Partly allowed

M/S Icici Lombard General v. Mr Charles Mithun Shiri

Karnataka HC28 Nov 2024MFA/3880/2017

Case brief

AI extract

What is this about?

Appeal by insurer and cross-objection by claimant against enhanced award after remand in a motor accident case where claimant's right leg was amputated. Court assessed 50% whole-body disability per Employees' Compensation Act schedule, computed loss of future earnings with 40% future prospects and multiplier 17, revised artificial limb costs, and enhanced total compensation.

What did the court decide?

Enhanced compensation of Rs.14,34,116/- with 6% interest awarded to claimant, payable by insurer; Rs.10,00,000/- to be invested in fixed deposit for five years, balance released.

M/S Icici Lombard General Vs Mr Charles Mithun Shiri — Motor Accident Claims | Karnataka HC (2024)

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NC: 2024:KHC:48990-DB MFA No.3880/2017 C/w MFA.CROB No.112/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 28^TH DAY OF NOVEMBER, 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.3880/2017 (MV-I) C/w

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MFA CROSS OBJECTION No.112/2017 (MV-I)

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MFA NO.3880/2017:

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BETWEEN:

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M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED C-22, 2^ND FLOOR

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MAXIMUS COMMERCIAL COMPLEX LIGHT HOUSE, HILL ROAD OPP. KMC HOSPITAL, HAMPANAKATTA MANGALORE – 575 001 REP. BY ITS MANAGER LEGAL …APPELLANT

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(BY SRI A M VENKATESH, ADVOCATE)

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

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AND:

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MR. CHARLES MITHUN SHIRI S/O MELWYN SHIRI AGED ABOUT 35 YEARS R/AT NO.37, VEEKAY APARTMENTS KOTEKANI, URWA STORES MANGALORE – 575 006

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MR RAMESH K S/O G K KUPPAUVELU AGED ABOUT 47 YEARS R/AT NO.27, B NATARAJAPURA

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MADUKAL DISTRICT, TAMIL NADU – 638 001

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MR ASHOK KUMAR S/O KRISHNAN AGED ABOUT 47 YEARS

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NC: 2024:KHC:48990-DB MFA No.3880/2017 C/w MFA.CROB No.112/2017

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R/AT NO.39/3, KANAKAPURA MAIN ROAD B S K II STAGE, BENGALURU – 560 070

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M/S SRS TRAVELS PROP : K T RAJASHEKAR # 321/13, T S P ROAD KALASIPALYAM,

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BENGALURU – 560 002 …RESPONDENTS

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(BY SRI SHARATH S GOWDA, ADVOCATE FOR R1; SMT.BHUSHANI KUMAR, ADVOCATE FOR R4; NOTICE TO R2 & R3 DISPENSED WITH V/O DATED 13.06.2022; BRINGING LRS OF DECEASED R4 D/W V/O DATED 28.11.2024)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 13.01.2017 PASSED IN MVC NO.1335/2008 ON THE FILE OF THE MACT III AND II ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE, AWARDING COMPENSATION OF RS. 16,00,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL ITS REALIZATION.

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MFA.CROB NO.112/2017:

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BETWEEN:

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SRI CHARLES MITHUN SHIRI S/O MELWYN SHIRI AGED ABOUT 34 YEARS R/AT NO.B7, VEEKAY APARTMENTS KOTEKANI, URWA STORES

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MANGALORE – 575 006 … CROSS OBJECTOR

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(BY SRI SHARATH S GOWDA, ADVOCATE)

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AND:

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MR.RAMESH K S/O G K KUPPAUVELU AGED ABOUT 45 YEARS R/AT NO.27, B NATARAJAPURA

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NADUKAL DISTRICT, TAMILNADU-600204

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MR ASHOK KUMAR S/O KRISHNAN AGED ABOUT 44 YEARS R/AT NO.39/3, KANAKAPURA MAIN ROAD B S K II STAGE, BENGALURU – 560 054

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NC: 2024:KHC:48990-DB MFA No.3880/2017 C/w MFA.CROB No.112/2017

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M/S SRS TRAVELS PROP : K T RAJASHEKAR # 321/13, T S P ROAD KALASIPALYAM, BENGALURU – 560 002

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THE BRANCH MANAGER M/S ICICI LOMBARD INSURANCE COMPANY LIMITED, MAXIMAS BUILDING OPP. KMC MEDICAL COLLEGE LIGHT HOUSE HILL ROAD MANGALORE – 575002 …RESPONDENTS

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(BY SRI A.M.VENKATESH, ADVOCATE FOR R4; NOTICE TO R1 TO R3 DISPENSED WITH V/O DTD:13.06.2022) BRINGING LRS OF DECEASED R3 D/W V/O DATED 28.11.2024)

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THIS MISCELLANEOUS FIRST APPEAL CROSS OBJECTION IS FILED UNDER ORDER XLI RULE 22 READ WITH SECTION 173(1) OF MOTOR VEHICLES ACT, 1988 PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 13.01.2017 PASSED IN MVC NO.1335/2008 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE AND III ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, MACT, MANGALURU (DAKSHINA KANNADA), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL AND MISCELLANEOUS FIRST APPEAL CROSS OBJECTION, COMING ON FOR ADMISSION, 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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ORAL JUDGMENT

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

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This appeal and cross objection arise out of the award in

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M.V.C.No.1335/2008 passed by II Additional District &

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Sessions Judge and III Additional MACT, Mangaluru, D.K.

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Appellant in M.F.A.No.3880/2017 was respondent

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No.4, respondent No.1 was the claimant, respondent Nos.2 to

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NC: 2024:KHC:48990-DB MFA No.3880/2017 C/w MFA.CROB No.112/2017

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4 were respondent Nos.1 to 3 in M.V.C.No.1335/2018 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 brief facts of the case are as follows:

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On 14.02.2008 at 4.10 p.m. when the claimant was traveling in Maxi Cab bearing Registration No.KA-01-B-2096 driven by one Santhosh D’Souza near Milk Diary of Thenka Yermal village on NH-17, lorry bearing Registration No.KA-05-AE-1929 hit the said Maxi Cab. In the accident, Santhosh D’Souza driver of Maxi Cab died. The claimant suffered grievous injuries. At the time of accident, respondent Nos.1, 2 and 4 were the driver, owner and Insurer of the lorry in question and respondent No.3 was the owner of Maxi Cab. The claimant was treated in Kasturba Medical College and Hospital, Manipal as inpatient between 14.02.2008 to 23.06.2008. His right leg was amputated upto knee and he underwent surgeries for the same.

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The claimant filed M.V.C.No.1335/2008 against the respondents claiming compensation of Rs.40,00,000/- alleging that due to the accidental injuries, he has suffered permanent physical disability and contended that the respondents are

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NC: 2024:KHC:48990-DB MFA No.3880/2017 C/w MFA.CROB No.112/2017

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liable to compensate the damages. Legal representatives of

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the deceased Santhosh D’Souza filed M.V.C.No.709/2008.

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Insurer of lorry i.e. ICICI Lombard General Insurance Company Ltd. contested the petition denying actionable negligence on the part of the driver of the lorry, age, occupation and income of the claimant and its liability to pay the compensation.

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The Tribunal on hearing the parties, by common judgment and award in MVC No.709/2008 and MVC No. 1335/2018 dated 22.02.2014 allowed the claim petition in part. The present claimant was awarded compensation of Rs.3,05,000/-. He challenged the said award before this Court in M.F.A.No.3560/2014. On hearing both parties, by judgment dated 09.03.2016, M.F.A.No.3560/2014 was allowed holding that the Tribunal has not awarded any compensation towards future medical expenses and costs of artificial limb. This Court remanded the matter reserving liberty to both parties to adduce additional further evidence with regard to expenses of artificial limb and to dispose of the matter after hearing both parties.

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On such remand, the claimant who was initially examined as PW.3 was further examined and cross-examined. Sri P.R.Sudharshan, Senior Sales Manager of Ottobock Healthcare India Private Limited, the supplier of artificial limb was examined as PW.8 and he produced Exs.P26 and P27.

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The Tribunal on hearing the parties by the impugned award, retaining the earlier compensation awarded on all other heads, awarded additional compensation of Rs.16,00,000/- on the head of requirement of artificial limb in future and maintenance of the same. Thus in total, the compensation of Rs.19,05,000/- was awarded as follows:

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Sl. No.	Particulars	Amount of compensation (in Rs.)
1	Pain and Agony	1,00,000/-
2	Attendant Charges	25,000/-
3	Conveyance, nourishment food	30,000/-
4	Loss of expectation of life	50,000/-
5	Loss of amenities and enjoyment of life	1,00,000/-
	Total compensation awarded on 09.03.2016	3,05,000/-
6	Replacement of artificial limb in future (5 times)	10,00,000/-
7	Maintenance of artificial limb	6,00,000/-
	Total compensation awarded on 13.01.2017 after remand	16,00,000/-
	Total(Rs.3,05,000+Rs.16,00,000/-)	19,05,000/-

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NC: 2024:KHC:48990-DB MFA No.3880/2017 C/w MFA.CROB No.112/2017

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Insurer has now challenged the said award in M.F.A.No.3880/2017 and the claimant has challenged the award in M.F.A.Crob.No.112/2017.

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Sri A.M.Venkatesh, learned Counsel for the Insurer

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submits that the claimant did not adduce any evidence in proof of fixation and maintenance of artificial limb after the accident, there was no basis for awarding compensation on the said head. He further submits that as per the evidence of the claimant himself, he had continued with his employment, therefore there was no loss of future earnings. Admissions of PW.3 in his cross-examination clearly show that he tendered resignation voluntarily, therefore it cannot be said that there was termination and loss of future earnings. There was no proof of loss of income of the claimant, due to the alleged disability suffered. He submits that compensation awarded earlier has to be retained and the compensation awarded subsequently on the other heads is unsustainable.

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Per contra, Sri Sharath S.Gowda, learned Counsel for the claimant/cross-objector submits that the evidence on record clearly shows that the claimant had suffered 76% permanent physical disability, therefore his employment

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position was changed. Initially the claimant was working as Executive Customer Service and later was shifted as Store Keeper. Ultimately as he was not able to perform his work, he resigned from his employment. Therefore he submits that the Tribunal ought to have awarded compensation on the head of future income. He submits that the compensation awarded on other heads is also on the lower side.

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On considering the submissions of both side and examining the materials on record, the question that arises for determination of the Court is “whether the compensation awarded is just one?”

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Analysis

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The findings of the Tribunal that when the claimant was traveling in Maxi Cab bearing Registration No.KA-01-B2096 along with Vodafone equipments which belonged to his employer, lorry bearing Registration No.KA-05-AE-1929 driven by its driver in rash and negligent manner hit the said Maxi Cab leading to death of Maxi Cab driver Santhosh D‘Souza and grievous injuries to the claimant, have attained finality in view of the judgment of this Court in M.F.A.No.3560/2014.

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The evidence of the claimant/PW.3 and PW.5 the

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doctor of Kasturba Medical College show that in the accident, the claimant had suffered the following injuries:

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(i) Type-III C (With 8 x 4 x 5 c.m., wound over proximal part of right leg exposing the fractured bone, 6 x 3 x 3 c.m. laceration over right distal leg) open comminuted segmental fracture of right tibia with vascular injury (grievous injury)

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(ii) Right corneal tear (grievous injury)

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(iii) Right acetabular fracture (grievous injury)

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(iv) 6 x 6 x 4 cm. laceration over lateral aspect of right elbow, 7 x 2 x 2 c.m. laceration over right forearm.

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(v) Sutured wound over chin and right side of face;

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(vi) Sutured wound over right temporoparietal area

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PW.5’s evidence further shows that right lower limb of the claimant was amputated upto knee and he had taken treatment. He was in the hospital as inpatient for 130 days from 14.02.2008 to 23.06.2008. PW.5 deposed that the claimant had permanent physical disability of 76% in his right lower limb. It is needless to say that job of Executive Customer Service needs lots of movement for which one should have strong limbs. In the cross-examination of PW.3, change of his cadre after the accident from Executive

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Customer Service to Store Keeper was not denied. Even job of store keeper involves rigorous physical activities. PW.3 deposed that because he was not able to perform his job he tendered resignation.

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As per Schedule I, Part II, Sl.No.20 of the Employee’s Compensation Act, 1923 in cases of amputation below knee with stump exceeding 8.89 cms but below 12.70 cms, disability in percentage amounts to 50% to the whole body. Hence the Tribunal ought to have considered the disability accordingly.

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The contention of the claimant that he was getting salary of Rs.15,470/- was not denied. The same is supported by Ex.P16 pay slip. At the time of accident, the claimant was aged 26 years. Therefore applicable multiplier is 17. Since disability was 50% and having regard to the age of the claimant, 40% has to be super added to the income of the claimant by way of future prospects. Thus his future earnings works out to Rs.15,470/- x 12 x 17= Rs.31,55,880/-. Rs.31,55,880 + Rs.12,62,352/- (40% of Rs.31,55,880)= Rs.44,18,232/-. Therefore loss of future earnings due to disability would be (Rs.44,18,232/- x 50%=) Rs.22,09,116/-.

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The evidence of PWs.5 and 8 show that the

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claimant was required to use artificial limb. Their evidence shows that after the accident, the claimant underwent fixation of artificial limb. The evidence of PW.3 shows that on the first occasion, employer of the claimant had borne the expenses. The evidence of PW.8 further shows that the claimant was required to undergo replacement of artificial limb at least once in five years. It is no doubt true that the evidence of PW.8 shows that the costs of artificial limb ranges from Rs.30,000/- Rs.40,000/- to Rs.7,00,000/-. PW.8 deposed that artificial limb they offered, which is suitable for the claimant’s condition, costs Rs.7,07,620/-. Accordingly, they gave quotation.

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Admittedly, for the first time, employer of the claimant provided him artificial limb. It is true that claimant did not adduce any evidence to show that subsequently he underwent replacement of the same. However, it cannot be denied that he needs to undergo such replacement for effective movement once in five years. Considering over all evidence, this Court is of the considered opinion that the costs of artificial limb could be considered at Rs.1,00,000/-. The

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Tribunal was justified in holding that for his age, the claimant requires to undergo five replacements. Therefore compensation payable on the head of artificial limb comes to Rs.5,00,000/-. (Rs.1,00,000/- x 5)

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The maintenance costs for artificial limb can be considered at Rs.10,000/- per annum, therefore for 30 years, it comes to Rs.3,00,000/-.

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Considering the nature of the injuries and period of hospitalization, compensation awarded by the Tribunal on the head of pain and suffering needs to be retained. Since the claimant was hospitalized for 130 days in Kasturba Medical College Hospital, Manipal around 60 KMs from his hometown, compensation awarded on the head of attendant charges, diet and conveyance is on the lower side and that should have been reasonably assessed at Rs.1,000/- per day which comes to Rs.1,30,000/-.

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Compensation awarded at Rs.1,00,000/- on the head of loss of amenities is just one. As there is no evidence to show that because of his disability, the claimant has suffered loss of expectation of life, compensation need not be

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awarded on that head. Therefore the just compensation

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payable is as follows:

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Sl. No.	Particulars	Compensation amount in Rs.
1	Loss of future earnings	22,09,116/-
2	Future medical expenses for artificial limb	5,00,000/-
3	Maintenance of artificial limb	3,00,000/-
4	Pain and sufferings	1,00,000/-
5	Diet, food, nourishment, attendant & conveyance charges	1,30,000/-
6	Loss of amenities	1,00,000/-
	Total	33,39,116/-
	Less awarded bythe Tribunal	19,05,000/-
	Enhanced compensation	14,34,116/-

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The enhanced compensation shall carry interest at

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6% per annum. For the aforesaid reasons, appeal and cross objection are partly allowed. Hence the following:

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ORDER

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M.F.A.No.3880/2017 and M.F.A.Crob.No.112/2017 are partly allowed. The impugned award of the Tribunal is modified as follows:

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(a) The claimant is entitled to enhanced compensation of Rs.14,34,116/- with interest thereon at 6% per annum from the date of the petition till its realization.

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(b) Respondent No.4/Insurer-ICICI Lombard General

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Insurance Company Ltd. shall deposit the said amount before

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the Tribunal after adjusting the amount already deposited, if

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any, within four weeks from the date of receipt of copy of this order.

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Rs.10,00,000/- shall be invested in fixed deposit in the name of the claimant in any nationalized/scheduled bank of his choice for a period of five years and balance amount shall be

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released to him digitally on furnishing required documents.

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(d) Registry shall transmit the amount in deposit, if

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any, and trial Court 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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KSR

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List No.: 1 Sl No.: 51

M/S Icici Lombard General v. Mr Charles Mithun Shiri

Case brief

What is this about?

What did the court decide?

M/S Icici Lombard General v. Mr Charles Mithun Shiri

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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