Sri. Roopa Ram Vs the Manager

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED.16.08.2019 PASSED IN MVC NO.4803/2018 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE AND XXIV ACMM, MEMBER, MACT, BENGALURU, (SCCH-20), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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This appeal is filed by the injured challenging the judgment and award dated 16.08.2019 passed in MVC.No.4803/2018 by the V Additional Small Causes Judge and Member, MACT, Bengaluru (SCCH-20) (for short 'the Tribunal').

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Though this appeal is listed for admission, with

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the consent of the learned counsel for the parties, it is taken up for final disposal.

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The brief facts leading to the filing of this appeal are that the appellant met with a road accident on 25.07.2018, while he was proceeding on a motorcycle

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bearing registration No.KA-41-K-9756. At that time, the

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driver of a car bearing registration No.KA-01-ML-7903 drove the same in a rash and negligent manner and dashed against the appellant's motorcycle, resulting in grievous injuries to the appellant. Thereafter, the appellant filed a claim petition under Section 166 of the Motor Vehicle Act, 1988 (for short 'MV Act') seeking compensation of Rs.50,00,000/-. The respondent/Insurance Company opposed the claim petition by denying liability, income and disability, and sought dismissal of the claim petition. The claimant examined himself as PW1 also got examined PW2 to PW4 and got marked Ex.P1 to Ex.P33. The respondents did not adduce any evidence. The Tribunal, after recording the evidence and on appreciation of the oral and documentary evidence on record, awarded compensation of Rs.11,75,394/- with interest at 9% per annum from the date of petition till its realization. Being aggrieved, this appeal is by the injured claimant.

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Sri.K.T.Gurudeva Prasad, learned counsel

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appearing for the appellant submits that the Tribunal has committed a grave error in not awarding any compensation under the head of loss of future income due to disability. It is submitted that PW2 and PW3 have assessed the disability at 11% and 36% respectively, and PW4, the Chartered Accountant has clearly deposed before the Tribunal that there is loss of income due to disability and has also produced evidence. However, the Tribunal, failed to consider these aspects and has awarded a meagre compensation by declining to award compensation under the head of loss of future income due to disability.

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In support of his contention, he placed reliance on the decision of the Hon'ble Supreme Court in the case of Sandeep Khanuja v. Atul Dande and Another¹ . Hence, he seeks to allow the appeal.

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Per contra, Sri.H.C.Betsur, learned counsel

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appearing for respondent No.1 supports the impugned

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1 (2017) 3 SCC 351

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judgment and award of the Tribunal and submits that the Tribunal has recorded a clear finding that the evidence of PW4 is not reliable, particularly in view of the fact that the income for the relevant year had reduced due to a decrease in sales turnover and other contributing factors.

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It is submitted that the disability assessed by PW3 is intellectual disability and the same cannot be considered as a disability for the purpose of determination of compensation. It is further submitted that even after the accident, the claimant has continued to work and earn income, and considering the said aspect, the Tribunal has rightly declined to award any compensation under the head of loss of future income due to disability. It is also submitted that the Tribunal has awarded exorbitant compensation under the heads of pain and suffering and loss of amenities. Therefore, the said amount can be considered as a just compensation to the injured claimant. Accordingly, he seeks to dismiss the appeal.

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I have heard the arguments of the learned

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counsel for the appellant, learned counsel for the respondent and meticulously perused the material

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available on record.

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The point that arise for consideration in this appeal is:

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" Whether the impugned judgment and award passed by the Tribunal calls for any interference?"

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The answer to the aforesaid question is affirmative for the following reasons:

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a. The appellant as well as the respondent are not in dispute that the appellant met with a road accident on 25.07.2018 and sustained grievous injuries, and the accident occurred due to the actionable negligence on the part of driver of the offending vehicle involved in the accident, which was insured with the respondent/Insurance Company. The jurisdictional police have filed a charge sheet against the driver of the car,

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holding him responsible for the accident. In view of the said finding, the Insurance Company is liable to indemnify and pay the compensation.

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b. The appellant was an inpatient for a period of 22 days at BGS Global Hospital, Bengaluru and provided treatment. In order to prove the claim petition, the injured examined himself as PW1 and deposed with regard to the aspect of negligence, the injuries sustained and the treatment taken.

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c. PW2, Dr.Ramesh, Orthopaedic surgeon has

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deposed before the Tribunal with regard to the nature of fractures and injuries suffered by the appellant and the treatment provided. A perusal of the oral evidence of PW1 and the medical records, more particularly the wound certificate at Ex.P7, discharge summary at Ex.P9 and other medical evidence clearly indicate that the appellant sustained the following injuries and fractures:

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"Left clavicle fracture, multiple ribs fracture, Left superior and interior pubic rami fracture, Left transverse D 6 fracture, Right frontotemporal

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contusion with adjacent Subarachnold hemorrhage (Medical emergencies due to bleeding in the space between brain and Tissue) pneumomediastinum (injury to the chest), surgical emphysema (bulging of skin with Air and Gas under skin) and Bilateral hemomastoid. (Collection of blood between chest Wall and lungs)."

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d. In order to prove the disability, the claimant examined PW2, an Orthopaedic surgeon, who deposed before the Tribunal that the appellant has suffered disability to the extent of 11% to the whole body. In addition, PW3, a Neurosurgeon examined the injured claimant, who has deposed before the Tribunal that the appellant had sustained head injuries, suffered loss of consciousness immediately after the accident, and had bleeding from the ears. He further stated that upon clinical examination, and based on the complaints of the appellant, the mental faculties of the injured claimant is not the same as prior to the accident, there is a memory impairment and slight memory loss. Ex.P29, the Neuropsychological assessment by Dr.Jayanthi M, indicates the IQ level and cognitive condition of the

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injured. It is to be noticed that PW3 considering the injuries suffered and placing reliance on Ex.P29, the IQ assessment opined that the appellant has sustained functional disability to the extent of 36.25%.

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e. Admittedly, the Tribunal has not awarded any compensation under the head of loss of future income due to disability. In order to prove the loss of future income due to disability, the appellant/claimant examined PW4, a Chartered Accountant, who deposed before the Tribunal that the loss in the business may be due to reduction in sales turnover and also for other reasons. The claimant also produced income tax returns for the assessment years 2016-2017, 2017-2018. On considering the oral evidence of PW1 and PW4 along with documentary evidence on record and keeping in mind the fact that the business carried on by the appellant was that of a Hindu Undivided Family and income has been substantially reduced due to disability of the appellant, I am of the considered view that the ends of justice would be met if

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the loss of income of the appellant injured is assessed at Rs.10,000/- per month. Having reassessed the income of the injured at Rs.10,000/- per month, it is further to be noted that the evidence of PW2 and PW3, read together corroborating with the medical and documentary evidence on record, indicates varying assessments of disability at 11% and 36% respectively. In the circumstances, I am of the view that it would be just and appropriate to assess the disability of the appellant at 25% to the whole body. Having assessed the income and disability, the appellant would be entitled to the award of compensation under the head of loss of future income due to disability.

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The Hon'ble Supreme Court in the case of Sandeep Khanuja referred supra at paragraph No.14 held as under:

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"14. The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. In this sense, MACT approached the issue in the right direction by taking into consideration the aforesaid test. However, we feel that the conclusion of MACT, on the application

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of the aforesaid test, is erroneous. A very myopic view is taken by MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. MACT thought that since the appellant is a Chartered Accountant, he is supposed to do sitting work and, therefore, his working capacity is not impaired. Such a conclusion was justified if the appellant was in the employment where job requirement could be to do sitting/table work and receive monthly salary for the said work. An important feature and aspect which is ignored by MACT is that the appellant is a professional Chartered Accountant. To do this work efficiently and in order to augment his income, a Chartered Accountant is supposed to move around as well. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Many times Chartered Accountants are supposed to visit their clients as well. In case a Chartered Accountant is primarily doing audit work, he is not only required to visit his clients but various authorities as well. There are many statutory functions under various statutes which the Chartered Accountants perform. Free movement is involved for performance of such functions. A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily abled. Movements of the appellant have been restricted to a large extent and that too at a young age. Though the High Court recognised this, it did not go forward to apply the principle of multiplier. We are of the opinion that in a case like this and having regard to the injuries suffered by the appellant, there is a definite loss of earning capacity and it calls for grant of compensation with the adoption of multiplier method, as held by this Court in Yadava Kumar v. National Insurance Co. Ltd.

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[Yadava Kumar v. National Insurance Co. Ltd., (2010) 10 SCC 341 : (2010) 4 SCC (Civ) 168 : (2010) 3 SCC (Cri) 1285] :

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“9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.

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10. In some cases for personal injury, the claim could be in respect of lifetime's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases—and that is now recognised mode as to the proper measure of compensation—is taking an appropriate multiplier of an appropriate multiplicand.” [ Ed. : As observed in Arvind Kumar Mishra v. New India Assurance Co. Ltd., (2010) 10 SCC 254, pp. 256-57, paras 9-10.] "

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10. Keeping in mind the enunciation of law laid

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down by the Hon'ble Supreme Court, I am of the view that

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the appellant/claimant has established before this Court

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that due to the accidental injuries sustained, he has suffered disability and as a consequence thereof, there is loss/reduction in his earning capacity from the business. Considering the aforesaid aspects and for the reasons stated above, I am of the considered view that the appellant/claimant is entitled to compensation under the head of loss of future income due to disability. The claimant was aged about 42 years at the time of the accident; hence, the appropriate multiplier would be 14. Having assessed the income and disability of the appellant/claimant, the appellant/claimant is entitled to compensation under the head of loss of future income due to disability as under:

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Rs.10,000 X 12 X 14 X 25% = Rs.4,20,000/-.

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The award of compensation by the Tribunal

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under the heads of pain and suffering, loss of amenities and medical expenses remains unaltered. However, taking

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note of the treatment provided, injuries suffered and duration of treatment as inpatient and outpatient of the appellant, oral and documentary evidence, I am of the considered view that the compensation awarded by the Tribunal under other heads is required to be reassessed by appropriately enhancing the same. The appellant is entitled to the modified compensation as under:

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HEADS	AMOUNT (in Rs.)
Pain & suffering	1,00,000
Loss of amenities	1,00,000
Medical expenses	9,54,394
Loss of income during laid-up period (Rs.10,000 X 4)	40,000
Loss of future income due to disability	4,20,000
Towards conveyance, attendant charges, food and nourished food Total	30,000 16,44,394

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Thus, the appellant-claimant shall be entitled to total compensation of Rs. 16,44,394 /- as against Rs.11,75,394/- awarded by the Tribunal.

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In the result, this Court proceeds to pass the following:

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ORDER

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a) Appeal stands allowed in part .

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b) The impugned judgment and award of

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the Tribunal is modified to an extent that the appellant-claimant would be entitled to total compensation of Rs. 16,44,394 /- as against Rs.11,75,394/awarded by the Tribunal.

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c) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

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d) The Insurance Company shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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