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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF MARCH, 2020
BEFORE
THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ
M.F.A. NO.176 OF 2013 C/W M.F.A. NO.174 OF 2013 (MV)
IN M.F.A. NO.176 OF 2013:
BETWEEN:
MR. KIRAN @ JOSEPH J. KIRAN S/O LATE K.K. JOSEPH AGE: 38 YEARS, OCC:NIL R/O BOOVENAHALLY ESTATE SIDDAPUR, S.COORG
... APPELLANT
(BY SRI.SURESH M. LATUER, ADVOCATE)
AND:
MR. P.B. SADHAN R/O PATTAMPULLY HOUSE KAIMARAMBU P.O. THRISSUR KERALA-680014
THE NEW INDIA ASSURANCE CO. LTD. ORISON COMPLEX WADAKKANCHERY ROAD KUNNAMKULAM KERALA-680503 ... RESPONDENTS
(BY SRI. P.B. RAJU, ADVOCATE FOR R2; R1- NOTICE DISPENSED WITH)
2 THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.06.2012 PASSED IN MVC NO.61/2008 ON THE FILE OF THE AD-HOC DISTRICT JUDGE, PRESIDING OFFICER, FAST TRACK COURT, KODAGU, MADIKERI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. *****
IN M.F.A. NO.174 OF 2013:
BETWEEN:
MRS. MARY JOSEPH W/O LATE K.K. JOSEPH AGE: 66 YEARS, OCC:NIL R/O BOOVENHULLY ESTATE SIDDAPUR, S.COORG
... APPELLANT
(BY SRI.SURESH M. LATUER, ADVOCATE)
AND:
MR. P.B. SADHAN R/O PATTAMPULLY HOUSE KAIMARAMBU P.O. THRISSUR KERALA-680014
THE NEW INDIA ASSURANCE CO. LTD. ORISON COMPLEX WADAKKANCHERY ROAD KUNNAMKULAM KERALA-680503
MR. KIRAN @ JOSEPH J. KIRAN S/O LATE K.K. JOSEPH AGE: 34 YEARS, OCC:NIL R/O BOOVENHULLY ESTATE SIDDAPUR, S.COORG
MYSORE DISTRICT AGENTS BRANCH
3 NO.371/A, III FLOOR PRESTIGE SHOPPING ARCADE RAMASWAMY CIRCLE MYSORE-570024 ... RESPONDENTS
(BY SRI. P.B. RAJU, ADVOCATE FOR R2; SRI. R. JAIPRAKASH, ADVOCATE FOR R4; R1 & R3 - NOTICE DISPENSED WITH)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.06.2012 PASSED IN MVC NO.60/2008 ON THE FILE OF THE AD-HOC DISTRICT JUDGE, PRESIDING OFFICER, FAST TRACK COURT, KODAGU, MADIKERI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION
*****
THESE APPEALS COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants in both the appeals are before this Court seeking for enhancement of compensation awarded by the FTC, Kodagu in MVC Nos.60 and 61 of 2008 by way of its common judgment dated 30.06.2012.
The appellants were travelling in a Car bearing Registration No.KA-12-N-2342 proceeding from Coorg to Changanassery, Kerala through Kozhikode-Thrissur
4 Route. It is stated that the driver of the car was driving the same on the extreme left side of the road, slowly, carefully and by observing all the rules and regulations of the road.
When they reached Kanippayyoor, a bus bearing Registration No.KL-8-C- 3940 came from the opposite direction driven by its driver in a very high speed in a rash and negligent manner on the wrong side and dashed against the car. Due to this impact, both the appellants sustained severe grievous injuries.
The appellant/Mary Joseph in MFA No.174/2013 in her claim petition has stated that she sustained grievous injuries on her head, face, hands, legs and bleeding injuries all over the body. She was treated as an inpatient from 22.06.2007 to 17.07.2007 in the West Fort High Tech Hospital at Punkunnam, Thrissur. It is alleged that she has spent an amount of Rs.3,00,000/- towards treatment. After discharge, she was advised to take rest and for follow up treatment and she took
5 physiotherapy treatment from 06.08.2007 to 20.10.2007 in Bangalore and spent nearly Rs.1,00,000/-. Due to the accident, she is not able to do any work. She is depending on others for her basic needs. She had appointed an attender to look after her by paying Rs.100/- per day while in hospital and subsequently after discharge, she engaged the service of a nurse by paying Rs.150/- per day. It was contended that the appellant being a coffee planter was engaged in the business of coffee and earning about Rs.12,00,000/- per year.
The appellant/Kiran @ Joseph Kiran in MFA No.176/2013 in his claim petition has contended that in the said accident, he too suffered grievous injuries on his head, face, hands, legs and bleeding injuries all over the body. He took treatment as an inpatient from 22.06.2007 to 23.07.2007 in West Fort High Tech Hospital, Punkunnam, Thrissur and was discharged on 23.07.2007. Thereafter, he took follow up treatment,
6 at Bangalore by spending an amount of Rs.6,00,000/- and took physiotherapy treatment at the residence of Dr.Reddy from 03.09.2007 to 25.10.2007 for which he has spent Rs.2,00,000/-. He being a coffee planter was earning a sum of Rs.10,00,000/- per year. It is contended that on account of the said accident, he has become permanently disabled.
The appellants approached the Tribunal seeking compensation. The Tribunal considering the oral and documentary evidence on record has granted the compensation to each of the appellants as under:
In MFA No.174/2013: Sl.No. Heads of accounts Rupees (Rs.) 1 Pain and sufferings 25,000 2 Medical expenses 30,000 3 Assistant charges during hospitalization period of 16 days at the rate of Rs.100/- per day 1,600 4 Food, nourishment, lodging during hospitalization period of 16 days at the rate of Rs.200/- per day 3,200 5 Loss of earning during the physiotherapy period of two months 9,460 6 Loss of earning during the 2,522
7 hospitalization period of 16 days 7 Assistant charges during the physiotherapy period 6,000 8 Loss of earning due to 15% disability 59,591 9 Loss of happiness and future amenities 5,000 10 Future medical expenses 15,000 11 Travelling expenses & other misc. expenses 5,000
Total 1,62,373
In MFA No.176/2013:
Sl.No. Heads of accounts Rupees (Rs.) 1 Pain and sufferings 25,000 2 Medical expenses 60,000 3 Assistant charges during hospitalization period of 32 days at the rate of Rs.100/- per day 3,200 4 Food, nourishment, lodging during hospitalization period of 32 days at the rate of Rs.200/- per day 6,400 5 Loss of earning during hospitalization period of 32 days 3,200 6 Assistant charges after discharge from the hospital 6,000 7 Loss of earning due to 15% disability 86,400 8 Loss of happiness and future amenities 8,000 9 Future medical expenses 15,000 10 Travelling and other misc. expenses 5,000
Total 2,18,200
8 5. The appellants are before this Court contending that the compensation awarded is on the lower side. The Tribunal has not taken into consideration the income of the appellants in a proper and correct perspective. The Tribunal has only taken into consideration the income from non-agricultural sources and not taken into consideration the income from agricultural sources when in fact both the appellants are agriculturists by profession and depend on agriculture for their livelihood. Thereby, the income considered by the Tribunal is completely incorrect. Therefore, the compensation awarded on that basis is incorrect and too less. It is also contended that there could not have been contributory negligence imposed on the driver of the car in which the appellants were travelling. The finding of the tribunal in this regard is therefore required to be set aside.
Per contra, the learned counsel appearing for the respondent-Insurance Company would contend that the
9 amounts awarded by the Tribunal are just and proper. The compensation amount awarded need not be enhanced. The appellants are not entitled to any such increase in compensation. The income, as reflected in the income tax document has been correctly taken into account.
He further submits that contributory negligence which has been attributed to the appellants is just and proper. The heavier vehicle has been apportioned 65% negligence and the car in which the appellants were traveling has been apportioned 35% negligence and therefore, no fault can be found in regard thereto.
Heard the learned counsel for the appellants and learned counsel for the respondent – Insurance Company and perused the papers.
The appellants in order to establish the business of coffee exports have produced VAT Registration, Partnership Deed, Certificates issued by the
10 Commissioner Tax, Central Sales Tax, etc. In order to establish the income, the appellants have produced Saral forms filed before the Income Tax authorities. The appellants have also produced several certificates issued by various organizations as regards the quality of coffee produced by them from time to time and recognition was also conferred for having grown special and speciality coffee.
MFA No.174/2013:
A perusal of the Saral forms produced by the appellant/Mary Joseph indicates that she was earning a sum of Rs.59,723/- from other sources and a sum of Rs.6,68,000/- from agricultural sources, which is exempted from income tax. Thus, the total income earned by the appellant/Mary Joseph is Rs.7,27,723/- p.a. for the year 2006.
The Tribunal has awarded a sum of Rs.59,591/- towards loss of earning taking into consideration the
11 income of the appellant/Mary Joseph at Rs.56,753/- during the period when the accident occurred. This amount is taken into account on the basis of taxable income. While doing so, I am of the considered opinion that the Tribunal failed to take into consideration the income from the agricultural sources, which is also an income of the appellant, though no tax is liable to be paid thereon in view of exemption provision under the Income Tax Act.
The income of the injured from agricultural sources would have to be taken into consideration for the purpose of determining the loss of earning and it is not permissible to ignore the income arising out of agricultural sources. Thus, I am of the opinion that the Tribunal has erred in only taking into consideration the income from other sources or non agricultural sources and the calculation of compensation in this regard is incorrect. The income tax returns which has been filed in terms of Exs.P125 and P126 have been so filed at an
12 undisputed point of time i.e., at the time of the accident. The income tax returns indicates that she was earning a sum of Rs.59,723/- from other sources and Rs.6,68,000/- from agricultural sources, which though exempted from income tax is nevertheless income earned. Thus, the total income earned by the appellant/Mary Joseph is Rs.7,27,723/- per annum for the year 2006, and it is this amount which ought to have been taken into consideration by the Tribunal.
The treating doctor taking into consideration the injuries that have been suffered by the appellant/Mary Joseph had opined that there was 20% disability to the whole body. However, the Tribunal has taken the disability to be 15%. There are no reasons forthcoming as to why and for what reasons the same has been reduced. The nature of injuries which have been suffered by the appellant/Mary Joseph, the fact that the appellant was hospitalized from 22.06.2007 to 17.07.2007, she was operated and underwent further
13 treatment at Bangalore are not in dispute. Hence, the treatment, certification of the doctor in this regard ought to have been considered by the Tribunal and not in the manner done. The appellant/Mary Joseph being aged 62 years as on the date of the accident, the appropriate multiplier which applicable is ‘7’. Hence, the compensation which is required to be awarded to the appellant on account of loss of earning due to disability would be Rs. 7,27,723/- x 7 x 20/100 = 10,18,812/-.
In terms of the decision of the Hon’ble Apex Court in the case of SARLA VERMA vs. DELHI TRANSPORT CORPORATION reported in AIR 2009 SC 3104, the compensation awarded on other heads of account are also meager. The compensation awarded towards pain and sufferings is enhanced from Rs.25,000/- to Rs.50,000/-.
14 14. The appellant had produced medical bills and proof thereof in terms of Exs.P27 to P83 amounting to Rs.57,227/-. The reduction of the same to Rs.30,000/- by the Tribunal is not proper. The appellant would be entitled to entire expenses on this account amounting to Rs.57,227/-.
The Tribunal has awarded a sum of Rs.1,600/- towards assistant charges during hospitalization for a period of 16 days. However, the record shows that the appellant was treated an an inpatient from 22.06.2007 to 17.07.2007 i..e, he was hospitalized for a period of 25 days. Hence, the compensation amount is enhanced to Rs.2,500/-.
The Tribunal has awarded a sum of Rs.3,200/- towards food, nourishment, lodging during hospitalization. The same is enhanced to Rs.6,400/-.
The Tribunal considering the income of the appellant/Mary Joseph as Rs.56,753/- p.a. has
15 awarded a sum of Rs.9,460/- towards loss of earning during the physiotherapy. However, as stated earlier, there is a mistake in the calculation of annual income. The annual income of the appellant after taking into consideration the income from agricultural sources is Rs.7,27,723/- giving a monthly income of Rs.60,643/-. Since the laid up period being two months, the compensation liable to be paid on this head of account is Rs.1,21,287/- rounded off to Rs.1,21,300/-.
Similarly, the Tribunal has awarded a sum of Rs.2,522/- towards loss of earning during hospitalization for a period of 25 days. The same is enhanced to Rs.1,00,000/-.
The Tribunal has awarded a sum of Rs.6,000/- towards assistant charges, post discharge . The same is enhanced to Rs.15,000/-.
The Tribunal has awarded a sum of Rs.5,000/- towards loss of happiness and future amenities. I am of the
16 considered opinion that the same needs to be enhanced to Rs.25,000/- considering the age of the appellant and the lifestyle, the same is accustomed to.
The Tribunal has awarded a sum of Rs.15,000/- towards future medical expenses. Considering the nature of injuries sustained by the appellant, I am of the considerered opinion that the same needs to be enhanced to Rs.25,000/-.
The appellant is the permanent resident of Siddapur in Coorg and she had to travel to Thrissur for the purpose of treatment. A sum of Rs.5,000/- awarded by the Tribunal towards travelling expenses and other miscellaneious expenses is on the lower side. The same needs to be enhanced to Rs.30,000/-.
MFA No.176 of 2013:
A perusal of the Saral forms produced by the appellant/Kiran @ Joseph Kiran indicates that he was
17 earning a sum of Rs.29,051/- from other sources and Rs.7,09,280/- from agricultural sources, which is exempted from income tax. Thus, the total income earned by the appellant/Kiran is Rs.7,38,331/- per annum for the year 2006.
The Tribunal on account of loss of earning has awarded a sum of Rs.86,400/- taking into consideration the income of the appellant/Kiran at Rs.29,051/- during the period when the accident occurred. This amount is taken into account on the basis of taxable income. While doing so, I am of the considered opinion that the Tribunal failed to take into consideration the income from the agricultural sources, which is also an income of the appellant, though no tax is liable to be paid thereon in view of exemption provision under the Income Tax Act.
The income of the injured from agricultural sources would have to be taken into consideration for the
18 purpose of determining the loss of earning and it is not permissible to ignore the income arising out of agricultural sources. Thus, I am of the opinion that the Tribunal has erred in only taking into consideration the income from other sources or non agricultural sources and the calculation of compensation in this regard is incorrect. The income tax returns which has been filed in terms of Exs.P292 and P295 have been so filed at an undisputed point of time i.e., at the time of the accident. The income tax returns indicates that he was earning a sum of Rs.29,051/- from other sources and Rs.7,09,280/- from agricultural sources, which though exempted from income tax is nevertheless income earned. Thus, the total income earned by the appellant/Kiran is Rs.7,38,331/- per annum for the year 2006, and it is this amount which ought to have been taken into consideration by the Tribunal.
The treating doctor taking into consideration the injuries that have been suffered by the appellant/Kiran
19 had opined that there was 20% disability to the whole body. However, the Tribunal has taken the disability to be 15%. There are no reasons forthcoming as to why and for what reasons the same has been reduced. The nature of injuries which have been suffered by the appellant and the fact that the appellant was hospitalized from 22.06.2007 to 23.07.2007, he was operated and he underwent further treatment at Bangalore are not in dispute. Hence, the treatment, certification of the doctor in this regard ought to have been considered by the Tribunal and not in the manner done. The appellant being aged 34 years as on the date of the accident, the appropriate multiplier which applicable is ‘16’. Hence, the compensation which is required to be awarded to the appellant on account of loss of earning due to disability would be Rs.7,38,331 x 16 x 20/100 = 23,62,659/-.
In terms of the decision of the Hon’ble Apex Court in the case of SARLA VERMA vs. DELHI TRANSPORT
20 CORPORATION (supra), the compensation awarded on other heads of account are also meager. The Tribunal has awarded Rs.25,000/- towards pain and sufferings. The appellant has undergone surgeries to his right patella and IL/ML nail fermoral right as also dislocation reduced and fixed with ‘K’ wire fixation and extension tendon repaired and POP slab given and discharged with an advise of follow up treatment. Hence, I am of the considererd view that the same needs to be enhanced from Rs.25,000/- to Rs.50,000/-.
The appellant had claimed Rs.6,00,000/- towards treatment and physiotherapy. Though the appellant had produced the medical bills and marked them as Exs.P16 to P253 for the said amount, the Tribunal rejected the same on the ground that the correspondence prescriptions had not been produced. I am of the considered view that the invoices/medical bills produced by the appellant are as regards injuries
21 caused and therefore, requirement of the production of correspondence prescriptions is misplaced. Hence, the appellant is entitled to be reimbursed with the expenses incurred being Rs.3,00,000/- towards treatment and physiotherapy expenses have not been proved.
The Tribunal has awarded a sum of Rs.3,200/- towards assistant charges during hospitalization for a period of 32 days. The same being as claimed does not require any change.
The Tribunal has awarded a sum of Rs.6,400/- towards food, nourishment, lodging during hospitalization of 32 days. The same is enhanced to Rs.12,800/-.
The Tribunal considering the annual income of the appellant to be Rs.29,051/- awarded a sum of Rs.3,200/- towards loss of earning during hospitalization for a period of 32 days. As indicated earlier, the annual income of the appellant is
22 Rs.7,38,331/- and the monthly income of the appellant would comes to Rs.61,527/-. Hence, Rs.65,000/- is awarded towards this said head.
The Tribunal has awarded a sum of Rs.6,000/- towards assistant charges, post discharge. The same is enhanced to Rs.15,000/-.
The Tribunal has awarded a sum of Rs.8,000/- towards loss of happiness and future amenities. Considering that the appellant was hospitalized for a period of 32 days, and has suffered injuries resulting in two surgeries and implants were fixed, I am of the considered view that the same needs to be enhanced to Rs.25,000/-.
The appellant having already incurred a sum of Rs.3,00,000/- on account of medical treatment expenses, the Tribunal has awarded a sum of Rs.15,000/- towards future medical expenses. I am of
23 the considered opinion that the same is ought to have been enhanced to Rs.50,000/-.
The appellant is the permanent resident of Siddapur in Coorg and she has to travel to Thrissur for the purpose of treatment. A sum of Rs.5,000/- awarded by the Tribunal towards travelling expenses and other miscellaneious expenses is on the lower side. The same needs to be enhanced to Rs.30,000/-.
There are no grounds made out by the appellants in both the above matters to interfere with the finding of the Tribunal insofar as negligence attributed to the driver of the Car in which the appellants were travelling. The Car being owned by the appellant/Kiran in MFA No.176/2013 more so on account of the fact that the accident was head on collusion, I am of the considered opinion that the finding of the Tribunal in this regard is proper and correct.
24 37. In the present case, both the vehicles are covered by insurance policies as held by the Tribunal. The apportionment of the negligence arrived at is only for the purpose of apportioning the payment required to be made by the respective Insurance Companies of the respective vehicles. Hence, 65% of the amount as awarded to both the appellants is to be paid by the insurer of the bus viz., New India Assurance Co. Ltd. and 35% of the amount as awarded to both the appellants is to be paid by the insurer of the car. The finding on this aspect by the Tribunal remains undisturbed and unaltered.
In view of the above, the comparative table of the compensation awarded by the Tribunal and awarded by this Court are as under:-
25 In MFA No.174/2013: Sl. No Heads of accounts Compensation awarded by the Tribunal Compensation awarded by this Court Enhanced compensation 1 Pain and sufferings 25,000 50,000 25,000 2 Medical expenses 30,000 57,227 27,227 3 Assistant charges during hospitalizatio n period of 16 days at the rate of Rs.100/- per day 1,600 2,500 900 4 Food, nourishment, lodging during hospitalizatio n period of 16 days at the rate of Rs.200/- per day 3,200 6,400 3,200 5 Loss of earning during the physiotherapy period of two months 9,460 1,21,300 1,11,840 6 Loss of earning during the hospitalizatio n period of 16 days 2,522 1,00,000 97,478 7 Assistant charges during the physiotherapy 6,000 15,000 9,000
26 period 8 Loss of earning due to 15% disability 59,591 10,18,812 9,59,221 9 Loss of happiness and future amenities 5,000 25,000 20,000 10 Future medical expenses 15,000 25,000 10,000 11 Travelling expenses & other misc. expenses 5,000 30,000 25,000
Total 1,62,373 14,51,239 12,888,66
In MFA No.176/2013: Sl. No Heads of accounts Compensation awarded by the Tribunal Compensation awarded by this Court Enhanced compensation 1 Pain and sufferings 25,000 50,000 25,000 2 Medical expenses 60,000 3,00,000 2,40,000 3 Assistant charges during hospitalizatio n period of 32 days at the rate of Rs.100/- per day 3,200 3,200 - 4 Food, nourishment, lodging during hospitalizatio 6,400 12,800 6,400
27 n period of 32 days at the rate of Rs.200/- per day 5 Loss of earning during hospitalizatio n period of 32 days 3,200 65,000 61,800 6 Assistant charges after discharge from the hospital 6,000 15,000 9,000 7 Loss of earning due to 15% disability 86,400 23,62,659 22,76,259 8 Loss of happiness and future amenities 8,000 25,000 17,000 9 Future medical expenses 15,000 50,000 35,000 10 Travelling and other misc. expenses 5,000 30,000 25,000
Total 2,18,200 29,13,659 26,95,459
Accordingly, I pass the following: ORDER i) Appeals are allowed in part.
28 ii) The common judgment of Fast Track Court, Kodagu at Madikeri in MVC Nos.60 and 61 of 2008 dated 30.06.2012 is hereby modified. iii) The appellant/Mary Joseph in MFA No.174/2013 is entitled to enhanced compensation of Rs.12,88,866/- along with interest @ 6% p.a. from the date of petition till the date of realization. iv) The appellant/Kiran @ Joseph Kiran in MFA No.176/2013 is entitled to enhanced compensation of Rs.26,95,459/- along with interest @ 6% p.a. from the date of petition till the date of realization. v) Rest of the terms and conditions of the order of the Tribunal remained unaltered.
Sd/- JUDGE Prs*