Partly allowed

The Manager v. Sri. Abubakkar

Karnataka HC13 Dec 2024MFA/2953/2019

Case brief

AI extract

What is this about?

Insurer appealed quantum of compensation for a claimant left in a vegetative state with 100% disability after a car accident. The High Court reassessed income at Rs.11,000 p.m., applied multiplier 11 with 10% future prospects, invoked Order XLI Rule 33 CPC to enhance pain and suffering, loss of amenities and attendant charges, fixing total compensation at Rs.34,43,650/- with interest at 6% p.a.

What did the court decide?

Award modified: total compensation Rs.34,43,650/- (enhancement Rs.3,05,200/- over Tribunal's Rs.31,38,450/-) with interest at 6% p.a.; insurer to deposit within four weeks.

The Manager Vs Sri. Abubakkar — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:53362-DB MFA No.2953/2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.2953/2019 (MV-I)

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BETWEEN:

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Digitally signed by ARSHIFA BAHAR KHANAM Location: HIGH COURT OF KARNATAKA

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THE MANAGER THE NEW INDIA ASSURANCE CO., LTD., BRANCH OFFICE, PANDURANGA COMPLEX K.T.STREET, CHIKKAMAGALURU. THROUGH ITS REGIONAL OFFICE MAHALAKSHMI CHAMBERS M.G.ROAD, BENGALURU-560 001 REP. BY ITS DEPUTY MANAGER SRI. K. SATISH CHANDRA.

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…APPELLANT

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(BY SRI. B.C. SEETHARAMA RAO, ADV.,)

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AND:

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SRI. ABUBAKKAR S/O LATE BAVAKA @ BAVA AGED ABOUT 52 YEARS R/AT. NEAR JUMA MASIDI MAGUNDI, N.R.PURA TALUK.

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SRI. ABDUL RAZAK S/O MR. ABDUL NAZIR AGED ABOUT 21 YEARS R/AT KADLEMAKKI B. KANABOOR VILLAGE BALEHONNUR POST N.R.PURA TALUK.

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SRI. ABDUL NAZIR S/O ABDUL SATTAR AGED ABOUT 42 YEARS R/AT KADLEMAKKI B. KANABOOR VILLAGE BALEHONNUR POST N.R.PURA TALUK.

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…RESPONDENTS

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(BY SRI. K.S. GANESHA, ADV., FOR R1 SRI. B.R. VENKATESH KAMATH, ADV., FOR R2 R3 SERVED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO CALL FOR THE RECORDS CONNECTED WITH MVC 540/2017 ON THE FILE OF THE HON'BLE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AND MACT AT N.R. PURA, EXAMINE THE SAME AND SET ASIDE THE AWARD AND JUDGMENT DATED 31.12.2018 TO DISMISS THE CLAIM PETITION AS AGAINST THE APPELLANT IN THE INTEREST OF JUSTICE.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2024:KHC:53362-DB MFA No.2953/2019

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ORAL JUDGMENT

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( PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL )

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Challenging the quantum of compensation awarded in MVC No.540/2017 on the file of Senior Civil Judge and JMFC and MACT, N.R.Pura, the insurance company has filed this appeal.

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The appellant was respondent No.3 and respondent No.1 was the claimant, respondent No.2 was respondent No.1, respondent No.3 was respondent No.2 in MVC No.540/2017 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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The injured claimant filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, seeking compensation for the injuries and disability suffered by him in the road traffic accident that occurred on 21.06.2017. It is contended that the claimant was travelling along with his wife, son, daughter in law and daughter in Maruthi Ertiga car bearing Chassis No.MA3FLEB1S00445873, having Engine No.3A5392088 from Magundi to Ullaladarga. It is further

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contended that respondent No.1 was driving the said car, when they reached Bantwala-Kadur National Highway, the driver of the car drove the same in rash and negligent manner and dashed to the road side rock, resultantly the car capsized. It is also contended that the claimant sustained injuries, which resulted in traumatic quadriplegia, spinal cord oedema, spinal cord contusion at C5-C6, right post ganglionic brachial plexus injury and damage to nerve roots, effacing the ventral surface of cord resulted in fully paralyse state. It is pleaded that the claimant was provided treatment at Father Muller's Hospital, Mangaluru , later he was shifted to Highland Hospital, Mangaluru, he was inpatient from 21.06.2017 to 07.07.2017, he spent more than 5,00,000/- towards treatment and he requires further sum of Rs.5,00,000/- for future medical expenses. It is further pleaded that the injured-claimant was hail and healthy and was earning Rs.12,000/- p.m. from his coolie work, due to the permanent physical disability he is unable to stand, walk and do day-to-day activities, hence, he lost the present as well as future earnings. It is also pleaded that the accident is caused due to negligence of respondent No.1, as respondent No.2 is the owner of the vehicle involved

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in the accident and the said vehicle was insured with respondent No.3, hence, they are liable to pay the compensation.

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Respondent No.1 remained exparte. Respondent No.2 filed written statement denying the allegation of negligence. It was pleaded that as on the date of accident, the vehicle involved in the accident was insured with respondent No.3, therefore liability, if any, is recoverable by respondent No.3. Respondent No.3 filed the statement of objections denying the manner of accident and negligence. It is further pleaded that respondent No.2 has violated the terms and conditions of the policy. It is also pleaded that respondent No.2 has not produced the vehicle documents immediately after the accident, respondent No.1-driver of the vehicle was not having valid and effective driving licence as on the date of accident, hence, the owner is liable to pay compensation. It is further pleaded that the claimant has sought exorbitant compensation, they have denied, age, avocation, income and disability, and sought for dismissal of the claim petition.

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The Tribunal recorded the evidence of the parties.

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The claimant examined himself as PW-1 and examined Medical Officer as CW-1, got marked Exs.P-1 to P-136 and Ex.C-1. Respondents examined RW-1 and got marked Exs.R-1 to R-8. The Tribunal partly allowed the claim petition assessing the income of the claimant at Rs.10,000/- p.m., considered the age of the claimant as 50 years, applied 13 multiplier, added 40% towards future prospects of the claimant, assessed the disability at 100% and awarded compensation of Rs.21,84,000/- under the head of loss of future earning due to disability. In all, the Tribunal awarded the compensation of Rs.31,38,450/- along with interest at 9% p.a. Being aggrieved by the quantum of compensation awarded by the Tribunal, respondent No.3 - insurance company is in appeal.

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Sri.B.C.Seetharama Rao, learned counsel for the appellant-insurance company submits that the Tribunal has committed grave error in assessing the monthly income of the claimant at Rs.10,000/- p.m. as the claimant has not produced any evidence to prove the income. It is submitted that the claimant was aged about 60 years at the time of accident, however, the Tribunal has considered the age of the claimant

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as 50 years and wrongly applied 13 multiplier and it has committed further error in adding 40% towards future prospects, it should have been 10% as per the law laid down by the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others¹ . It is further submitted that the Tribunal has erred in awarding Rs.3,00,000/- under the head of pain and suffering and Rs.2,00,000/- under the head of attendant charges. He also submits that in compliance with the order of this Court dated 06.12.2024 on I.A.No.1/2024, claimant/respondent No.1 along with memo dated 05.12.2024 has produced the copy of his Aadhaar Card. As per the Aadhar card, his date of birth is 01.01.1963. Hence, his age has to be considered as 54 years at the time of accident and appropriate multiplier would be 11. It is also submitted that the Tribunal has erred in awarding interest at the rate of 9% p.a., hence, he seeks to reduce the same to 6%p.a. Therefore, he seeks to allow the appeal by reducing the compensation appropriately.

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1 (2017) 16 SCC 680

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Per contra, Sri.K.S.Ganesha, learned counsel for respondent No.1-claimant supports the impugned judgment and award of the Tribunal and submits that the claimant was working as a timber Coolie and was earning more than Rs.12,000/- p.m. It is submitted that considering the age as per the Aadhaar Card, the appropriate multiplier would be 11. However, the award of compensation by the Tribunal on the heads of pain and suffering, loss of amenities of life, towards attendant charges is on the lower side. It is further submitted that the evidence of the doctor is very clear that the claimant is unable to do any work as he suffered 100% disability, as he suffered quadriplegia, due to the accident. Hence, he seeks to award just compensation by enhancing the same on the aforesaid heads by exercising the power under Order XLI Rule 33 of Code of Civil Procedure, 1908. Hence, he seeks to dismiss the appeal filed by the insurance company by enhancing the compensation awarded by the Tribunal.

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Considering the rival submissions of the parties and

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on examining the materials on record, the point that arises for consideration is “ Whether the impugned judgment and award of the Tribunal calls for any interference”?

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ANALYSIS

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Pleadings and evidence available on record show that in the road traffic accident dated 21.06.2017, the claimant suffered injuries. It is evident from the evidence of CW-1 and the medical evidence on record, that claimant has suffered traumatic quadriplegia, spinal cord oedema, spinal cord contusion at C5-C6, right post ganglionic brachial plexus injury, spinal C5 and C6, annular bulge indenting C6 nerve roots and effacing ventral cord surface and C4-5 posterior bulge effacing the ventral surface of the cord. CW-1 deposed that he has examined the claimant on 13.02.2018 and assessed the disability of claimant at 100%. He further deposed that claimant needs an attendant to help him to carry out his routine work and the patient had disability for his whole body for his quadriplegia to the extent of 100%. The Tribunal, on appreciation of the evidence of CW-1/the expert, Ex.C1, Ex.P8 and other medical records, assessed the disability at 100%. The assessment of disability by the Tribunal is not under challenge in the present appeal by the Insurance Company. There is no dispute between the parties with regard to the liability.

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The Tribunal, considering the evidence available on

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record has awarded the compensation as under:

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Sl. No.	Particulars	Compensation awarded in Rs.
1.	Pain and Sufferings	3,00,000/-
2.	Medical expenses	2,54,450/-
3.	Towards loss of amenities of life	1,00,000/-
4.	Towards conveyance	20,000/-
5.	Towards attendant charges	2,00,000/-
6.	Food and nourishment charges	50,000/-
7.	Towards loss of marital life	30,000/-
8.	Towards loss of future earning capacity	21,84,000/-
	TOTAL	31,38,450/-

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The Insurance Company has contended that the assessment of income of claimant at Rs.10,000/- p.m. by the Tribunal is required to be interfered. Admittedly, claimant did not produce any legally acceptable evidence with regard to his avocation and income. The pleading on record indicates that claimant was a timber Coolie by avocation. Considering his avocation, cost of living and prevailing wages for the year 2017 and also keeping in mind the notional income chart prepared by the Karnataka State Legal Services Authority, we notionally reassess the income of the claimant at Rs.11,000/- p.m.

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Pursuant to the application in I.A.No.1/2024 filed by the appellant, claimant has produced his Aadhar card along with the memo. As per the Aadhar card, the claimant's date of birth is 01.01.1963. Therefore, as on the date of accident, his age was 54 years. Hence, appropriate multiplier would be 11 as against 13 considered by the Tribunal. The Tribunal committed error in adding 40% of the assessed income of the claimant towards loss of future prospects. For the age of 54 years, appropriate addition would be 10% under the head of loss of future prospects. There is no dispute with regard to the disability assessed by the Tribunal. Hence, the compensation under the head loss of future earnings due to disability is reassessed as under:

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11,000 + 1,100 (10%) = 12,100 x 12 x 11 x 100% = Rs.15,97,200/-

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The evidence of the Medical Officer i.e. CW-1 and other medical evidence on record clearly indicate that claimant has suffered traumatic quadriplegia, spinal cord oedema, spinal cord contusion at C5-C6, right post ganglionic brachial plexus injury, spinal C5 and C6, annular bulge indenting C6 nerve roots and effacing ventral cord surface and C4-5 posterior

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bulge effacing the ventral surface of the cord. Due to the aforesaid disability, claimant is unable to do his routine activities. As per the evidence of CW-1, claimant needs constant attendant to attend his routine activities. The evidence on record clearly indicates that claimant is in vegetative state and unable to carry out any activity. Hence, the compensation is required to be re-assessed keeping in mind the law laid down by the Hon'ble Supreme Court in the case of Kajal vs. Jagdish Chand & others² and Master Ayush Vs. Branch Manager, Reliance General Insurance Company

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Limited and Another³ . The Hon'ble Supreme Court, in the aforesaid judgments considered the disability suffered by the claimant in those cases and awarded just compensation under the heads of pain and suffering, loss of amenities, attendant charges and future medical expenses. In the instant case, claimant has not filed any appeal seeking for enhancement of compensation. In the absence of appeal of the claimant, we propose to exercise power under Order XLI Rule 33 of the Code of Civil Procedure, 1908 and re-determine the compensation.

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One of the objects of the Motor Vehicles Act, 1988 is to award

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2 (2020) 4 SCC 413

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3 (2022)7 SCC 738

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just compensation to the victim of the road traffic accident. Keeping in view the intent and object of law, we propose to exercise our power under Order XLI Rule 33 of the CPC. The power of the Appellate Court under the aforesaid Rule is to pass any decree and make any order which ought to have been passed or ordered as the case may require. The exercise of power can be in favour of all or any of the respondents even in the absence of respondents appeal or objection or crossappeal. The exercise of power by the Appellate Court under Order XLI Rule 33 of the CPC is a discretionary power and the same is required to be exercised cautiously and on judicious appreciation of the evidence available on record.

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In the instant case, the evidence on record indicates that claimant is unable to do any activity as observed supra . We are of the considered view that this is a fit case to exercise our power under Order XLI Rule 33 of the CPC in order to award just compensation to the injured claimant who has suffered 100% disability. This Court, in similar circumstances has invoked Order XLI Rule 33 of the CPC in the case of The

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Oriental Insurance Co. Ltd. Vs. Akkayamma and others⁴ . The Hon'ble Supreme Court in the judgment of Eastern Coalfields Limited and ors. Vs. Ravindra Kumar Bharti⁵ held that the exercise of power under Order XLI Rule 33 of the CPC is an extraordinary power which however is a rear jurisdiction and has to be exercised to reach justice in a special facts of the case. The Hon'ble Supreme Court further observed that it is not an ordinary rule to be applied across the board in all the appeals. In the instant case, if the compensation is not re-assessed by exercising the jurisdiction under Order XLI Rule 33 of the CPC, great injustice would be caused to the claimant. The facts and circumstances of the case as well as the evidence available on record warrant exercise of such rear jurisdiction.

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Considering the medical evidence on record, present condition of claimant and keeping in mind his age at the time of accident, we are of the considered view that the compensation awarded by the Tribunal under the heads of pain and suffering, loss of amenities of life and towards attendant charges requires to be re-assessed. The claimant was aged about 54 years at the time of accident, was inpatient from

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4 ILR 2009 KAR 24

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5 (2022) 12 SCC 390

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21.06.2017 to 07.07.2017 and thereafter has been in continuous treatment. Hence, it would be just and appropriate to award Rs.4,00,000/- under the head of pain and suffering as against Rs.3,00,000/- awarded by the Tribunal. Claimant is in vegetative state, he has lost the happiness of life. Hence, it would be just and appropriate to award Rs.3,00,000/- towards loss of amenities as against Rs.1,00,000/- awarded by the Tribunal. Keeping in mind the evidence of CW-1, claimant needs constant help of an attendant for the rest of his life. The award of compensation towards attendant charges by the Tribunal is on the lower side. Hence, we re-assess the same as under:

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Rs.6,000 (200 per day x 30 days) x 12 (month) x 11 (multiplier) = Rs.7,92,000/- as against Rs.2,00,000/awarded by the Tribunal

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So far as award of compensation by the Tribunal towards loss of marital happiness, medical expenses and food and nourishment charges, the same are unaltered. Having reassessed the compensation supra , claimant would be entitled to the compensation as under:

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Sl. Particulars Compensation
No. awarded in Rs.
1. Loss of future earnings
(11,000 + 1,100 (10%) =
12,100 x 12 x 11 x 100%) 15,97,200/-
2. Pain and suffering 4,00,000/-
3. Loss of amenities 3,00,000/-
4. Medical expenses 2,54,450/-
5. Conveyance, food and
nourishment during
hospitalization 70,000/-
6. Loss of marital life 30,000/-
7. Future attendant charges 7,92,000/-
TOTAL 34,43,650/-
Compensation awarded by the
Tribunal 31,38,450/-
Enhanced compensation 3,05,200/-