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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF FEBRUARY, 2022 BEFORE
THE HON’BLE MR.JUSTICE P.KRISHNA BHAT M.F.A.No.4050/2011 C/W. MFA NO.5013/2012
IN MFA NO.4050/2011:
BETWEEN:
UNITED INDIA INSURANCE CO. LTD., REGIONAL MANAGER UNITED INDIA INSURANCE CO. LTD., SHANKARNARAYANA BUILDING M.G.ROAD, BANGALORE - 560 001 BY ITS MANAGER.
...APPELLANT (BY SRI.O.MAHESH, ADVOCATE)
AND:
G.A.MANJUNATHA
AGED 46 YEARS
S/O. LATE G. ACHUTHA
R/A NO.558, 43RD CROSS
JAYANAGAR, 8TH BLOCK
BANGALORE - 560 082.
T. NARAYANA SWAMY, MAJOR
S/O. T. THIMMAIAH
M/S. RAGHAVENDRA TOURS
AND TRAVELS, NO.130
8TH MAIN, 17TH CROSS
MALLESHWARAM WEST
BANGALORE - 560 003 (EX-PARTE BEFORE MACT)
…RESPONDENTS
(BY SMT. G.K.SREEVIDYA, ADV. FOR SRI T.N.VISHWANATH, ADV. FOR R1; V/O DT.22.07.2011, NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.12.2010 PASSED IN MVC NO.2232/2010 ON THE FILE OF THE IX ADDITIONAL SENIOR CIVIL JUDGE, MEMBER MACT-7, COURT OF SMALL CAUSES, BANGALORE, AWARDING A COMPENSATION OF RS.1,74,000/- WITH INTEREST @ 6% P.A. ON RS.1,64,000/- FROM THE DATE OF PETITION TILL REALIZATION.
IN MFA NO.5013/2012:
BETWEEN:
SHRI MANJUNATHA G.A. S/O. LATE SRI G. ACHUTHA AGED ABOUT 47 YEARS R/AT NO.558, 43RD CROSS JAYANAGAR, 8TH BLOCK BANGALORE - 560 082.
...APPELLANT
(BY SMT. G.K.SREEVIDYA, ADV. FOR SRI T.N.VISHWANATH, ADV.)
AND:
UNITED INDIA INSURANCE CO. LTD.,
REGIONAL OFFICE
NO.25, 1ST FLOOR
SHANKARNARAYANA BUILDING
M.G.ROAD, BANGALORE - 560 001
MR. NARAYANA SWAMY T.
S/O. SRI T. THIMMAIAH
M/S. RAGHAVENDRA TOURS
AND TRAVELS
NO.130, 8TH MAIN, 17TH CROSS
MALLESHWARAM WEST
BANGALORE - 560 003
…RESPONDENTS
(BY SRI O. MAHESH, ADV. FOR R1; V/O DT.11.02.2015, NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 14.12.2010 PASSED IN MVC NO.2232/2010 ON THE FILE OF THE 9TH ADDITIONAL SENIOR CIVIL JUDGE, MEMBER MACT-7, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEALS ARE COMING ON FOR HEARING THROUGH VIDEO CONFERENCING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
These appeals are at the instance of the Insurance Company and claimant calling in question the correctness of the judgment and award dated 14.12.2010 passed in MVC No.2232/2010 on the file of the IX Additional Senior Civil Judge, Small Causes Court, Bangalore.
The claimant has stated in the petition that on 04.02.2010, he was traveling as a passenger in Tata Indica Car bearing registration No.KA-04-B-7234 and at about 1.15 a.m., on Lalbagh Road near Prestige Group Building, the driver of the car drove the same in a rash and negligent manner and dashed against another car bearing registration No.UP-80-AF- 6737 to its hind side. On account of tremendous impact of the accident, the claimant had suffered grievous injuries.
Before the Claims Tribunal, respondent No.1-Insurance Company entered appearance and filed its detailed written statement denying the material averments in the claim petition and respondent No.2-owner of vehicle has remained ex- parte.
During the trial, the claimant has examined himself as PW.1, the Medical Expert from Jayanagar Orthopedic Centre was examined as PW.2 and the Manager of his employer M/s. SLK Software Services Pvt. Ltd. was examined as PW.3. Exs.P1 to P28 were marked. Respondents did not examine any witnesses. Ex.R1, the Insurance Policy was marked.
After hearing the learned counsel on both sides and perusing the records, the Tribunal allowed the claim petition in part and awarded a compensation of Rs.1,74,000/- with interest thereon at 6% p.a. on Rs.1,64,000/-. The liability to pay the compensation was fastened on the Insurance Company, which was respondent No.1 before the Tribunal.
Learned counsel for the appellant- Insurance Company in support of his appeal vehemently contended that the negligence on the part
of the driver of the offending vehicle has not been proved by necessary evidence before the Tribunal. He submitted that even though the employer had reimbursed a sum of Rs.25,000/- towards medical expenses, the Tribunal has again awarded the same in favour of the claimant, which the Insurance Company is not liable to pay. Nextly, he contended that the claimant continued to work in the Company till the end of July 2010 and in spite of the accident, the Tribunal has awarded Rs.10,000/- towards 'loss of income during the laid up period' of two months, which is erroneous. Lastly, he contended that since the claimant did not suffer any functional disability, no compensation under the head of 'loss of earning capacity' could have been awarded and therefore, the Tribunal has erred in awarding Rs.84,000/- under the head of 'loss of earning capacity'. He therefore, submits that the appeal preferred by the Insurance
Company is entitled to be allowed and claim petition should be dismissed.
Learned counsel for the claimant in support of her appeal while refuting the contentions of the learned counsel for the Insurance Company, submitted that the wound certificate and evidence of PW.2 clearly shows that the claimant had suffered comminuted fracture of the right humerus. She therefore, submitted that a sum of Rs.25,000/- awarded by the Tribunal under the head of 'Pain and Suffering' is on the lower side and it is required to be enhanced. She further submitted that the claimant was earning a monthly salary of Rs.1,31,075/- as per Ex.P10 - Salary Certificate, which has also been supported by the evidence of PW.3, who is the Manager of the employer of the claimant. She submitted that in spite of the same, the Tribunal has awarded a meager amount of Rs.10,000/- towards
'loss of income during the laid up period', which is required to be enhanced. She submitted that under the head of 'loss of amenities', the Tribunal has awarded only Rs.10,000/- which was highly on the lower side. As could be seen from the evidence of PW.3, which reflect the disability leading to loss of amenities suffered by the claimant-PW.1, she submitted that on the said head also the compensation is required to be enhanced. She contended that the Tribunal has awarded only Rs.10,000/- under the head of 'future medical expenses' even though PW.2, who is the Medical Expert has clearly opined that the surgery for removal of the implants in the right humerus would require Rs.30,000/-. Finally, she submitted that the award of Rs.84,000/- made by the Tribunal under the head of 'loss of earning capacity' is also on the lower side and therefore, it is required to be enhanced. She
submitted that the appeal of the claimant is required to be allowed and the compensation be suitably enhanced and the appeal of the Insurance Company should be dismissed.
I have given my anxious consideration to the submissions made on both sides and I have carefully perused the records.
Learned counsel for the Insurance Company has vehemently contended that the finding of the Tribunal on the question of negligence is not supported by evidence. However, perusal of the evidence of PW.1, who is the injured eye witness shows that he has emphatically stated that it was the rash and negligent driving of the driver of the insured vehicle alone was the cause for the accident and he was not cross examined on that aspect by the Insurance Company. Further, contents of Ex.P2-
Complaint, Ex.P3- Spot Panchanama, Ex.P4-IMV Report Ex.P5-Sketch and Ex.P6-Charge Sheet filed against the driver of the insured vehicle also clearly support the version of PW.1. The very fact that the offending car had dashed against the hind side of the car bearing Registration No.UP-80-AF-6737 speaks volumes about the rash and negligent driving of the offending car by its driver. In that view of the matter, I do not find any merit in the contention urged on behalf of the learned counsel for the Insurance Company that there was no negligence on the part of the driver of the offending car. Accordingly, I reject the same.
Learned counsel for the Insurance Company also advanced the contention that the employer of PW.1 had reimbursed a sum of Rs.25,000/- towards 'medical expenses'. I do not find any support from the evidence placed on record to
sustain the said contention and accordingly, I reject the same.
The Tribunal has awarded a sum of Rs.10,000/-towards 'loss of income during the laid up period' to PW.1. The submission of the learned counsel for the appellant-Insurance Company is that it is on the higher side. I have carefully perused the records. It shows that PW.1 was working as a Consultant with M/s. SLK Software Services Pvt. Ltd. PW.1-claimaint as well as PW.3-Manager of the employer have both spoken to the effect that he was paid remuneration of Rs.1,31,075/- per month. Ex.P10 is the Salary Certificate, which is marked before the Tribunal. In view of the evidence of PWs.1 and 3 and Ex.P10-Salary Certificate, there is no good ground for me to reject the same. Accordingly, it has to be held that the monthly income derived by PW.1 as Consultant from his employer is Rs.1,31,075/- and
he was paying income tax of Rs.4,569/- and Professional Tax of Rs.200/- per month. Accordingly, after deducting the same, he was getting monthly income of Rs.1,26,306/- from his employer. The evidence of PW.3 shows that the claimant was on leave for the whole month of February-2010 and therefore, it has to be taken that he had lost the leave to his credit for one month. Therefore, far from Rs.10,000/- awarded towards 'loss of income during the laid up period' being on the higher side, it is far too low and a sum of Rs.1,26,306/- is awarded towards 'loss of income during the laid up period'.
The last contention of the learned counsel for the Insurance Company is that a sum of Rs.84,000/- awarded by the Tribunal under the head of 'loss of earning capacity' is without any basis in the evidence. In support of the said contention, he drew my attention to the evidence of the Medical Expert-
PW.2 himself who has stated that though there was a physical disability on account of the injury caused in the accident, there was no functional disability caused due to the accident to the claimant-PW.1. Perusal of the claim petition, the evidence adduced shows that the claimant had been working as a Consultant in a software company namely M/s. SLK Software Services Pvt. Ltd. The affected part of the body on account of the accident is the right humerus. There is no restriction on his physical movement. The Medical Expert has also stated that there is no functional disability leading to loss in the earning capacity. Under such circumstances, the award of Rs.84,000/- made by the Tribunal under the head of 'loss of earning capacity' cannot be sustained and accordingly, the submission of the learned counsel for the Insurance Company is to be upheld on this head.
Now, coming to the submission made by the learned counsel for the claimant that the compensation awarded under the various heads are too low and therefore, the compensation awarded is required to be recomputed and higher compensation is required to be awarded is concerned, under the head of 'pain and suffering', the Tribunal has awarded only Rs.25,000/-. The evidence of PW.1 and also the evidence of treating Doctor - PW.2 shows that the claimant had sustained the following injuries: 1. Comminuted fracture of Proximal Humerus right and 2. Underwent O.R. & I.F. with locking plate on 06.02.2010 and discharged on 08.02.2010. The medical expert has stated that on account of the same, PW.1 has having following complaints: 1. Pain in the right shoulder. 2. Inability to lift the shoulder. 3. Inability to drive the car.
Inability to do routine activities in right upper limb.
The Tribunal has observed under the head of 'pain and agony' as follows: "Humerus is the arm bone connecting the shoulder and elbow and it is considered to be a major bone. In comminuted fracture of humerus the bone becomes too many fragments. The compound fracture means the bones are exposed to the wound resulting in tearing of skin and soft tissue and bleeding and some tiredness exposed to risk of infection."
Since the fracture is of humerus bone into too many fragments as correctly noted by the Tribunal, under the head of 'pain and suffering', a sum of Rs.50,000/- is required to be awarded. Accordingly, a sum of Rs.50,000/- is awarded under the head of 'paid and suffering'. Under the head of 'loss of amenities', the Tribunal has awarded a sum of Rs.10,000/-. The
grievance of learned counsel for the claimant is that it is far too low. Now the relevant evidence to be considered is apart from the evidence of PW.1, the evidence of Medical Expert-PW.2 which shows the following: "6. On Clinical examination I found the following disabilities: 1. Joint Line Tenderness of Right Shoulder Joint. 2. Restriction of joint movement Right shoulder flexion - Extension 70 degree Normal 0-220 degree. 3. Rotation 60 degree Normal 0-180 degree. Abduction, Adduction 70 degree, Normal 0-180 degree. 4. Difficulty to lift objects over head, putting on clothes, combing and Buttoning.
The radiological examination showed the following: 1. Fracture mal-united with implants situ."
As is obvious from the claimant, who is a busy Engineer cannot do some of the essential and routine functions without lot of difficulty, like lifting of objects over head, putting on clothes, combing and buttoning, etc. In the facts and circumstances of this case and also keeping in view the observations of the Hon’ble Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and another reported in (2011)1 SCC 343, more than token amount of compensation has to be given under the head of 'loss of amenities' as he is not being awarded any compensation under the head of 'loss of earning capacity' based on multiplier method. Accordingly, I award a sum of Rs.1,00,000/- under the head of 'loss of amenities'. Under the head of 'future medical expenses', the Tribunal has awarded a sum of Rs.10,000/-. The Medical Expert clearly stated that the implants were fixed and they were still in situ. He has also stated that PW.1 requires one
more surgery for removal of the implants and as on the date of giving evidence, which was in the year 2010, he has stated that the expense was Rs.30,000/. The cost of surgery is increasing every year and therefore, at whatever point of time, the essential surgery which is required, he might have to undergo, the cost could not be less than Rs.30,000/-. Accordingly, a sum of Rs.30,000/- is required to be awarded under the head of 'future medical expenses'. Accordingly, a sum of Rs.30,000/- is awarded towards 'future medical expenses'. Hence, the claimant is entitled to the awarded compensation as follows: 1. Pain and suffering
- Rs. 50,000/- 2. Medical expenses
- Rs. 25,000/- 3. Future medical expenses - Rs. 30,000/- 4. Loss of amenities
- Rs.1,00,000/- 5. Loss of income during the laid up period
- Rs.1,26,306/- 6. Nourishing food, etc. - Rs. 10,000/- Total
- Rs.3,41,306/-
The Tribunal has awarded a sum of Rs.1,74,000/-. Therefore, enhanced compensation is Rs.1,67,306/-. Out of the enhanced compensation, the claimant is entitled to interest at the rate of 6% per annum from the date of decision till the date of payment by giving deduction to interest for a period of 377 days as already directed on the enhanced compensation. Similarly, no interest is payable on future medical expenses of Rs.30,000/-.
Both the appeals are allowed-in-part to the said extent.
The amount in deposit shall be transmitted to the learned MACT along with the records.
Sd/- JUDGE