Partly allowed

Sri Aanand S.B. v. the Bajaj Allianz General Insurance Co. Ltd.

Karnataka HC7 Jul 2023MFA/336/2013

Case brief

AI extract

What is this about?

The High Court Enhanced the compensation awarded to a software engineer injured in a road accident. Addressing disputes over medical reimbursement and disability impact, the court modified the tribunal's award, increasing total compensation from 3.1 lakhs to 10.6 lakhs by adjusting individual heads and applying joint and several liability on insurers.

What did the court decide?

Appeal allowed in part; compensation enhanced to Rs. 10,60,000; insurers directed to deposit 50% each.

Sri Aanand S.B. Vs the Bajaj Allianz General… — 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 7^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.336/2013 (MV-I)

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BETWEEN:

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SRI. AANAND S B S/O, BALASUBRAMANIYAN S.N. AGED ABOUT 27 YEARS, R/AT NO.702, KOUSTHUBAM, 8^TH MAIN, 2^ND CROSS, RBI LAYOUT, J.P. NAGAR, 7^TH PHASE, BANGALORE - 560 055. …APPELLANT

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(BY SRI. SHANTHARAJ K., ADVOCATE FOR SRI. VASUDEVAMURTHY B.K, ADVOCATE)

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AND:

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THE BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD NO.31, TBR TOWER, 1ST CROSS, NEW MISSION ROAD, ADJACENT TO JAIN COLLEGE & BANGALORE STOCK EXCHANGE, BANGALORE-23. REP. BY ITS BRANCH MANGER.

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CONSTRUCTION SOLUTION (BANGALORE) PVT. LTD YESHWANTHAPUR INDUSTRIAL SUBURB, 2ND STAGE, YESHWANTHPUR, BANGALORE-22.

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ICICI LOMBARD GENERAL INSURANCE CO. LTD NO.69, SVR COMPLEX, 1ST FLOOR, HOSUR ROAD, MADIVALA, BANGALORE-34.

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M/S. CIPLEASY TRANSPORT SOLUTION PVT. LTD NO.12/10, 1ST FLOOR, ABOVE VIJAYA BANK, MSR MAIN ROAD, GOKULA BANGALORE - 54. …RESPONDENTS

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(BY SRI. O. MAHESH, ADV. FOR R1; SRI.B. PRADEEP, ADV. FOR R3; NOTICE TO R2 & R4 DISPENSED WITH V/C/O DTD:03.01.2017)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLE ACT AGAINST THE JUDGMENT AND AWARD DATED 04.06.2012 PASSED IN MVC NO.5699/2010 ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MFA AFTER HAVING BEEN HEARD, RESERVED FOR JUDGMENT, THIS DAY, RAMACHANDRA D. HUDDAR, J., PRONOUNCED THE FOLLOWING:

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JUDGMENT

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"Whether the compensation awarded to the appellant under the impugned award is just?" is the question involved in this appeal.

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This appeal arises out of a common judgment passed by the XXII Addl. Small Causes Judge and Member, MACT, Bengaluru in MVC Nos. 5698, 5699 and 5700/2010 dated 4th June 2012. The appellant is aggrieved by the award passed in MVC 5699/2010.

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The records do reveal that, being aggrieved by the said Judgment and Award in MVC No.5700/2010, the claimant therein had preferred MFA No.334/2013(MV) before this Court. The said MFA was disposed of vide Judgment dated 9th November 2018 by this Court affirming the findings with regard to the rash and negligent driving of the offending vehicle involved in the accident and fastened the liability on the Insurer of the offending vehicle. The said finding has become final. Therefore, this appeal is restricted

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with regard to the adequacy of the compensation awarded to the appellant being the claimant in MVC No.5699/2010.

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For the purpose of convenience, the parties will be referred to henceforth as per their respective ranks before the MACT.

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That, on 31.10.2009 at about 2.00 a.m. the

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present claimant and other claimants in other similar petitions stated supra, were proceeding in a car bearing Regn.No.KA-04-C-3018 on B.B.Road, near Big Market, Sahakaranagar from south to north direction. The lorry bearing Regn.No.KA-02-C-6397 was parked in the middle of the road without parking light signals and following the traffic rules. It is alleged that, the Driver of the said car could not observe the Lorry which was parked in the middle of the road and dashed against the parked Lorry on its hind side due to which, the inmates of the said car sustained grievous injuries. The petitioner being one of the injured passengers was shifted to Columbia Asia Hospital,

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Bengaluru. Thereafter, he was shifted to M.S.Ramaiah Hospital, Bengaluru.

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It is stated that petitioner underwent multiple surgeries on his person. He has spent more than Rs.14 lakhs towards medical expenses. He was a Software Engineer and working as Group Leader in Honeywell Technology Solutions and was drawing salary of Rs.9,06,000/- p.a. Due to the accidental injuries, he is unable to continue his profession. It is stated that, with regard to the said accident, the Yelahanka Traffic Police have registered the case against the driver of Lorry in Crime No.207/2009 for the offences punishable under Sec.279 and 337 of IPC.

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At the relevant time, respondent Nos. 1 and 2 were the Insurer and registered Owner of the said lorry and respondent Nos. 3 and 4 are the Insurer and Owner of Car in which the claimant was travelling.

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Respondent No.1 being the Insurer of offending Lorry contested the petition by filing objections denying the entire allegations made in the petition. But issuance of Insurance Policy and its validity as on the date of accident was admitted. But, it was contended that its liability is subject to terms and conditions of the policy. The petitioner is not entitled for compensation as prayed for. There was no negligence on the part of the lorry driver. The claim is exorbitant. The alleged permanent disability, treatment taken by the petitioner and spending of Rs.14 lakhs towards the medical expenses was denied.

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Respondent No.3 being the Insurer of Car

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contested the petition by filing written statement denying each and every assertion made in the claim petition. It is contended that liability is subject to terms and conditions of the policy. The accident has taken place because of negligence on the part of the driver of the lorry who had parked the lorry in the middle of the road without any

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indicator or signal. So contending respondent Nos.1 and 3 prayed to dismiss the petition.

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Respondent Nos. 2 and 4, the owners of Lorry

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and car did not contest the petition.

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Based on the rival pleadings of both the parties, the learned MACT framed relevant issues. To substantiate the claim of the present claimant, he entered the witness box as PW.1 and examined Dr.D.J.Navin Chand as PW.4 to prove the disability and on behalf of the present claimant, Ex.P1 to P17 and Ex.P43 to P45 were marked. To rebut the evidence of the petitioners, in the aforesaid petitions, one Sri P.B.Ganapathy the Legal Executive of respondent No.1 was examined as RW.1 and on his behalf Ex.R1 to R7 were marked.

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The learned MACT, after hearing the arguments, relying upon the documents produced by the petitioners stated above held that the said accident occurred due to the

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actionable negligence on the part of the Lorry driver in parking the said lorry without any indicator and without following the traffic rules and regulations and also held that, there was contributory negligence on the part of the car driver. Thus held that both lorry driver and car driver contributed in causing the accident to the extent of 50% each. PW.4 the doctor who treated the present claimant assessed the permanent disability to the whole body at 32%. The MACT taking into consideration of the evidence placed on record by the claimant and considering his continuation of the service in Honeywell Technology as Software Engineer awarded the compensation of Rs.3,10,000/- on all the heads. The MACT awarded the compensation to the claimant as per the table below by fastening the liability equally on the Insurer of the offending vehicle i.e. Lorry and Car:

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Sl. No	Heads	Amount in Rs.
.
1.	Pain and Suffering	1,00,000.00
2.	Conveyance Nourishment Expenses	30,000.00
3.	Disability	1,00,000.00
4.	Future Medical Expenses	50,000.00
5.	Loss of amenities and Enjoyment of life	30,000.00
	Total	3,10,000.00

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The claimant has challenged the said award on

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the ground that the quantum of compensation awarded by the MACT is on the lower side. Sri.Shantharaj K learned counsel for the petitioner submits that though the doctor has assessed the disability to the extent of 32% to the whole body, the MACT has not taken into consideration the said disability and has not awarded any compensation towards the said loss of income due to disability. The MACT has not considered the medical records as well as the income tax returns etc., so produced by the claimant. The compensation so awarded on various heads is on lower

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side. The Tribunal ought to have added future prospects to the income of the claimant and granted compensation on various conventional heads.

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As against this submission, Sri O.Mahesh, learned counsel for respondent-Insurer justified the impugned award contending that the medical records produced did not show that the claimant had suffered said 32% permanent physical disability. It is submitted that PW.4 has given exaggerated version regarding disability. He submits that, no interference is required with regard to the findings of the MACT.

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As stated above, in the connected MFA no. 334/2013, decided on 9th November 2018, already this Court has held that the said accident has taken place because of the actionable negligence on the part of the lorry driver bearing Regn.No KA-02-C-6397 car driver bearing Regn. No.KA-04-C-3018 and fastened the liability on the owner of the lorry and car with a direction to

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respondent no.1 and 3 to indemnify the compensation so awarded to the extent of 50% each. Challenging the said judgment, no appeal has been filed by respondent no.1 and 3. Thus, the said judgment has become final. As this petition arises out of the same accident, does not warrant a different finding on the actionable negligence. Therefore, now we are concerned about the quantum of compensation.

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None of the respondents have preferred any

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appeal being aggrieved by the said award passed by the MACT. Thus, the liability fastening liability on respondent nos. 1 and 3 has attained finality.

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As per the evidence of PW.1 and 4, the claimant

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and the Doctor and Ex.P4 the wound certificate the claimant had suffered the following injuries:

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a. Fracture of the right femur

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b. Compound Fracture of the left femur

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c. Fracture of the nasal bone

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d. Fracture of right Orbit

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e. Laceration Right Elbow

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f. Dislocation Right 5th Finger

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g. Laceration of the scalp

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It is opined by the Doctor that the injuries

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mentioned in Sl. Nos.(a) and (b) were grievous in nature and (c) and (d) were simple in nature.

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As per the evidence of PW.1 the claimant, at the time of his admission, doctor also diagnosed with the

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following fracture and other injuries stated at e, f and g:

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e. Fracture of the Orbital bone of the left side

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f. Intraventricular bleeding in the brain

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g. Multiple Abrasions all over the body

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He has stated that, he was admitted into

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Columbia Asia Hospital and took treatment as an in-patient for 20 days. In the said Hospital he underwent multiple

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surgeries, in all he underwent three operations for implant fixation to his right femur and left femur so also closed reduction of 5th metacarpal of joint of right hand was done. It is his further evidence that, he lost his earnings for a period of two and half months and he worked from home only for a period of four months as he was on wheel chair for about six months.

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He says he has spent Rs.5,00,000/- towards

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medical expenses and other allied expenses, he was further admitted for the second time in the hospital on 28.12.2009 for right orbital fracture repair till 30.12.2009. He was working as a Software Engineer at Honeywell Technology Solutions and was drawing a salary of Rs.8,43,436/- p.a. Prior to the accident, he was hale and healthy and because of these accidental injuries he has become physically disabled. He is deprived of his livelihood and amenities. Even on the date of giving evidence, he was not able to stand properly for long time. He was suffering from severe pain, he used to limp and could not walk a short distance, could not climb the stairs or run. He is unable to use the Indian toilet. He is suffering pain. Fracture sites were not recovered. He cannot see picture properly through his right eye since he had pierced injury to his right eye which is affecting his day-to-day work. He had to undergo two more

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operations so as to remove the implants which require further expenses.

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In support of his evidence, he has produced discharge summary as per Ex.P8 and 9 Medical Bills Ex.P10 and 11. So also, to show his income, he has produced salary slip as per Ex.P13, copy of the Bank Pass Book as per Ex.P14 (original pass book was produced before the Court and taken back), Form-16 as per Ex.P15 and 16.

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Though lengthy cross-examination is directed to this PW.1 except denial, nothing is elicited in the crossexamination. During cross-examination, he states that he is married person. According to him, in his house, in all five family members are residing. His company has provided conveyance facility to him by providing a vehicle. To that effect, there will be deduction in his salary. He is consistent throughout his evidence that he is physically disabled.

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PW.4 being the Doctor, a consultant Orthopaedic

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surgeon at Columbia Asia Hospital states that as per the Hospital records, the claimant was admitted in the hospital on 31.10.2009 at around 2.45 a.m. with a history of road traffic accident at 2.00 a.m. on that day near Sahakaranagar on Airport Road. On examination, he noticed the aforesaid injuries. He also states that claimant underwent surgical treatment for fracture of right femur, left femur, nasal bone and right orbit and right hand. During post-operative period, he was treated in the ICU and was discharged on 20.11.2009. On 2.2.2012 he examined the claimant to assess the disability and on clinical examination, he noticed pain and limping on the left lower limb, he has difficulty to travel in public transport and unable to drive the vehicle. He had difficulty in standing for long time. He noticed that in all clinical examination of injuries, he assessed disability to the extent of 32% and the said disability may come in the way of his work.

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In the cross-examination, PW.4 (Doctor) has stated that claimant was given Fitness Certificate about 2 and half years back and the fracture so sustained by the claimant was united. He denied the suggestion that the disability so assessed by him is improper. He states that as per the medical records, there is a mention that the claimant can perform his day-to-day activities. He also admits that as the claimant is a Computer Engineer, 32% disability so assessed by him would not affect his earning as well as his discharge of official duties. Thus, this admission so given by PW.4 clearly establishes that though the claimant has sustained 32% physical disability, that has not caused him functional disability in his profession.

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Evidently, claimant is a skilled Software Engineer and the records show that he is still an employee of the said Honeywell Solutions. He was on leave for four months as per his evidence and during that period he must have got his salary. There is no evidence placed on record by the

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claimant that he is terminated from the service because of the accidental injuries.

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In view of his admission given in his evidence, as well as the materials placed on record by the claimant, the reasonable compensation has to be awarded to the claimant. The learned MACT has awarded the compensation to this claimant towards pain and suffering, conveyance and nourishment expenses, disability, future medical expenses and loss of amenities and enjoyment of life.

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While assessing the disability/compensation, it must not be lost sight of the fact that the loss of bodily integrity gives a right to the damages even if there is no damage to the earning capacity or even to enjoyment of life, but, damages in such cases has to be awarded commensurate with the extent of gravity and duration of the injury. The test in the case of bodily injury is whether the breaking of the physical integrity is of a temporary nature or a permanent nature and the impact of the same

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on the physical capability. Temporary or permanent disability shall be reflected in the earning capacity of the injured.

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After assessing the evidence on record, we are of the opinion that, the award of the Claims Tribunal deserves to be modified so that, 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.

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The learned MACT has awarded Rs.1,00,000/towards pain and suffering. This claimant has suffered as per the Wound Certificate two fractures of left femur and right femur, laceration over right elbow and swelling around

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right eye. As per the discharge summary, he was admitted in the hospital from 31.10.2009 to 30.11.2009 as an inpatient. He underwent wound debriment, fixation of fracture left femur and right femur, reduction of joint dislocation and plaster application on 13.11.2009. The operative findings were Type I compound fracture of left femur, fracture of shaft of right femur, open wound right elbow and Kaplan dislocation right effect MCP joint, under the medical term, this dislocation is nothing but a sister of a fracture. On secondary diagnosis, there was a fracture of orbital bone on the left side and intra-ventricular bleeding in the brain. When he was discharged, he was comfortable and commuting in a wheel chair. For the second time, he was admitted in the Columbia Asia Hospital on 28.12.2009 and he was discharged on 30.12.2009. Operative procedures were done and diagnosis was right orbital fracture with exclusion of the implant was noticed and at the time of discharge, it is noticed that there was a lid

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oedema+ diploya - subjective reduce - still present in extreme gaze. He was advised to have follow-up treatment.

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These injuries so sustained by the claimant must have put him in mental agony, trauma and suffering. He was in discomfort. Therefore, towards pain and suffering, some more amount is required to be awarded to the claimant which would meet the ends of justice. Therefore, Rs.1,25,000/- is awarded towards pain and suffering.

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The MACT has awarded Rs.30,000/- towards conveyance and nourishment charges. In view of present day conditions, cost of living and also status of the claimant, he must have spent substantial money towards nourishment charges, conveyance and food etc. If Rs.50,000/- is awarded towards the same, it would meet the ends of justice. As stated supra, the MACT has awarded an amount of Rs.1,00,000/- towards disability. In this case, as stated supra, claimant is still working with the same company with escalation in his salary. So there is no future

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loss of income due to disability so stated by him and by his doctor. But, however, with all frustrations, inconvenience, discomfort, he has to survive and lead his remaining life. He is a married person as per his evidence and has to take care of his family. Because of all these accidental injuries, claimant has suffered loss. Hence, towards disability, if Rs.3,00,000/- is awarded, it would meet the ends of justice.

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It is submitted by the petitioners' counsel that the learned MACT has not awarded any compensation towards medical expenses on the ground that the petitioner has got reimbursed medical expenses from his employer. According to him, the claimant-petitioner is entitled for compensation towards medical expenses so spent by him as under the service conditions the claimant was entitled to get reimbursement of medical expenses from his employer.

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As against this submission, it is submitted by the

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counsel for insurer that once the medical expenses are

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reimbursed from the employer, as a matter of right the claimant is not entitled.

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In this regard, taking into consideration the principle laid down in the judgment of Hon'ble Apex Court reported in the case of Sebastiani Lakra & ors. V/s National Insurance Company Ltd., and anr.,¹ as the claimant is under contractual obligations and according to his service condition, he is entitled for medical reimbursement from his employer. However, the claimant being the injured is entitled for 'just compensation' under the Motor Vehicles Act and also entitled for compensation towards his medical expenses during treatment. Therefore, now the claimant is entitled for compensation under the Motor Vehicles Act towards medical expenses. The claimant has produced Ex.P.10 and P.11 the receipts for having spent money towards medical expenses. the total receipts show that in all, he has spent Rs.4,33,802/- towards

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1 AIR 2018 SC 5034

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medical expenses, which is not disputed by the

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respondents. In addition to medical expenses, he also must have spent some amount towards other allied incidental expenses. Therefore, globally the claimant is entitled for compensation towards medical expenses to the extent of Rs.4,35,000/-.

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For removing the implants and other allied expenses, as the claimant was also advised to take followup treatment, he has to spend certain amount towards the said medical expenses. So whatever the future medical expenses awarded by the MACT have to be maintained i.e. Rs.50,000/-.

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The learned MACT has awarded Rs.30,000/towards loss of amenities and enjoyment of life. As stated supra, in view of suffering of three fractures and also taking follow-up treatment etc.. the claimant cannot lead a normal life as he was leading prior to the accident. Therefore,

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towards loss of amenities and enjoyment of life, if Rs.1 lakh is awarded, it would meet the ends of justice.

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During laid-up period, the claimant must have got his salary regularly. He must have lost his leave. There is no whisper with regard to the same. But, however, as he is still continuing with his employment with escalation of his salary, no amount be awarded towards the laid-up period as on the other heads, the compensation so awarded by the Tribunal has been modified. In view of all these factual features and analysis with regard to the entitlement of the compensation with modification, the claimant is entitled for

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compensation under various heads as under:

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Sl. No.	Heads	Rs.
1.	Pain and Suffering	1,25,000/-
2.	Food, Conveyance, Nourishment and etc.,	50,000/-
3.	Compensation towards disability	3,00,000/-
4.	Medical Expenses	4,35,000/-
5.	Future Medical Expenses	50,000/-
5.	Loss of amenities to be enjoyed in life	1,00,000/-
	Total	10,60,000/-

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As stated supra, the learned MACT has found the

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drivers of both Lorry and Car guilty in causing the accident thereby held that, there was a contributory negligence on the part of the Lorry driver as well as Car driver in causing the accident to the extent of 50% each. the said finding of the MACT has not been challenged by any of the respondents by preferring appeal. Therefore, the said finding with regard to fastening of liability on respondent nos. 1 and 3 has attained finality. therefore, respondent nos. 1 to 4 are jointly and severally are held liability to pay the compensation. However, respondent nos. 1 and 3 the Insurers of both offending vehicles shall deposit the compensation amount equally before the Tribunal.

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In view of the above discussion and the reasons stated thereon, appeal filed by the appellant succeeds inpart. Resultantly, we pass the following:

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ORDER

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(i) Appeal filed by the claimant under Sec.173 of MV Act is partly allowed .

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(ii) Claimant is entitled for enhanced compensation of Rs.10,60,000/in all together with interest at the rate of 6% p.a. from the date of petition till realization.

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(iii) Respondent Nos.1 to 4 are jointly and severally held liable to pay the enhanced compensation equally. However, under the contract of Indemnity, Respondent no.1 and 3 are directed to indemnify and deposit the compensation amount 50% each before the MACT within four weeks from the date of this order after adjusting the deposit already made before the MACT.

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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) The Registry is directed to transmit the trial Court records along with a copy of this Judgment forthwith.

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(vi) There shall be modified award in the above terms.

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Sd/JUDGE

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Sd/JUDGE

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Sk/-

Sri Aanand S.B. v. the Bajaj Allianz General Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

Sri Aanand S.B. v. the Bajaj Allianz General Insurance Co. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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