Partly allowed

Sri P v. Nagaraj v the Manager

Karnataka HC3 Dec 2024MFA/3136/2014

Case brief

AI extract

What is this about?

Motor accident claimant with quadriplegia appealed for enhancement of compensation after a Scorpio hit a stationary lorry. The High Court confirmed 50% contributory negligence, reassessed income and disability, and enhanced compensation to Rs.20,80,000 with interest at 6% per annum.

What did the court decide?

Enhanced compensation of Rs.20,80,000 with 6% interest payable by respondent No.1 insurer; Rs.10,00,000 to be kept in fixed deposit, balance released.

Sri P v Nagaraj Vs the Manager — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:49750-DB

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MFA No.3136/2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF DECEMBER, 2024

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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 VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO. 3136/2014 (MV-I)

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BETWEEN:

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SRI P V NAGARAJ S/O VENKATESH AGED ABOUT 50 YEARS R/AT NO.1108, 16^TH MAIN, 17^TH CROSS 2^ND STAGE, B.T.M. LAYOUT BANGALORE - 560 076 …APPELLANT

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(BY SRI RAVI SHANKAR, ADVOCATE)

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AND:

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THE MANAGER

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THE NEW INDIA ASSURANCE CO. LTD., REGIONAL OFFICE, UNITY BUILDING P. KALINGA RAO ROAD BANGALORE - 560 027

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SRI RAHUL ANIL BAMB NO.14/1, INDUSTRIAL AREA HARYANA DISTRICT FARIDABAD, HARYANA-121 001 …RESPONDENTS

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(BY SRI D.S.SRIDHAR, ADVOCATE FOR R1;

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NOTICE TO R2 IS DISPENSED WITH V/O DATED 22.06.2015)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 10.02.2012 PASSED IN MVC NO.2627/2006 ON THE FILE OF THE XIX ADDITIONAL SMALL CAUSES JUDGE, MACT, BANGALORE PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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NC: 2024:KHC:49750-DB MFA No.3136/2014

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

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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Questioning the award in MVC.No.2627/2006 passed by the XIX Additional Small Causes Judge and MACT, Bengaluru, the claimant in the said case has preferred this appeal.

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The appellant was sole claimant and respondent Nos.1 and 2 were respondent Nos.1 and 2 in MVC No.2627/2006 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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On 21.05.2005, at 3:00 a.m., when the claimant

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and six others including the driver were travelling in Scorpio bearing Reg.No. TN-23-J-8611 at the Outer ring road, near Surabhi Furniture, Marathahalli, Bengaluru, the driver of the said Scorpio vehicle hit against stationary lorry bearing Reg.No. HR-38-H-9672 leading to a fatal accident. In the accident, Pashupathi the driver of the Scorpio vehicle died and other inmates suffered grievous injuries. At the time of the accident, respondent Nos.1 and 2 were the insurer and the registered owner of lorry bearing Registration No.HR-38-H-

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9672 and the appellant/claimant himself was the registered

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owner of Scorpio jeep bearing No. TN-23-J-8611.

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The claimant, other injured and the legal representatives of deceased Pashupathi filed M.V.C.Nos.2626 to 2629 of 2006 before the Tribunal contending that the accident, consequential death and injuries occurred due to actionable negligence on the part of the driver of the lorry as he had parked the lorry negligently on the road without any indication lights.

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Claimant contended that due to the accidental injuries he has suffered 100% permanent physical disability, he was hospitalized multiple times as inpatient and underwent 9 surgeries. He was earning Rs.30,00,000/- per annum from his business of borewells and he was running said borewell business under proprietary firms named as M/s. Bharath Tubes, M/s. S.V.Tube wells and M/s. Venkateshwara borewells. He claimed compensation of Rs.3,00,00,000/-.

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All the claim petitions were contested by the respondents denying the actionable negligence on the part of the driver of the lorry, age, occupation and income of the

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NC: 2024:KHC:49750-DB MFA No.3136/2014

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injured. They further contended that the driver of the Scorpio vehicle himself drove the vehicle in high speed and in rash and negligent manner, the lorry was parked in the proper place taking all due diligence. The driver of the Scorpio vehicle himself rammed into the lorry, leading to the accident and casualties. Hence, they sought dismissal of the claim petitions.

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The Tribunal consolidated M.V.C.Nos.2626 to 2629

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of 2006 and recorded the common evidence. Other claimants, wife of the appellant and the medical officers in support of the claim petitions were examined as PWs.1 to 6 and Ex.P1 to P54 were marked. Respondents did not lead any evidence.

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The Tribunal on hearing the parties by the impugned common award held that the accident occurred due to equal contributory negligence of the driver of the Scorpio Car and the lorry. The Tribunal did not accept the claim of the appellant regarding his income and medical expenses. However, the Tribunal quantifies the damages as follows:

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1.	Towards pain and suffering	Rs.1,80,000/-
2.	Towards medical expenses	Rs.2,50,000/-
3.	Towards loss of earnings	Rs. 30,000/-
4.	Towards conveyance, attendant and nourishing food	Rs. 30,000/-
5.	Towards loss of amenities	Rs.1,50,000/-
	Total	Rs.6,40,000/-

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NC: 2024:KHC:49750-DB MFA No.3136/2014

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Out of the aforesaid amount, the Tribunal apportioned 50% liability to respondent Nos.1 and 2 and awarded compensation of Rs.3,20,000/- with interest thereon at 8% per annum.

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The appellant has challenged the findings regarding negligence as well as quantum of compensation. Sri. Ravi Shankar, learned counsel for the appellant submits that the evidence on record shows that the lorry driver was negligent and the finding that the driver of the Scorpio vehicle also contributed 50% is unsustainable. Having regard to the evidence on record, the compensation awarded on all other heads is on the lower side.

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Sri D.S.Sridhar, learned counsel for respondent No.1 justifies the impugned award on all heads. He submits that no proof of actual income of the deceased to the tune of Rs.30,00,000/- per annum is produced and compensation awarded on the other heads is also just one. So far as the negligence aspect, he submits that in the appeals arising out of the same accident, this Court in M.F.A.Nos.7959/2013 and 7958/2013 has confirmed the finding regarding the negligence. Therefore, that has become final.

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NC: 2024:KHC:49750-DB MFA No.3136/2014

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On hearing both side and on examining the

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material on record, the questions that arise for consideration

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are:

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(i) Whether the Tribunal was justified in holding that the accident occurred due to equal contributory negligence of driver of the Scorpio bearing No. TN-23-J-8611 and the lorry bearing No.HR-38-H-9672 is sustainable?

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(ii) Whether the compensation awarded by the Tribunal is just one?

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Analysis

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Reg. Negligence:

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Admittedly, on the complaint regarding the

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accident, on investigation, the charge sheet was filed against the driver of both Scorpio vehicle and the lorry. The findings of the Tribunal in M.V.C.Nos.2628/2006 and 2626/2006 regarding negligence which were also part of the common impugned award, were questioned before this Court by the claimants of those cases in M.F.A.Nos.7959/2013 (MV-I) and 7958/2013 (MV-D) respectively. This Court, in those appeals by the impugned judgment dated 23.09.2021, has confirmed the finding of the Tribunal apportioning the contributory negligence to the driver of the lorry and the Scorpio jeep at

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NC: 2024:KHC:49750-DB MFA No.3136/2014

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50% each. Admittedly, the said judgment has attained finality. Therefore, the finding of the Tribunal that both the drivers of lorry and jeep contributed equally in occurrence of the accident needs to be confirmed.

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Reg. Quantum:

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There is no dispute that at the time of the accident, the claimant was aged 42 years. To prove injuries and disability suffered by him, the claimant relied on the evidence of his wife/PW.5 and PW.6 the Orthopaedic Surgeon

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of Hosmat Hospital where the claimant was treated. The evidence of PW.6, Exs.P31 to 39 and Ex.P50 show that the claimant had suffered the following injuries:

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(i) C6-C7 fracture dislocation with quadriplegia with right humerus fracture with head injury

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(ii) Right radial nerve palsy.

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The above stated documents show that the

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claimant underwent multiple surgeries and took treatment at Manipal Hospital, K.R.Hospital, Hosmat Hospital at Bangalore and Vellore Medical College Hospital at Tamil Nadu and the claimant was treated as inpatient in said hospitals in total for 176 days on the following days.

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(i) 22.05.2005 to 16.06.2005 (25 days) (ii) 16.06.2005 to 27.08.2005 (73 days)

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NC: 2024:KHC:49750-DB MFA No.3136/2014

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(iii) 29.09.2005 to 11.10.2005 (13 days) (iv) 06.12.2005 to 08.12.2005 (3 days) (v) 29.12.2005 to 12.01.2006 (15 days) (vi) 21.01.2006 to 03.03.2006 (42 days) (vii) 09.11.2006 to 13.11.2006 (5 days)

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PW.6 assessed disability of the claimant at 90% to

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the whole body and he deposed that the claimant had suffered quadriplegia. He further deposed that sensory system was partially affected. The evidence of PW.6 and other documents show that the claimant was not able to talk because of Tracheostomy and his motor system was totally affected. The evidence further shows that the claimant was not able to manage himself physically for any of his activities because of that his wife was examined before the Tribunal. Prior to the accident, he was a businessman and physical disability is assessed at 90% to the whole body. Considering the aforesaid facts and circumstances, his functional disability has to be assessed at 100%.

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So far as income and medical evidence etc, it is material to note that due to non communication of the pendency of the appeal, the Tribunal had destroyed the records and on the direction of the Court, appellant’s Counsel

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produced certified copies of the relevant documents the correctness of which was accepted by other side.

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Though the claimant contended that he was earning Rs.30,00,000/- from his borewell business, there was no proof of such income. Ex.P48 is income tax returns submitted by him and his Proprietary concern for the years 2001-2002, 2002-2003, 2006-2007 and 2007-2008. Ex.P42 is the copy of the acknowledgement for registration in Form-D as Proprietor of S.V.Tubewells. As per the profit and loss account for the year ending on 31.03.2003, profit from the said business was Rs.11,060/-. As per the intimation of Income Tax Department for the assessment year 2006-2007, his annual income was Rs.1,80,590/- and Rs.11,340/- was deducted towards income tax. Thus his net income for the assessment year 2006-2007 would be Rs.1,69,250/-. His income as on the date of the accident i.e. 21.05.2005 has to be considered for assessing loss of income and 10% de-escalation can be given in the income shown in Ex.P48. On such de-escalation for each year his monthly income would be Rs.33,850/and his income would be Rs.1,35,400/-. (Rs.1,69,250/- - Rs.33,850/-). To that his profit from Bharath

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NC: 2024:KHC:49750-DB MFA No.3136/2014

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Tubes at Rs.11,060/- has to be added. Therefore his total annual income comes to Rs.1,35,400 + Rs.11,060/- = Rs.1,46,460/-.

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In view of the judgment of the Hon’ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi¹ and having regard to his age, employment and his functionally disability at 100%, 25% of his income which comes to Rs.36,615/- has to be superadded to the income. Thus his loss of earning per annum is Rs.1,46,460 + 36,615/- = Rs.1,83,075/-. The applicable multiplier is 14. Therefore loss of future earnings comes to Rs.1,83,075/x 14 =Rs.25,63,050/-.

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So far as medical expenses, the Tribunal rejected medical bills Ex.P40 on the ground that the author of documents was not examined, therefore they were not proved. Though Tribunal accepted the evidence of PW.6 that the claimant underwent 6 surgeries for about nine times and

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he was treated as inpatient for 176 days, considering the aforesaid facts and circumstances, the Tribunal was not reasonable in rejecting such bills. Therefore, compensation of Rs.11,58,970/- has to be awarded for medical expenses. 1 (2017) 16 SCC 680

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NC: 2024:KHC:49750-DB MFA No.3136/2014

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Having regard to the nature of injuries, period of hospitalization, treatment underwent and the evidence of PW.6, compensation awarded on the head of pain and suffering needs to be maintained.

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The claimant was in hospital for 176 days. Having regard to the natures of injuries, his condition, compensation on the head of diet and conveyance charges, has to be awarded at least at Rs.250/- per day which comes to Rs.250 x 176 = Rs.44,000/-.

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As claimant has functional disability which has made him to depend on somebody for his daily routine and self care, future attendant charges has to be awarded. Taking into consideration that the accident took place in the year 2005, same can be reasonably assessed at Rs.100/- per day. The applicable multiplier is 14. Therefore compensation for attendant charges comes to Rs.100 x 30 x 12 x 14= Rs.5,04,000/-.

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Considering the nature of the injuries and condition of the claimant, awarding compensation at Rs.2,00,000/- on the head of loss of amenities meets the ends of justice. Future medical expenses awarded by the Tribunal

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at Rs.1,50,000/can be maintained. Therefore just

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compensation payable is as follows:

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Sl. No.	Particulars	Compensation amount in Rs.
1	Loss of future earnings	25,63,050/-
2	Medical Expenses	11,58,970/-
3	Pain and sufferings	1,80,000/-
4	Attendant charges	5,04,000/-
5	Diet, nourishment & conveyance during hospitalization	44,000/-
6	Loss of amenities	2,00,000/-
7	Future medical expenses	1,50,000/-
	Total	48,00,020/-

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25. As 50% negligence is contributed by the claimant’s

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vehicle itself, out of the aforesaid compensation claimant will be entitled to only 50% of the compensation which works out at (Rs.48,00,020/- x 50%) = Rs.24,00,010/-. On deducting the compensation awarded by the Tribunal, claimant is entitled to enhanced compensation of Rs.24,00,010/- - Rs.3,20,000/- = Rs.20,80,010 rounded off to Rs.20,80,000/-.

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For the aforesaid reasons, the appeal deserves to be allowed in part. Hence, the following:

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ORDER

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The appeal is allowed in part.

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The impugned award of the Tribunal is modified as follows:

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(a) The claimant is entitled to enhanced compensation of Rs.20,80,000/- with interest thereon at 6% per annum payable by respondent No.1 from the date of the petition till its realization.

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(b) Respondent No.1/Insurer shall deposit the said amount after adjusting the amount already deposited, if any, before the Tribunal within four weeks from the date of receipt of copy of this order.

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(c) Out of the enhanced compensation, the Tribunal shall invest Rs.10,00,000/- in fixed deposit for a period of three years in the name of the claimant in any nationalized/scheduled bank of his choice and release the balance amount digitally to him.

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(d) Return the records to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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ABK,KSR

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List No.: 1 Sl No.: 32

Sri P v. Nagaraj v the Manager

Case brief

What is this about?

What did the court decide?

Sri P v. Nagaraj v the Manager

Case brief

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