arise for our consideration are:

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(a) Whether there was contributory negligence on the part of the claimant in causing the accident?

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(b) Whether the compensation awarded to the claimant under the impugned award is just and reasonable?

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ANALYSIS

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Regarding Negligence :

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The occurrence of the accident and filing of the charge sheet against the driver of said offending water tanker is not in dispute. But, it is contended by the Insurer that the said claimant himself was a tort-feaser, and was responsible for the accident. Claimant has denied his negligence in causing the said accident. Therefore, based on the documents placed on record, we have to decide whether the claimant himself is a tort-feaser.

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With regard to the said accident, a complaint came to be filed by one Sri R.Chandrashekhar alleging that on 9.10.2012 at about 6.15 a.m, the driver of the water tanker bearing Regn.No.KA-03-B-6106 by driving his vehicle on the main road of Dodda Kannahalli towads Devarabeesanahalli from Panathur in high speed in a rash and negligent manner and near the VKC

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Developer's office, dashed against the claimant who was coming from Devarabeesanahalli towards Panathur on his motor bike bearing Regn.No.KA-01-EE-814. During the course of investigation, the Police have prepared the Panchanama, the sketch of scene of occurrence. FIR is marked at Ex.P1, complaint is at Ex.P2, sketch is at Ex.P3 and copy of the charge sheet is at Ex.P5 and wound certificate is at Ex.P4.

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The perusal of panchanama and sketch show that the offending lorry was proceeding from north to south on the aforesaid main road and the claimant was moving from south to north. On scrupulous perusal of the sketch, it shows that from northern side to southern side, there was a curve. The driver of the water tanker after passing the said curve though had 16 ft. road on the left side of the road towards eastern side, came towards the western side and dashed against the claimant's vehicle. Though it is contended by the Insurer that, there was a contributory negligence on the part of the claimant in causing the said accident, the contents of panchanama, sketch, MV Report, the charge sheet and wound certificates are not denied by the Insurer. Moreover, to

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show that the claimant himself was a tort-feaser or responsible for accident, the respondents did not choose to lead any evidence either of the driver or of the owner. In view of the aforesaid facts and circumstances, the learned MACT was justified in holding that accident took place due to the actionable negligence on the part of the driver of the water tanker alone.

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Regarding quantum:

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As per the medical records, the claimant was aged 33 years. In the claim petition, he has stated his age as 33 years. Therefore, the MACT rightly considered the age of the claimant as 33 years. The claimant contended that he was earning Rs.15,000/per month by his profession as a Security Officer at M/s. Securities. During the course of his evidence, he has not produced any documents in proof of his avocation and income. Except his self serving testimony, there is no concrete evidence to prove that he was earning Rs.15,000/- per month. The learned MACT has assessed his income at Rs.4,500/- per month notionally. The date of accident is 9.10.2012. Considering the age of the claimant, his occupation, prevailing wage rates and cost of living during the

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relevant time, the MACT should have considered his income notionally at Rs.7,000/-.

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PW 2 Dr.Bhushan Joseph, deposed that claimant has suffered 100% permanent physical disability to the whole body. But, the MACT has assessed his permanent disability at 75%. As per wound certificate Ex.P6 the claimant had sustained the following injuries in the said accident:

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"1. Concussive head injury. 2. C6-7 traumatic subluxation with quadriparsis 3. Fracture of shaft of both humerus-1/3"

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He was in HOSMAT Hospital as an in-patient from

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9.10.2012 to 29.11.2012 for almost 51 days. The doctor has diagnosed the concussive head injury, C-6-7 traumatic subluxation with quadraparsis and fracture of shaft of both humerus mid 1/3rd. When he was admitted in the Hospital as per discharge summary Ex.P7, he was unable to move both upper and lower limbs after the injury. The doctor opined that patient is a known case of Potts Paraplegia . After discharge he was advised to have the follow-up treatment. As per the medical bills produced by the claimant he has spent Rs.5,07,967.24 towards medical expenses.

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Ex. P. 11 to 14 the case sheets and X-ray films do suggest that the petitioner was treated in that hospital both as in-patient and outpatient.

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The word ` quadraiparsis' as understood by reading the relevant medical jurisprudence - is a condition in which patient has muscle weakness in all four limbs (both legs and both arms), also called t etra paresis , this weakness and diminished mobility can be temporary or permanent. The evidence of the Doctor shows that, the petitioner cannot stand or walk, cannot carry out self care activities with upper limbs, no bladder control, no anal control, no sexual function. Thus, he has assessed the permanent physical impairment to the whole body to the extent of 100%. He is a Neuro and Spine Surgeon. He is the doctor who treated the claimant. He deposed that, the petitioner is still taking follow-up treatment and also physio-therapy treatment in his native place. He denied the suggestion that there is lot of improvement after the discharge of the claimant from hospital. Further, he has stated that, as per MRI report, there is no chance of further improvement. There is no improvement with regard to neurological ailment. But

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he states that the brain of the petitioner is functioning normally. He denied suggestion that he has assessed the disability exorbitantly.

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20 . Having regard to the debilitated state of the appellant/ petitioner, no amount of money can compensate him. He has been in such condition since accident took place, and will remain like this throughout his life. The appellant has also been deprived of his marriage prospects and he may require medical assistance from time to time. Being completely dependant, he would require the help of an attendant throughout his life.

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In view of the aforesaid factual features and also the doctor's evidence, the MACT ought to have assessed the permanent disability to the extent of 100%. As his income is assessed at Rs.7,000/- because of permanent disability, it is to be taken at 100% that comes to Rs..7,000/-. In view of Judgments of Hon'ble Supreme Court, 40% is to be super added to the notional income as future prospects. Then his monthly notional income would be Rs.9,800/- (7000+2800). That has to be multiplied by 12 to consider annual income i.e. Rs.1,17,600/-(9,800 x 12 months). The proper multiplier applicable is `16' as the petitioner

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was aged 33 years at the time of accident. Thus, loss of future earnings comes to Rs. 18,81,600/- (1,17,600 x 16). Thus, the compensation to be awarded to the petitioner for loss of future earnings due to disability would be Rs.18,81,600/- as against Rs.6,48,000/- awarded by the Tribunal.

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The claimant has stated that he has spent substantial amount towards medical expenses. The learned MACT has assessed the medical expenses at Rs.5,16,500/- based upon the documents produced by the petitioner. We do not find any fault or error in assessing the said medical expenses. In addition to the medical expenses, the petitioner must have spent substantial amount towards conveyance, nourishment, food and other charges based upon his treatment as an in-patient and also as an outpatient. MACT has assessed the same at Rs.30,000/- which does not require any interference. There cannot be any extra attendant expenses.

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The petitioner was aged 33 years when the accident took place. It is submitted that till date, because of permanent disability he is not married. Therefore, there is loss of marriage prospects to

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the petitioner. In view of the facts and circumstances as the MACT has awarded Rs.1,00,000/- towards loss of marriage prospects, we feel that this does not require any interference.

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The MACT has awarded compensation of Rs.1,00,000/towards loss of amenities. The claimant having sustained the permanent disability to the extent of 100%, he cannot lead a normal life. After assessing the evidence on record, we are of the opinion that the award of the MACT deserves to be modified so that, the claimant receives proper and just compensation for the injuries suffered by him. It is well settled that, compensation for personal injuries is higher as compared to fatal cases since in the former case, it is to be utilized by the victim of the accident and in the latter, by the legal heirs. It is true that, compensation cannot bring back the victim to the stage he enjoyed before the accident, but, it would provide him some solace and security for future. Therefore, towards loss of amenities, if Rs.3,00,000/- is awarded by modifying the award passed by the MACT, it would meet the ends of justice.

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Towards pain and sufferings, the MACT has awarded Rs.1,50,000/-. In view of the nature of injuries, period of treatment, and follow-up treatment, other factors and the pain being suffered by him, we feel that the award of the MACT does not require interference of this Court.

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From the medical records and the evidence of the doctor it reveals that the claimant has suffered serious injury called as `Quadraparsis'. Even the other injuries sustained by the claimant contributed to sustain 100% disability. Throughout his life, the claimant has to suffer. The injuries sustained by him must have put him in mental agony, trauma and suffering. He was/is completely discomfort. It must not be lost sight of the fact that because of the aforesaid injuries definitely there is loss of bodily integrity and it has affected his earning capacity or even enjoyment of his life. The extent of physical incapability so assessed by the doctor do establishes that throughout his life, he has to be taken care by the others. He is 33 years of age an youngster. He has to survive with all frustrations. He requires proper attendant throughout his life. Looking to the age of the claimant and also his physical condition,

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he has to bear the expenses towards his attendant and other allied charges. Therefore, a global compensation towards his Attendant and Other Allied Charges if awarded, would meet the ends of justice. Therefore, we assess the compensation under the said head globally at Rs.5,00,000/-.

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In view of these uncontraverted facts, we deem it fit and appropriate to award a lump sum amount of Rs. 1,00,000/- to the appellant towards future medical expenses. In view of already given the aforesaid discussion, the appellant is entitled to the following amounts towards compensation:

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Sl.No.	Heads	Amount
1.	Loss of future earnings	Rs.18,81,600/-
2.	Pain and Suffering	Rs. 1,50,000/-
3.	Medical Expenses	Rs. 5,16,500/-
4.	Loss of Amenities	Rs. 3,00,000/-
5.	Loss of Marriage prospects	Rs. 1,00,000/-
6.	Nourishment, attendant, conveyance and allied charges	Rs. 5,00,000/-
7.	Future medical expenses	Rs. 1,00,000/-
	TOTAL	Rs. 35,48,100/-

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The MACT without assigning any reasons, awarded interest at the rate of 9% p.a. The case was not involving liability on the contractual basis. Having regard to the provisions of Section 34 of CPC, the learned MACT ought to have awarded interest at the rate of 6% p.a.

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In view of foregoing reasons, the appeals filed by the Insurer and the claimant deserve to be allowed in-part. The award of the MACT is modified accordingly.

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Resultantly, we pass the following:

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ORDER

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(i) MFA No.10623/13 and MFA No.2840/14 are allowed in-part .

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(ii) The claimant is entitled for compensation of Rs.35,48,100/- with interest at the rate of 6% p.a. from the date of petition till the date of realization.

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(iii) Respondent no.2/Insurer shall deposit the said amount after adjusting the amount already deposited if any, before the MACT within four

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weeks from the date of receipt of a copy of this order.

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(iv) On such deposit, the Tribunal shall release the same digitally to the claimant on furnishing the required documents.

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(v) Registry shall transmit the amount in deposit if any, and the trial Court records to the MACT forthwith.

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Sd/JUDGE

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Sd/JUDGE

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Sk/-

The Divisional Manager v. N. Kumaresan

Case brief

What is this about?

What did the court decide?

The Divisional Manager v. N. Kumaresan

Case brief

What is this about?

What did the court decide?

What the court decided

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