Disposed

The Legal Manager v. Sri Shivakumar S

Karnataka HC24 Mar 2023MFA/2346/2016

Case brief

AI extract

What is this about?

High Court dismissed insurer's appeal and partly allowed claimant's cross-objection, enhancing compensation from Rs.1,03,18,389 to Rs.1,32,49,782 for a 28-year-old engineer rendered wheelchair-bound. Disability assessed at 90%, future prospects at 40% added, and future attendant charges granted.

What did the court decide?

Compensation enhanced from Rs.1,03,18,389 to Rs.1,32,49,782 with interest at 6% p.a. from petition date till realisation.

The Legal Manager Vs Sri Shivakumar S — Motor Accident Claims | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF MARCH, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON’BLE MR. JUSTICE C.M.JOSHI

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M.F.A. No.2346 OF 2016 (MV-I)

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C/W

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M.F.A.CROB NO.74 OF 2021 (MV-I)

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IN MFA NO.2346 OF 2016

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BETWEEN:

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THE LEGAL MANAGER ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, DB PLAZA, 3RD FLOOR, NO.47, WHILE'S ROAD, CHENNAI TAMIL NADU-600 014.

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ROYAL SUNDARAM ALLIANCE COMPANY LTD., SUBRAMANIAM BUILDING, II FLOOR, NO.1, CLUB HOUSE ROAD, ANNSASALAI, CHENNAI - 600 002. BY IT'S MANAGER.

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...APPELLANT

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(BY SRI.O MAHESH, ADVOCATE)

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AND:

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1 . SRI. SHIVAKUMAR S AGED ABOUT 31 YEARS, S/O B. SIDDARAMU, R/AT NO.63, 2ND FLOOR, 9TH CROSS, MUNESHWARA NAGAR, ULLAL MAIN ROAD, BENGALURU - 560 056.

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PERMANENT ADDRESS NO.9/1, VIVEKANANDANAGAR, WARD NO.06, T. NARASIPURA TALUK, BYRAPURA, MYSORE, KARNATAKA - 571 124.

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2 . P. SHIVAKUMAR MAJOR, S/O PUTTASWAMY, NO.5, 1ST MAIN ROAD, 2ND CROSS, CHALUVAPPA GARDEN, K.P. AGRAHAR, BENGALURU-560 023.

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…RESPONDENTS

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(BY SRI.K.SRINIVASA, ADVOCATE FOR R1; NOTICE TO R2 IS DISPENSED WITH V/O DATED 14.6.2021)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.01.2016 PASSED IN MVC NO.3495/2013 ON THE FILE OF II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, BENGALURU & CONCURRENT CHARGE OF SMALL CAUSES JUDGE AND XXVI ACMM,MACT (SCCH-19) AWARDING COMPENSATION OF RS.1,03,18,389/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.

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IN MFA CROB NO.74/2021

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BETWEEN:

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1 . SRI. SHIVAKUMAR. S AGED ABOUT 38 YEARS, S/O B. SIDDARAMU, SINCE THE APPELLANT IS PHYSICALLY AND NEUROLOGICALLY IMPAIRED HE IS NOT ABLE TO PROSECUTE THE CASE HE IS REPRESENTED BY HIS NATURAL GUARDIAN / FATHER SRI B SIDDARAMU S/O LATE. B BASAVAIAH NOW AGED ABOUT 68 YEARS BOTH ARE R/AT NO.63, 2ND FLOOR, 9TH CROSS, MUNESHWARA NAGAR, ULLAL MAIN ROAD, BENGALURU - 560 056. PERMANENT ADDRESS NO.9/1, VIVEKANANDANAGAR, WARD NO.06, T. NARASIPURA TALUK, BYRAPURA, MYSORE, KARNATAKA - 571 124. ...CROSS OBJECTOR (BY SRI.K.SRINIVASA, ADVOCATE )

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AND:

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1 . M/S. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD DB PLAZA, 3RD FLOOR, NO.47, WHILE'S ROAD, CHENNAI, TAMIL NADU - 600 014. BY ITS MANAGER.

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2 . P SHIVAKUMAR S/O PUTTASWAMY, MAJOR BY AGE, R/AT NO.5, 1ST MAIN ROAD, 2ND CROSS, CHALUVAPPA GARDEN, K.P. AGRAHARA, BENGALURU - 560 023.

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…RESPONDENTS

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(By SRI O.MAHESH, ADVOCATE, FOR R1)

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THIS MFA.CROB IN MFA NO.2346 OF 2016 IS FILED UNDER ORDER 41 RULE 22(1) OF THE CPC, READ WITH SECTION 173(1) OF MOTOR VEHICLE ACT, AGAINST THE JUDGMENT AND AWARD DATED 01.01.2016 PASSED IN MVC NO. 3495 OF 2013 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, BENGALURU AND CONCURRENT CHARGE OF SMALL CAUSES JUDGE, XXVI ACMM (SCCH-9), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS M.F.A. AND MFA CROB HAVING BEEN HEARD AND RESERVED FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF JUDGMENT THROUGH VIDEO CONFERENCING AT KALABURAGI BENCH, THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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MFA No.2346/2016 is preferred by the Insurance

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Company and MFA Crob.74/2021 is preferred by the petitioner through his natural guardian/father, being aggrieved by the judgment and award dated 01-01-2016 passed in MVC No.3495/2013 by the learned II Additional

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Small Causes Judge and XXVIII ACMM, Bengaluru and Concurrent Charge of Small Causes Judge and XXVI ACMM (SCCH-9), whereby the petition came to be partly allowed.

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The parties are referred to as per their ranks before the Tribunal for the sake of convenience.

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The brief facts are as below:

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On 19.01.2013, at about 10 p.m., when the

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petitioner was riding a motor cycle bearing Reg.No.KA-41U-3419 on Uttarahalli Main Road, in order to go to the residence of his wife at Kodipalya, near Kengeri. When he reached near the junction of Kodipalya, at that time, a Tata Indica Car bearing Reg.No.KA-02-AC-1125 driven by its driver in a rash and negligent manner with high speed dashed against his motor cycle and thereafter to another two wheeler bearing Reg.No.KA-41-W-2723. Due to which, the petitioner fell down and sustained grievous injuries. Immediately, he was shifted to BGS Global hospital, wherein he took treatment as an inpatient and spent huge

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amount towards treatment and in spite of best treatment, no improvement in his health and physical condition and he is in semi consciousness. It is contended that prior to the accident, petitioner was hale and healthy and he being a B.E. Graduate (Mechanic), working as a Senior Executive (Sales) at FAG Bearings India Ltd., w.e.f. September 2012 and getting monthly emoluments of Rs.54,167/- and due to the accidental injuries, the said earnings had come to a stand still and it is impossible for him to work and earn his lively hood. Hence, he prays to allow the petition by granting a compensation of Rs.1,00,00,000/-.

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In response to the notice issued by the Tribunal, respondents No.1 and 2 appeared through their counsels and filed their written statements.

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Respondent No.1/insurance company has disputed

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that the accident was on account of rash and negligent driving by the driver of the offending Tata Indica Car bearing Reg.No.KA-02-AC-1125 and contended that the petitioner himself is negligent in causing the accident who was riding the motor cycle in a rash and negligent manner

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without observing other vehicles coming from opposite direction and came to the right side of the road i.e. wrong side of the road and to avoid a ditch on the left side of the road, dashed against the offending car. It has admitted that offending vehicle was duly insured with it as on the date of the accident, but contended that its liability, if any, is subject to terms and conditions of the policy.

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The 2nd respondent/owner- cum- driver of the offending car disputed the involvement as well as cause of the accident. He has contended that the accident is due to negligence of the petitioner who was riding the motor cycle without knowledge of riding and without possessing valid driving licence in a rash and negligent manner without observing the other vehicles coming from opposite side and came to right side of the road i.e. wrong side, to avoid ditch on the left side of the road, dashed against the car and again dashed to another motor cycle. He has further contended that the petition is bad for non joinder of necessary parties as the rider, owner and insurer of the another motor cycle are the necessary parties. However,

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he contends that he had insured his car with the 1st respondent.

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Both the respondents have disputed the physical disability suffered on account of the injuries sustained by the petitioner in the motor vehicle accident. They also disputed the age, income of the petitioner, 100% reduction of his working capacity and amount spent towards medical treatment and contended that the compensation claimed in the petition is exorbitant.

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On the basis of the above pleadings, the Tribunal

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has framed necessary issues for its consideration.

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Before the Tribunal, the father of petitioner got examined himself as PW1, and examined four witnesses as PWs- 2 to 5 and marked Exs.P1 to P44. 2^nd respondent, owner of the car has examined himself as RW1. The 1st respondent-Insurance company did not adduce or produce any oral or documentary evidence.

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On hearing both the sides, the Tribunal

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answered the issue Nos.1 and 2 in the affirmative and proceeded to allow the petition in part by awarding a sum of Rs.1,03,18,389/- together with interest under different

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heads as under:

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Injury pain and Sufferings	Rs. 1,00,000/-
Loss of earnings during medical treatment	Rs. 1,81,126/-
Loss of leave encashment benefit at the time of retirement of PW1	Rs. 2,86,337/-
Medical expenses	Rs. 2,45,500/-
Loss of future earnings	Rs. 92,37,426/-
Loss of amenities and loss of future life expectancy	Rs. 1,00,000/-
Conveyance, Nourishment, food and attending charges	Rs. 68,000/-
Future medical expenses	Rs. 1,00,000/-
Total	Rs.1,03,18,389/-

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Aggrieved by the said judgment and award, the

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Insurance Company has preferred an appeal in MFA No.2346/2016 and petitioner through his natural guardian/father has preferred cross objection in No.74/2021 before this Court.

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The appellant-Insurance company contends that the claim petition was not maintainable since the permission as required under order 32 Rule 1 to 14 of CPC was not obtained or claimed on the ground that the

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injured/petitioner was unable to prosecute the claim petition. It is further urged in the appeal memo that the finding of the Tribunal on the issue of negligence suffer from non consideration of the material evidence and that the issues framed were also not proper. It is contended that claimant has not led in any positive evidence in respect of either manner of the accident or negligence. The complainant or any other eye witnesses of the accident should have been examined by the petitioner. It is contended that the spot sketch and mahazar which are produced at Ex.P8 and P29 were prepared a day after the accident and therefore, they should have been proved by examining the author of the documents. It is contended that the Tribunal ought to have seen that mere production of police records is not the proof of the said documents as it did not comply the provisions of Section 76 of the Evidence Act. Assailing the opinion of the Doctor that there was 100% disability and disputing the quantum of compensation awarded under the head of the medical expenses, loss of income during the laid up period and

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future loss of earnings on the ground that there is duplication of heads of the compensation, the insurance company has preferred this appeal.

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The petitioner/cross objector who has preferred

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cross objection No.74/2021 through his natural guardian, father, has contended that the future prospects of the earnings of the petitioner were not considered by the Tribunal while arriving at the conclusion regarding the multiplicand. The petitioner is aged about 27 years at the time of the accident and therefore, he had bright future prospects as he was a Mechanical Engineer by profession and working in FAG Bearings India Limited as a Sales Executive. It is also contended that the compensation awarded towards pain and suffering and loss of amenities to the life is grossly inadequate and there is a need for enhancement in the same. It is contended that the compensation towards the future attendant charges should have been awarded by the Tribunal as the petitioner has suffered 100% disability and is dependent upon for attendant for his daily needs also.

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In pursuant to the notice issued by this Court,

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insurance company has appeared through its counsel in MFA Crob.No.72/2021 and similarly, counsel Sri Srinivasa

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K., has appeared for petitioner/claimant in MFA No.2346/2016 and notice to respondent No.2 is dispensed with. The Tribunal records have been secured.

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We have heard learned counsel Sri O. Mahesh, appearing for the appellant/Insurance company and learned counsel Sri K. Srinivasa, appearing for the petitioner/cross objector and perused the Tribunal records.

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The learned counsel for the Insurance Company Sri O. Mahesh, vehemently submitted that non obtaining permission under order 32 CPC render the petition to be not maintainable and also that the owner and insurer of the another motor cycle have not been made as parties and as such, the petition suffers from non joinder of necessary parties. He has further contended that Ex.P28 and P29 are not the certified copies and therefore, the negligence on the part of the car driver cannot be said to

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be proved. Then he has drawn our attention to the fact that in the cross-examination of PW1, he has admitted that the medical expenses have been reimbursed and that the petition was filed when the petitioner was in coma. He has also drawn our attention to the fact that during the treatment, petitioner has received the salary and as such, there is duplication of the award of the compensation to the petitioner. He submitted that when there is 100% disability considered by the Tribunal, a separate head of compensation under the head of loss of income during the laid up period could not have been granted. Lastly, he submits that the evidence of the Doctor regarding disability do not show that there is total disability but the petitioner can sit erect and can move in a wheelchair. Therefore, since it is not a case of paraplegia or quadriplegia, taking the disability of 100% is impermissible.

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Per contra, learned counsel for the petitioner Sri. K. Srinivasa, has drawn our attention to the fact that the medical reimbursement received by the petitioner has

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been excluded from the award by the Tribunal. He has reiterated the contentions made by him in the cross objection. He submits that petitioner’s wife has been divorced and only child is living with the wife of the petitioner and she is working. Therefore, he contends that except the PW1, who is the father, there is none else to look after him and that the expenses of the child have also to be borne by the petitioner. Therefore, he has sought enhancement of the compensation under the head of future loss of income by including the future prospects and also under the head of future attendant charges.

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The first contention raised by the learned counsel

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for the appellant-insurance company is regarding the maintainability of the petition on the ground that, permission as required under order 32 CPC had not been obtained. A perusal of the impugned judgment shows at para 8 that, petitioner had filed an application seeking permission to prosecute the petition through his father. Further, the records reveal that the petitioner Shivakumar filed IA No.2 under Section 151 of CPC seeking permission

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to tender his evidence through his father. The application is accompanied by an affidavit by the petitioner and the appellant/ insurance company has not filed any objection to the same. Therefore, when the Tribunal had considered this application and allowed it, we do not find any merit in the contention raised by the learned counsel for the appellant. A mere non-mentioning of Order 32 in the application is no ground that could be raised in appeal, when such application was not objected to by the Insurance company.

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In order to prove that the accident had occurred due to the negligence of the car driver, the petitioner has placed reliance on the police papers which are at Exs.P1 to P3, P27 to P30. These documents show that the complaint was lodged by one Haneef who was the rider of another motor cycle and who had also suffered the injuries in the accident. The complaint and other police papers clearly indicate that the car came on the wrong side and hit two motor cycles resulting in the accident. The car has dashed

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to the vehicle of the said Haneef initially and thereafter, it dashed to the motor cycle of the petitioner. Both the injured were shifted to BGS hospital in an ambulance. The driver of the car had left the vehicle stranded at the spot and had ran away. Later, the police traced him and filed the chargesheet. Obviously, the chargesheet has not been challenged by RW1, who is the owner- cum- driver of the car. Now the chargesheet is disputed by the insurance company alone. It is evident that RW1 has filed his written statement and has also adduced his evidence. Therefore, we doubt that the permission as required under Section 170 of the MV Act could be availed by the Insurance company. Nothing is brought to our notice that the insurance company had sought the permission of the Tribunal under Section 170 of the MV Act, to take up all the contentions/defences available to the owner. Moreover, the evidence of RW1 shows that he had pleaded guilty before the criminal court and he had not challenged the chargesheet. Under these circumstances, the contention of the learned counsel for the insurance company that

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there is insufficient evidence regarding the negligence of the driver of the car cannot be accepted.

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Sofar as Exs.P28 and P29 are concerned, they are the true copies furnished by the concerned police station to the petitioner. It is a settled principle of law that a proceeding under the provisions of Section 166 of M.V. Act, is a summary proceeding and strict rules of evidence including the principles of proof beyond reasonable doubt are not applicable. The Tribunal can adjudicate the matter if the acceptable evidence is placed on record. Moreover, the Ex.P30 which is the Accident Information Report furnished by the concerned police station is not rebutted either by the owner or by the insurance company. The M.V. Act recognizes such Accident Information Report as per Ex.P30 and the Exs.P28 and P29 are only supporting documents for Ex.P30. There is absolutely no submission on behalf of the insurance company regarding Ex.P30 which is contemplated under the Motor Vehicles Act and the Rules framed there-under. Therefore, this contention is also not sustainable. The Tribunal has considered the

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documents available and the evidence of RW1 in paras 9, 10 and 11 of the impugned judgment in detail and we are in agreement with the conclusion reached by it. The accident occurred due to the actionable negligence of the driver of the Indica car.

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Having come to the conclusion that the accident had occurred due to the actionable negligence on the part of the driver-cum-owner of the indica car, we proceed to consider the compensation awarded by the Tribunal.

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The perusal of Ex.P43 and P44 which are the driving licence and the PAN card of the petitioner show that he was born on 21-8-1984 and thereby established the fact that he was aged 28 years at the time of the accident. The petitioner contended that he was a B.E. Graduate in Mechanical Engineering and working as Senior Executive- Sales in FAG Bearings India Limited. The certificate issued by the employer at Ex.P24 discloses the various allowances and salary that was admissible to the petitioner.

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Pay slips, relieving certificate and appointment order of the petitioner are produced at Exs.P36 to P38. These documents clearly indicate that during the months of February 2013 to May 2013, the petitioner was drawing the salary of Rs.48,084/-, Rs.32,918/-, Rs.42,109/-, Rs. 48,109/- and Rs.6,191/-. It is relevant to note that accident has occurred on 19.1.2013 and thereafter, the basic salary admissible to him has been paid by M/s FAG Bearings India Limited. Ex.P37 is the salary certificate and Ex.P38 is the appointment letter. It is evident that after the accident on 19-1-2013, the petitioner was paid the salary for about two months and thereafter, the salary has been reduced and ultimately, he was terminated from service. These documents coupled with Form No.16 issued by the employer show that the emoluments of the petitioner was Rs.54,157/- per month. The Tribunal has considered the income of the petitioner at Rs.48,109/- as certain allowances were not coming in the purview of the salary and came to the conclusion that the yearly income

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works out to Rs.5,77,308/- and by deducting the income tax as well as the professional tax, the multiplicand was held to be Rs.5,43,378/-. On careful perusal of these documents we are in agreement with the conclusions reached by the Tribunal.

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It is relevant to note that the Tribunal has considered the disability of the petitioner to 100%. PW2 is the Orthopedician and he states that the disability due to fracture injuries are 30.8%. However, PW3 has stated about the neurological disabilities but has not stated the percentage of the disability.

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The records at Exs.P2 to P4, 13, 14, 31 to 35 which includes the case-sheets of the hospital would show that petitioner had sustained Type II open fracture of shaft of right tibia, closed fracture of shaft of right femur and cerebral fat embolism with autonomic dysfunction. The first two injuries being fracture have united after treatment. The cerebral fat embolism has resulted into permanent neurological disability and it is evident that the

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petitioner is unable to stand on his own and move. The evidence of Medical officer Dr.Vivekananda M. who is examined as PW3 show that petitioner has severe difficulty in talking with spasticity of tongue, has disability in chewing and swallowing food and has spastic quadriparesis, has disturbance in the form of increased frequency, hesitancy and occasional urinary incontinence. He also deposed that petitioner is wheel chair based and requires assistance for his day today activities and he requires support to stand, he cannot take even few steps but he is able to sit in the chair without support. He has also deposed that he can lift the upper limbs but the weakness in all the four limbs is more in distal than proximal. He also noticed that the wrist and ankle flexion are restricted with foot drops. The cross-examination of PW3 show that though there was no head injury, there was a brain injury due to cerebral fat embolism.

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A careful perusal of a case sheets and discharge summary show that these observations were also

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mentioned in them. Coupled with this, the photographs of the petitioner produced also show the observations made by PW3.

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It is pertinent to note that the Tribunal considering the nature of the disabilities suffered by the petitioner, and considering the avocation of the petitioner came to the conclusion that there is 100% disability. It is relevant to note that the mental faculties of the petitioner are good and his delivery of speech and mobility are restricted. The petitioner was an Engineer by profession and he was a Senior Sales Executive. He had a job which involved movement and visiting the clients and customers. Therefore, when the petitioner has suffered such kind of disability, definitely, the functional disability is more than the physical disability assessed by PW2.

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The Tribunal took the disability at 100%. The evidence shows that the mental faculties of the petitioner, memory, and cognitive capabilities are not impaired. The distal parts of the upper and lower extremities have lost

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the control and the wrist as well as the foot drops has occurred. The Tribunal notices this aspect as the twist of the wrist. It cannot be forgotten that the human mind is genius. When the mental faculties of the petitioner are good, the physical capabilities have been totally disabled; and when we consider that the petitioner was a Senior Sales Executive with B.E. degree in Mechanical Engineering; in our considered opinion, the disability being not a quadriplegia, but it is nearer to quadriplegia. The functional disability could not have been 100% as opined by the Tribunal. It is evident that the petitioner can sit erect on a wheelchair but has to be assisted by caregivers. The evidence also shows that the PW1 who is the father of the petitioner, had to apply for leave to take care of the petitioner and he has claimed his loss of salary in that regard. The Tribunal has allowed such claim by noticing that the petitioner was in need of a caregiver and the wife of the petitioner was not available to help the petitioner. Under these circumstances, we hold that the disability of the petitioner is 90% but not 100%. We have also kept in

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mind that the functional disability has been considered but not the physical disability of the petitioner.

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Having dealt with the multiplicand as well as the disability, we now proceed to consider the compensation under various heads.

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The Tribunal has granted a sum of Rs.2,86,337/to PW1 as loss of leave as he had applied for leave and took care of the petitioner. It has also come in the evidence that the petitioner is very much in need of caregiver and he is depending on another person to move. The PW1 cannot be a permanent care giver for the rest of the life of the petitioner. No-doubt, PW1 being the father of the petitioner applied for leave and took care of the petitioner. The learned counsel appearing for the petitioner has contended that the future attendant charges are also to be considered. When the evidence of PWs 2 and 3 coupled with the other attendant circumstances show that the petitioner is wheelchair bound for the rest of his life, the claim for future attendant charges cannot be denied.

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In our considered opinion, the petitioner is entitled for the future attendant charges also. Therefore, considering the future attendant charges to be at Rs.4,000/- per month, by adopting the multiplier of 17 for the rest of the life of the petitioner, he is entitled for Rs.8,16,000/-(4,000/- x 12 x 17). The said amount shall be inclusive of the claim of PW1 that he has lost the salary of Rs.2,86,337/- and as also held by the Tribunal.

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The learned counsel for the petitioner has contended that the petitioner is entitled for future prospects also. He contends that the petitioner was aged about 27 years and earning Rs.54,000/- per month and he had a bright future and therefore, the future career prospects should also be considered while awarding the compensation under the head of loss of future income.

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The Apex Court in the case of Oriental Insurance Company Limited Vs Kahlon @ Jasmail Singh Kahlon (deceased) through his Legal representative Narinder

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Kahlon Gosakan and another¹ has observed in para Nos. 19 and 20 as below:

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“19. In Parminder Singh (supra) compensation on the basis of complete loss of income, the percentage of disability, future prospects were granted applying the relevant multiplier. Again, in Kajal (supra) the injured was assessed as 100 per cent disabled, considering all of which compensation was awarded on the notional future prospects along with relevant multiplier. The loss of income to the injured in the facts of the present case has to be assessed at 75%. In view of Raj Kumar (supra) there shall be no deduction towards personal expenses.

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We see no reason to deviate from the consistent judicial view taken by more than one High Court that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor’s fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased.”

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The said decision of the Apex Court was fortified by another decision of the Apex Court in the case of Paraminder Singh Vs. New India Assurance Company Limited and others² , wherein, it was held in para 5 that, “when the disability was 100%, the future prospects are also to be included while assessing the compensation towards future

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1 2021 SCC Online SC 691

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2 (2019) 7 SCC 217

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loss of income.” Further, the Apex Court in the case of Sanjay Kumar Vs. Ashok Kumar and another³ has also considered this aspect and in case of the severe injuries, the future prospects are also to be considered by the Tribunal. The decision of the Apex Court in Pranay Sethi’s case laid down the manner in which the future prospects are to be considered involving the death of a person in the accident. We find no reason not to adopt the same analogy to the case on hand.

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The petitioner was a salaried employee of FAG Bearings India Limited and the appointment letter, agreement, evidence of PW4 establish that he was a salaried employee, therefore, adopting future prospects of 40% of the income of the petitioner, the compensation has to be calculated. Hence, by adopting the annual income of Rs.5,43,378/- as discussed supra and adding 40% (Rs.2,17,351/-) to the same, the effective multiplicand for calculating the loss of future income comes to Rs.7,60,729/- (5,43,378/- + 2,17,351/-). Thus, the loss of

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3 (2014) 5 Supreme Court Cases 330

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future income is calculated as (Rs.7,60,729/- x 17 x 90%)=Rs.1,16,39,156/-.

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The Tribunal has granted a sum of Rs.1,00,000/-

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under the head of pain and suffering, a sum of Rs.1,00,000/- under the head of loss of amenities in life and a sum of Rs.1,00,000/- towards future medical expenses. We find no reasons to interfere with the same as it is based on sound principles and the evidence on record.

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The Tribunal has awarded a sum of Rs.1,81,126/- towards loss of income during the laid up period. The insurance company has contended that when 100% loss of income has been considered, the loss of income during the laid up period could not have been granted. We do not see that it is in fact an overlapping compensation. The fraction of a year during which the compensation is assessed in respect of the future loss of income and the laid up period, is taken care of while selecting the multiplier. It is to be noted that the multiplier

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is a broad assessment of the number of years a person can live after the accident or the incident. The multiplier includes the various imponderables like the deceased/injured suffering any disease, accidents, or such other causes. Therefore, it appears that the appellant insurance company is trying to find fault with each and every aspect of the calculation. The grant of the compensation by the Tribunal does not include in its fold the method of the calculation of a money lender. It is for this reason, that the strict rules of evidence are not applicable for the Tribunals. Therefore, we are not inclined to accept the contention of the learned counsel Sri O Mahesh, that there are overlapping of a few thousand rupees in the calculation. Basically, the adoption and the selection of the multiplier is also nothing but a guess work made on the basis of the actuarial parameters. Therefore, we reject this contention of the learned counsel for the appellant.

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The Tribunal has granted a sum of Rs.2,45,500/towards medical expenses. A perusal of para 19 of the

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impugned judgment discloses that the Tribunal has given elaborate reason regarding admissibility of each of the bills produced by the petitioner or whether such expenses are to be permissible or not. It has also considered the reimbursements which have been made to the petitioner from the Medi-claim policy. The sum of Rs.2,45,500/awarded by the Tribunal is in respect of the document produced at Exs.P21, 22 and 41. These bills are original bills and they are not the subject matter of the reimbursement to the petitioner. Therefore, we find no substance in the arguments advanced by the counsel for the appellant.

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The Tribunal has awarded a sum of Rs.68,000/towards conveyance, nourishment, food and attendant charges considering the fact that petitioner was an inpatient for 68 days initially. We do not find any reason to interfere with the same.

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In view of the discussions made above, the

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compensation is re-assessed as below:

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Injury painand Sufferings	Rs. 1,00,000/-
Loss of earnings during medical treatment	Rs. 1,81,126/-
Future attendant charges (inclusive of leave encashment benefit at the time of retirement of PW1)	Rs. 8,16,000/-
Medicalexpenses	Rs. 2,45,500/-
Loss of future earnings	Rs.1,16,39,156/-
Loss ofamenitiesin life	Rs. 1,00,000/-
Conveyance, Nourishment, food and attending charges	Rs. 68,000/-
Future medical expenses	Rs. 1,00,000/-
Total	Rs. 1,32,49,782/-