Jayarame Gowda K S Vs Chennai Mines

JAYARAME GOWDA K S S/O SUBBRE GOWDA, AGED ABOUT 34 YEARS R/AT NO.232, 11TH CROSS, 5TH MAIN, OLD GANESH TEMPLE ROAD, RAJAGOPAL NAGAR, PEENYA II STAGE, BENGALURU-560058

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…APPELLANT

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(BY SRI. H V NAGARAJA RAO, 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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CHENNAI MINES

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NO.106, GANAPATHY SYNDICATE NAGAR, MELAKOTTAIYUR, CHENNAI-600048

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ANNA DURAI S/O MUNIPPAN, AGED ABOUT 37 YEARS RESIDENT OF MEKKANAMPATTI VILLAGE, MATTUR PALACODE, DHARMAPURI DISTRICT, TAMIL NADU-636808

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RELIANCE GENERAL INSURANCE

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COMPANY LIMITED, BRANCH OFFICE, NO.14, 1ST FLOOR, NGT COMPLEX, RAMASWAMY STREET, WEST TAMBARAM-600045 TAMIL NADU

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…RESPONDENTS

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(BY SRI. ASHOK N PATIL, ADVOCATE FOR R3 R2 SERVED

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NOTICE TO R1 IS DISPENSED WITH V/O DTD 04.12.2022)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11/07/2018, PASSED IN MVC NO.6879/2016, ON THE FILE OF THE XXII ADDITIONAL SMALL CAUSES JUDGE & XX ACMM., AND MEMBER, MACT, BENGALURU (SCCH-24), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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IN MFA NO. 8715/2018

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BETWEEN:

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THE RELIANCE GENERAL INSURANCE COMPANY LTD., BRANCH OFFICER AT 1ST FLOOR, NTG COMPLEX, NO. 14, RAMASWAMY STREET, WEST TAMBARAM - 600045 TAMIL NADU ALSO AT RELIANCE GENERAL INSURANCE COMPANY LIMITED EAST WING, 5TH FLOOR, NO 28, CENTENARY BUILDING, M G ROAD, BENGALURU - 560001 NOW REPRESENTED BY MANAGER LEGAL

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...APPELLANT

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(BY SRI. ASHOK N PATIL, ADVOCATE)

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AND:

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JAYARAME GOWDA K S S/O SUBBRE GOWDA AGED ABOUT 34 YEARS R/AT NO 232,11TH CROSS, 5TH MAIN ROAD, OLD GANESH TEMPLE ROAD,

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RAJAGOPALA NAGAR, PEENYA II STAGE, BENGALURU – 560058

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SHRI CHENNAI MINES NO. 106, GANAPATHY SYNDICATE NAGAR MELAKOTTAIYUR CHENNAI – 600048

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SRI ANNA DURAI S/O MANIPPAN AGED ABOUT 37 YEARS R/AT MEKKANAMPATTI VILLAGE, MATTUR PALACODE DHARMAPURI DISTRICT TAMIL NADU - 636808

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...RESPONDENTS

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(BY SRI. H V NAGARAJA RAO, ADVOCATE FOR R1 NOTICE TO R2 & R3 IS DISPENSED WITH V/O DTD 04.12.2018)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.07.2018 PASSED IN MVC NO.6879/2016 ON THE FILE OF THE XXII ASCJ & XX ACMM, MEMBER, MACT, BENGALURU, AWARDING COMPENSATION OF RS.18,16,500/- WITH INTEREST @ 8 % P.A. FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT AND ETC.

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THESE APPEALS, 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 C.M. POONACHA

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ORAL JUDGMENT

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

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These appeals arise out of the award in MVC

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No.6879/2016 passed by the XXII Additional Small Causes

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Judge and XX Additional Chief Metropolitan Magistrate and MACT, Bengaluru (SCCH-24) (for short the ‘Tribunal’). The

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appellant in MFA No.9017/2018 was the claimant and respondent Nos.1 to 3 On the said appeal were respondent Nos.1 to 3 in MVC No.6879/2016. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Trial Court.

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On 30.1.2016 at 2.30 a.m., when the claimant was sitting in his parked Bharath Benz vehicle bearing Registration No.KA-02-AE-2290 on service road of Hosur-Krishnagiri Highway within the limits of Krishnagiri Police Station, Tipper lorry bearing Registration No.TN-11-J-7070 hit the parked Bharat Benz vehicle from the hind side resulting in the collision of the car and lorry which was parked in front of the same. In the accident, the claimant suffered grievous injuries. At the relevant time, respondent Nos.1, 2 and 3 were the registered owner, driver and insurer of Tipper lorry bearing No.TN-11-J7070 respectively.

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The claimant filed MVC No.6879/2016 against the respondents claiming compensation of `80,00,000/- from them, alleging that the accident occurred due to the actionable negligence on the part of respondent No.2 in driving Tipper

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lorry bearing Registration No.TN-11-J-7070. He further contended that due to the accident, he suffered severe injuries to his both legs resulting in the amputation of both legs. He was working as driver in Kongovi Electronics Pvt. Ltd., and was earning `34,000/- p.m. Due to the accidental injuries, he suffered permanent physical disability and lost his future earnings. He spent huge amount for his medical expenses, suffered lot of pain and respondents are liable to pay the compensation for the said damages.

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Respondent Nos.1 and 2 did not contest the petition. Respondent No.3 contested the petition denying the involvement of the insured Tipper lorry in the accident, injuries suffered by the claimant, his age, occupation, income and its liability to pay the compensation.

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Before the Tribunal, the claimant was examined as PW.1, the doctor who issued the disability certificate was examined as PW.2 and employer’s representative was examined as CW.1. Exs.P1 to P17 and Exs.C1 to C3 were marked. Respondent No.3 did not adduce any evidence.

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The Tribunal on hearing both the parties by the impugned award held that the accident and consequential injuries to the claimant occurred due to the actionable negligence on the part of respondent No.2 in driving Tipper lorry bearing Registration No.TN-11-J-7070.

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The Tribunal considered the disability of the claimant at 45% to the whole body, his income at 10,145/p.m., applied 16 multiplier and awarded compensation of 8,76,480/- on the head of loss of future earnings.

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The Tribunal in all awarded compensation of

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`18,16,487/- under different heads as follows:-

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Sl. No	Particulars	Amount in (`)
1	Pain and suffering	1,00,000.00
2	Food and nourishment, conveyance & attendant charges	80,000.00
3	Medical expenses	2,19,427.00
4	Loss of income during the period of treatment	40,580.00
5	Loss of future earnings	8,76,480.00
6	Prosthesis and future maintenance	3,00,000.00
7	Loss of amenities of life	2,00,000.00
	Total	18,16,487.00

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The Tribunal awarded interest thereon at 8% p.a., from the date of petition till date of realization and directed respondent No.3 – insurer to pay the compensation.

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Challenging the quantum of compensation the claimant has preferred MFA Mo.9017/2018 and the insurer has preferred MFA No.8715/2018.

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Sri H.V.Nagaraja Rao, learned counsel for the claimant reiterating the grounds of appeal submits that PW2the doctor assessed the permanent physical disability at 50% and the evidence on record shows that the claimant has 100% functional disability. The evidence on record shows that due to amputation of his both lower limbs, claimant was terminated from the services and he is not able to resume his driving job. He further submits that the income of the claimant considered by the Tribunal is contrary to the evidence on record and compensation awarded on the other heads is also on the lower side.

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Sri Ashok N.Patil, learned counsel for respondent No.3 – insurer, submits that as per the evidence of PW.2 himself, the permanent physical disability suffered by the

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claimant is 50% to the whole body. Further, CW.1 has admitted that he was covered under the Rights of Persons with Disabilities Act, 2016 (for short the ‘ Disabilities Act’). As per Section 3 of the said Act, a person cannot be terminated due to his disability, but he has to be provided alternative employment

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in the same establishment which suits him. If at all, the claimant was terminated from services, he would have produced his bank statements subsequent to the period of accident, but he has withheld the same. That goes to show that the claimant is still in gainful employment, thereby there is no loss of future earnings. He further submits that Ex.P12 – pay slips show that the salary of claimant was 10,145/- and the rest of the amount paid to him was by way of incentive and that does not form part of the regular monthly salary. Therefore, the Tribunal was right in considering his income only at 10,145/- p.m. He submits that the compensation awarded on the other heads is on the higher side.

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On considering the submissions of both sides and examining the material on record, the question that arises for consideration of the Court is:

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“Whether the compensation awarded by the Tribunal in the impugned award to the claimant is just one?“

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Analysis

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The finding of the Tribunal that on 30.1.2016 at about 2.30 a.m., the accident took place due to the culpable negligence on the part of respondent No.2 in driving Tipper lorry bearing Registration No.TN-11-J-7070 and in that accident the claimant suffered grievous injuries to both his legs, is not in dispute.

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The evidence on record in Ex.P7 shows that the claimant was first taken to Government Hospital, Hosur and he was found with the following injuries;

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(1) right foot crush injury of the level of ankle;

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(2) crush injury left lower leg, lower 1/3^rd causing extreme injury to bones and muscles.

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From Hosur Government Hospital, the claimant was shifted to Arogya Seva Private Hospital, Hosur and thereafter, he was shifted to Hosmat Hospital, Bengaluru.

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The evidence on record shows that he was treated in ICU in Hosmat Hospital between 30.1.2016 and 8.2.2016. The evidence of PW.2 and Ex.P6 – discharge summary, show that the claimant underwent two surgeries to his both lower limbs. During first surgery, his right lower limb was amputated

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below knee on 30.1.2016. The evidence further shows that subsequently, on 2.2.2016 his left leg was also amputated above knee. Ex.P6 shows that the claimant had suffered right leg degloving injury with ankle fracture dislocation and left leg degloving injury with type III C comminuted tibia and fibular shaft fracture.

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PW.2 is Orthopaedic Surgeon of Hosmat Hospital, where the claimant was treated. He assessed the permanent physical disability of the claimant to the whole body at 50%. Though it is contended that PW.2 is not the treated doctor, the fact that he has been working in Hosmat Hospital as Orthopaedic Surgeon is not disputed. His competence to assess the disability is also not disputed.

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The claimant was a driver by profession. As there was loss of both lower limbs above/below knee, it cannot be said that he would be able to drive the heavy vehicle. His driving licence – Ex.P4 coupled with the evidence of CW.1 shows that the claimant was holding Heavy Vehicle Driving Licence and he was employed in Kongovi Electronics Pvt. Ltd., as driver.

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Learned counsel for the insurer does not dispute the fact that the claimant would not be able to drive a Heavy Vehicle, but his contention is that the employer of claimant was a big establishment hiring 125 employees as deposed by CW.1. Therefore, the provisions of Disabilities Act are applicable. He further submits that as per Section 3, the employee in an establishment suffering disability cannot be terminated, but he should be given appropriate alternative employment in the same establishment.

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It is no doubt true that in Section 2(i) of the Disabilities Act, establishment is defined as government as well as private establishment. The evidence of CW.1 shows that as the claimant has lost both his lower limbs upto certain level and having regard to the fact that there was no alternative job to suit the condition and educational qualification of the claimant, the employer has terminated him. If at all there is any legal infraction on the part of the employer of the claimant, the Courts cannot deny him compensation for such fault and it cannot be held that there is no loss of future earnings.

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The evidence of CW.1 and Ex.P12-pay slips from September 2015 to January 2016 and bank statement of the

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claimant at Ex.P13 coupled with the evidence show that the claimant was being paid around 34,000/- p.m. It is true that in the pay slips, his salary is shown as 10,145/- and rest of the amount i.e., `23,000/- was shown as incentives. Even if the same did not form part of his exact salary, Ex.P13 – bank statement of the claimant shows that the following sum was

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credited to his account every month:

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7.7.2015	salaryforJune2015	`27,439/-
7.8.2015	salaryforJuly2015	`31,218/-
7.9.2015	salary for August 2015	`30,813/-
7.10.2015	salary for September 2015	`35,653/-
7.11.2015	salary for October 2015	`32,000/-
	Total	`1,57,123/-

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The above said amount was his monthly income. To assess his monthly income for the purpose of computation of loss of income, his average monthly income out of the above said amount has to be taken. Therefore, 31,425/(1,57,123/- / 5=31,424.60 rounded off to 31,425/-) is the average monthly income. As the claimant is found to have suffered 100% functional disability and having regard to his age, 40% has to be superadded to his income by way of future prospects. Therefore, his monthly income would be 43,995/[31,425/- + `12,570/- (40%)] and his annual income is

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5,27,940/- (43,995/- x 12). As per the Finance Act, 2016, the tax payable for the above said income is 30,588/-. Therefore, his annual income would be 4,97,352/- (5,27,940/- 30,588/-). The applicable multiplier is 16. Therefore, loss of future earnings for the claimant is `79,57,632/-.

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Considering the nature of injuries, period of hospitalization and other evidence on record, the compensation awarded on the heads of pain and suffering, diet, attendant charges and conveyance, and having regard to the evidence of CW.1, the compensation awarded on the head of future medical expenses i.e., prosthesis and future maintenance and loss of amenities is just one and need to be maintained. The medical expenses awarded based on the documents produced by the claimant also need to be maintained. Therefore, the just

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compensation payable is as follows:

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Sl. No	Particulars	Amount in (`)
1	Pain and suffering	1,00,000.00
2	Food, nourishment, conveyance & attendant charges	80,000.00
3	Medical expenses	2,19,427.00
4	Loss of future earnings	79,57,632.00
5	Prosthesis and future maintenance	3,00,000.00
6	Loss of amenities of life	2,00,000.00
	Total=	88,57,059.00
	Less awarded by the Tribunal=	18,16,487.00
	Enhanced by=	70,40,572.00

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The Tribunal awarded interest at 8% p.a., without assigning any special reasons. Therefore, it is just and proper to award interest at 6% p.a., on the entire compensation.

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For the aforesaid reasons, both the appeals of the claimant and insurer deserve to be allowed in part.

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Hence, the following:

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ORDER

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i. The appeals are allowed in part.

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ii. The amount awarded in MVC No. MVC No.6879/2016 passed by the XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate and MACT, Bengaluru (SCCH-24), is modified as follows:

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a. The claimant is entitled to compensation of `88,57,059.00 with interest at 6% p.a., from the date of petition till date of relization;

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b. Respondent No.3 – insurer shall deposit the aforesaid compensation before the Tribunal, on adjusting the amount already deposited, if any, within six weeks from the date of receipt of copy of this order;

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c. Out of the compensation awarded, 50% shall be digitally released to the claimant on furnishing

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required documents and 50% shall be invested in Fixed Deposit in any nationalized/scheduled bank of the choice of the claimant for a period of five years;

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iii. The amount in deposit, if any and TCR shall be transmitted to the Tribunal forthwith.

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Sd/-

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(K.S.MUDAGAL) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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ND List No.: 1 Sl No.: 37

Jayarame Gowda K S v. Chennai Mines

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Jayarame Gowda K S v. Chennai Mines

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