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M.F.A.No.66/2018 1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF JULY 2023 PRESENT THE HON’BLE MRS. JUSTICE K.S.MUDAGAL AND THE HON’BLE MR.JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.66/2018 (MV-I)
BETWEEN:
M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LTD., MOTOR CLAIMS HUB NO.98, SVR COMPLEX 2ND FLOOR, NEAR AYYAPPA TEMPLE HOSUR MAIN ROAD, MADIWALA BENGALURU - 560016 NOW REP. BY IT LEGAL MANAGER M/S ICICI LOMBARD GIC LTD. REGIONAL OFFICE, THE ESTATE 9TH FLOOR, DICKENSON ROAD M.G.ROAD, BENGALURU – 42
...APPELLANT
(BY SRI.B C SHIVANNE GOWDA, ADVOCATE)
AND:
1 . SUNDAR M @ SUNDAR MUTHU S/O MUTHU, NOW AGED ABOUT 30 YEARS R/AT NO.3/319, MAIN ROAD, PADALUR(WEST), PADALUR, PERAMBUALUR, TAMILNADU – 621 109
2 . BABU C S/O MUNNEPPA GOWDA SITE NO.63, FIRST FLOOR RAMANJANAPPA LAYOUT B.NARAYANAPURA BENGALURU – 560016 … RESPONDENTS
( R1 SERVED; NOTICE TO R2 IS D/W WITH V/C/O DTD: 05.01.2021)
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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 05.09.2017 PASSED IN MVC NO.4497/2015 ON THE FILE OF THE V ADDITIONAL SMALL CAUSES JUDGE, & XXIV ACMM, MEMBER, MACT, MAYO HALL UNIT, BENGALURU, (SCCH-20) AWARDING COMPENSATION OF RS.28,88,000/- WITH INTEREST @ 9% P.A.FROM THE DATE OF PETITION TILL REALIZATION.
THIS MISCELLANEOUS FIRST APPEAL HAVING BEEN HEARD AND RESERVED ON 21.06.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the award in MVC No.4497/2015 on the file of the V Addl. Small Causes Judge and MACT, Bengaluru, the Insurer has preferred this appeal.
The appellant was respondent No.1 and respondent No.1 was the claimant, respondent No.2 was the second respondent in MVC No.4497/2015 before the Tribunal. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.
On 02.07.2015 at about 10.00 a.m. when the claimant was proceeding on his motor cycle bearing No.TN 10/AB 3197 near Mahadevapura ring road bridge, the car bearing No.KA 03/AB 4530 hit the claimant’s motor cycle and caused the accident.
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Regarding the accident one A.Parthiban filed complaint against the driver of the car alleging that he drove the car in rash and negligent manner so as to endanger the human life and caused the accident. Based on such complaint K.R.Puram Traffic Police registered FIR in Crime No.109/2015 as per Ex.P1 against the driver of the car No.KA 03/AB 4530. On investigation, K.R.Puram Traffic Police filed charge sheet against the driver of the car as per Ex.P6 for the offences punishable under Sections 279, 338 of IPC and Sections 134(a) & (b) read with Section 187 of the MV Act, 1988. At the relevant time, respondent Nos.1 and 2 were the Insurer and registered owner of car bearing No.KA 03/AB 4530.
The claimant filed MVC No.4497/2015 against the respondents claiming that the accident occurred due to actionable negligence on the part of the driver of car No.KA 03/ AB 4530. He further contended that due to the said accidental injuries he suffered permanent physical disability and consequently loss of future earnings. He further contended that he has suffered immeasurable trauma, pain and he had to spend huge amount for medical expenses. Thus he claimed compensation of Rs.1,50,00,000/- from the respondents.
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Respondent No.2 did not contest the petition. Respondent No.1 alone contested the petition denying the occurrence of the accident, actionable negligence on the part of the driver of the Insured car, injuries suffered by the claimant, his age, occupation, income and its liability to pay the compensation.
On behalf of the claimant PWs.1 to 4 were examined and Exs.P1 to P28 were marked. Respondents did not lead any evidence.
The Tribunal by the impugned award held that the accident occurred due to the actionable negligence on the part of the driver of the car No.KA 03/AB 4530. The Tribunal based on the evidence of the claimant and medical evidence assessed the permanent physical disability of the claimant at 16%. The Tribunal based on the evidence of the claimant and PW.4 assessed the gross income of the claimant at Rs.95,000/- per month and annual income at Rs.11,40,000/-. The Tribunal deducted 30% towards income tax and arrived at the annual income at Rs.7,98,000/-. 9. Considering the claimant’s age as 27 years and applying 17 multiplier the Tribunal awarded compensation of
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Rs.21,70,560/- on the head of loss of future income. The Tribunal awarded total compensation of Rs.28,87,522/- on different heads as per the table below:
Sl. No. Particulars Award amount in Rs. 1 Pain and sufferings 1,00,000/- 2 Medical expenses 4,71,962/- 3 Nourishment and attendant charges 10,000/- 4 Conveyance 10,000/- 5 Loss of future income (Rs.7,98,000 x 17 x 16%) 21,70,560/- 6 Loss of amenities 25,000/- 7 Future medical expenses 1,00,000/-
Total 28,87,522/-
Further the Tribunal granted interest at 9% p.a. on the award amount. The Insurer challenges the award on the grounds of negligence as well as the quantum of compensation.
Submissions of Sri B.C.Shivannegowda, learned counsel for the appellant/Insurer:
The claimant has contributed for the accident. Though the claimant contended that he could not continue his services due to his physical disability and he was terminated from service, no termination letter or resignation letter was
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produced. The claimant was a soft ware engineer. The injuries suffered by him on his leg did not cause any functional disability to him. The evidence with regard to disability was unacceptable. When there was no loss of earning, the Tribunal committed error in awarding compensation on the head of loss of future earnings. The compensation awarded on other heads is also on the higher side. The interest awarded is arbitrary.
The claimant though served did not turn up to contest the appeal.
Considering the submissions of learned counsel for the appellant and on examination of the records, the points that arise for determination are:
i) Whether the finding of the Tribunal that the accident occurred due to actionable negligence on the part of the driver of car No.KA 03/AB 4530 is sustainable ?
ii) Whether the compensation and the interest awarded was just one ?
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ANALYSIS Reg. Negligence:
Claimant/PW.1 is the injured eye witness. In his deposition, he states that the accident occurred due to the actionable negligence of the driver of the car. Respondents also did not dispute that on the basis of the complaint of one A.Parthiban, FIR was registered against the driver of the car as per Ex.P1 and on investigation Charge sheet as per Ex.P6 was filed against him for the offences punishable under Sections 279, 338 of IPC and Section 134(a) & (b) read with Section 187 of the MV Act. Such evidence amounts to prima facie proof of actionable negligence on the part of the driver of the car.
Respondent No.2/the owner of the vehicle did not contest the petition denying the negligence on the part of his employee viz., the driver of the car. Though the Insurer contended that the claimant himself was responsible for the accident, it did not choose to examine the driver of the car. Thereby the evidence of the claimant and Ex.P1 and P6 regarding the actionable negligence on the part of the driver of the car stood unrebutted. Therefore, the Tribunal was justified
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in holding that the accident occurred due to the actionable negligence on the part of the driver of the car.
Reg. Quantum:
The claimant contended that he was aged 27 years and was working as a software engineer. The evidence of PWs.1 and 2 and Ex.P7 and 8 show that soon after the accident the claimant was admitted into Manipal Hospital. He was treated in the said hospital as in-patient from 02.07.2015 till 20.08.2015. The evidence of PW.2 and the above said medical records show that the claimant had suffered following injuries.
“Comminuted Fracture Right Shaft Femur
Fracture both bones Right Leg (Distal Third shaft Tibia and fibula”
The above said records and the oral evidence further show that on 04.07.2015 the claimant underwent following surgeries: “IM nailing right femur + Orif Right Lateral Malleolus + Below Knee Slab Application under General Anesthesia”
PW2 says when he examined the claimant on 07.07.2016 the fractures were completely united. He further deposed that for removal of implants the claimants has to
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undergo another surgery which may require Rs.2,00,000/-. He assessed the disability of the claimant at 47% to the right lower limb and 16% to the whole body. Therefore, the Tribunal rightly accepted the disability of the claimant at 16%.
The other contention of the claimant is that he suffered cognitive disability, therefore he could not continue his services. In support of such contention he examined PW.3 Neuropsychologist of Manipal Hospital. She states that she assessed the claimant on 04.07.2016 in Dhanvantri Hospital Society, Bengaluru. It is not her case that she has examined him in Manipal Hospital. The accident had taken place on 02.07.2015. The alleged assessment is after one year. Though in the chief examination she says that the claimant had impairment in mental speed, sustained attention, working memory, verbal and visual learning and memory, according to her his cognitive disability is 42.86%. In the course of cross examination, she states that to assess the disability she examined only the discharge summary issued by the Manipal Hospital. She also admits that as per those records, the claimant had not suffered any head injury. She states that she does not know if the claimant had taken treatment in Manipal
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Hospital relating to brain. Further she pleads her ignorance to the suggestion that the claimant reads and writes. It is material to note that the claimant had given evidence before the Court and no abnormality was found by the Tribunal during such evidence. If he had cognitive impairment of 40% to 42% how he would be able to recollect and reproduce the previous incidents to PW.3, was not explained. Therefore, the evidence of PW.3 regarding cognitive disability of PW.1 does not inspire the confidence of the Court.
The claimant’s own evidence and the evidence of PW.4 Senior Associate Office Services at Sapient Consulting Pvt. Ltd, Bengaluru, shows that he was working as a soft ware engineer in the said company. PW.1 in his chief examination says that he could not continue his job post accident due to his physical disability. In his chief examination he does not whisper anything about resigning the job or the company terminating his services. None of them produced either the resignation letter of the claimant or the termination letter issued by his employer.
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PW.4 in his cross examination unequivocally admitted that in case of earned leave, claimant gets salary and there is no loss of income. PW.2 says that the fractures were united and except the injury on the right leg the claimant had no other injury. Thus there was no loss of income to the claimant during laid up period also. If the services of the claimant was discontinued either by way of resignation or by way of termination, his accounts would have been settled. PW.1 or PW.4 could have produced such records. Thus as rightly contended by the learned counsel for the Insurer, there was no evidence in proof of loss of future earning. Since the claimant’s job is that of the soft ware engineer which requires the application of intellectual ability and at the most the operation of the key board, it can be said that the fractures in right leg suffered by him as spoken by PW.2 do not cause him any functional disability.
This view of ours is supported by the judgment of the Hon’ble Supreme Court in Raj Kumar vs. Ajay Kumar1and the same is reiterated in Sidram vs. United India Insurance
1 (2011)1 SCC 343
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Co.Ltd2. In para 19 of the judgment in Raj Kumar’s case it is held as follows: “ 19. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” (Emphasis supplied)
2 (2023)3 SCC 439
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Under the aforesaid circumstances, awarding of the compensation on the head of loss of future earnings is unsustainable.
So far as the pain and suffering, as per the evidence of PW.2 the claimant had suffered fractures of two bones in right leg. He was treated as in-patient in Manipal Hospital between 02.07.2015 and 20.08.2015 for a period of 50 days. Page Nos.33 and 34 of Ex.P7 show the course of treatment and the pain and suffering undergone by the claimant and the complications developed during the treatment. The relevant portion of the said record reads as follows: “With Radiological evaluation he was diagnosed to have right shaft femur fracture, right tibial fracture and right malleolar fracture He was admitted in the ward under Dr. R.D. Chakravarthy (Consultant orthopedics) for further management. He was posted for fracture reduction surgery on 03.07.2015. On 03.07.2015, a MET call was initiated for patient being drowsy. He was moved to ICU for further monitoring. Clinically he was drowsy and arousable and was hypoxic on initial evaluation. Within one hour of ICU stay, he had a witnessed generalized tonic clonic seizures and required airway protection with intubation and commenced on controlled mechanical ventilation. His bed side scanning revealed RARV dilatation and extensive bilateral B-lines. A
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possibility of FAT embolism syndrome was considered and he was commenced on neuroprotective measures and lung protective ventilation: His CT brain was normal. On D2 in ICU, his neurological status deteriorated with decerebration and hence, neurology and neuro- Surgery opinion was sought and an MRI brain was performed. This revealed bilateral multiple tiny hyperintense foci on diffusion weighted images in bilateral corona radiate, centrum semiovale and periventricular white matter, likely representing multiple small acute embolic infarcts. This also confirmed clinical suspicion of FES. A detailed discussion with the family was done with respect to proposed need for surgery to prevent further sequele and risk involved during surgery and anticipated prolonged hospitalization and ICU stay with respect to multi organ dysfunction. They consented for the same and he underwent closed reduction and internal fixation of right femur shaft fracture with intra medullary interlocking nail and screws, open reduction and internal fixation of right lateral malleolus fracture with plate and screws and below, knee plaster slab application on 03.07. Post surgery, he was moved back to MICU for continued ventilation and neuroprotective measures. In the next few days, he continued to be decerebrating to painful stimulus. His oxygenation improved over a period of time. Considering encephalopathy for prolonged airway protection, he underwent tracheostomy on 09.07.2015. Subsequent to tracheostomy, he is being weaned off from the ventilator from 12.07.2015. He had secondary Acinectobacter in the ET and Enterobacter in the blood and Pseudomonas and
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Klebsiella in the PUS swab. He underwent debridement of the wound in OT on 14.07.2015. During his stay in ICU, daily review with Ortho and Rehabilitation was done. Currently he is on Colistin and Tigecycline (from 17.07.2015). He was transferred to ward on 17/07/2015 under the care of Dr. Dheeraj (Consultant Rehab Physician) for further care. In the ward he was continued on same antibiotics. He was started on intensive rehabilitation which included Chest physiotherapy, Tracheostomy care, nebulization and suctioning, stretching PROM exercises, functional ability training, and tilt table standing. He developed suture site necrosis for which Dr. Srikanth (Consultant Plastic surgeon) reference was sought. He underwent wound debridement and closure on 27/07/2015. His chest was improving, tracheal secretion reduced. Tracheostomy was downsized on 31/07/2015 and after observation tracheostomy was decannulated on 04/08/2015. Mr. Sunny Joseph (Clinical Neuro psycologist) reference was sought regarding disorientation and his advise was followed. He had complaints of difficulty in voiding. Dr. Deepak Dubey (Consultant Urologist) reference was sought and his advise was followed.
At present he is stable, obeying commands, taking oral feed. Moving all four limbs (Right lower limb slab present). He is being discharged with the following advise.”
The above extract goes to show that due to the accidental injuries the claimant suffered further complications and
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underwent lot of pain and suffering. Therefore, the compensation of Rs.1,00,000/- awarded on the head of pain and suffering is on the lower side. Awarding a sum of Rs.2,00,000/- on the said head meets the ends of justice.
The Tribunal though considered that the claimant had spent Rs.12,71,962/- towards the medical expenses rejected the claim for Rs.8,00,000/- on the ground that the same was reimbursed under the health Insurance claim by the Insurance company. The Hon’ble Supreme Court in Sebastiani Lakra & ors vs. National Insurance Co.Ltd and another3 held that Insurance company reimburses such amount because of its contractual liability and by virtue of the premium paid by the claimant. Therefore such claim cannot be rejected on the ground of reimbursement by the Insurance company. In view of the said judgment the Tribunal ought to have awarded compensation of Rs.12,71,962/- on the head of loss of medical expenses.
The evidence of PW.2, Ex.P7 and 8 the discharge summaries and other medical evidence show that the claimant
3 (2019)17 SCC 465
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had suffered permanent physical disability of 16%. As per the evidence of PW.2 the claimant was not able to climb stairs, walk long distance, sit, stand for long period, squat sit cross legged etc. By such disability naturally he has suffered amenities which the youth of his age, qualification and occupation in the ordinary course would have enjoyed. That is life long deprivement. As observed by the Hon’ble Supreme Court in Pappu Deo Yadav vs. Naresh Kumar4 the Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge’s mind, whenever tasked to adjudge compensation claims. Therefore, the compensation of Rs.2,50,000/- on the head of loss of amenities meets the ends of justice. Future medical expenses awarded is based on the evidence. The claimant has not challenged that.
4 (2022)13 SCC 790
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The claimant was admitted into the hospital for a period of 50 days. Having regard to the nature of injuries, treatment undergone by him and the period of treatment the compensation awarded on the head of diet, attendant charges and conveyance is on the lower side. Therefore, awarding of Rs.50,000/- on that head meets the ends of justice.
Therefore, the just compensation payable to the claimant is as follows: Sl. No. Particulars Award amount in Rs. 1 Pain and sufferings 2,00,000/- 2 Medical expenses 12,71,962/- 3 Diet, attendant charges & conveyance 50,000/- 6 Loss of amenities 2,50,000/- 7 Future medical expenses 1,00,000/-
Total 18,71,962/- rounded off to 18,72,000/-
So far as the interest this claim is not on par with suit for recovery of money based on contractual liability. Thus the Interest Act is not applicable. Therefore, Section 34 of CPC is applicable which speaks of simple interest at 6% p.a. Therefore, rate of interest awarded at 9% p.a. is unjust and has to be reduced to 6%.
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For the aforesaid reasons, the appeal deserves to be allowed in part. Hence the following: ORDER The appeal is allowed in part. The impugned award is modified as follows: a) The claimant is entitled to compensation of Rs.18,72,000/- with interest thereon at 6% p.a. from the date of petition till its realization. b) The first respondent/Insurer shall deposit the said amount, on adjusting the amount already deposited if any, before the Tribunal within four weeks from the date of receipt of copy of this order. c) On such deposit, the Tribunal shall release the same digitally to the claimant on furnishing the required documents. d) Registry shall transmit the amount in deposit, if any, and the TCRs to the Tribunal forthwith.
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JUDGE
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JUDGE akc