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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2021
PRESENT
THE HON’BLE MRS. JUSTICE S. SUJATHA
AND
THE HON’BLE MR. JUSTICE E.S. INDIRESH
MISCELLANEOUS FIRST APPEAL NO.606 OF 2017 (MV) c/w MISCELLANEOUS FIRST APPEAL NO.1654 OF 2017 (MV)
In MFA 606/2017
BETWEEN
The Manager Reliance General Insurance Co Ltd No.3, I Floor, Manandi Plaza St. Marks Road Beside St. Marks Hotel Bangalore-560 001.
Now represented by its Manager Reliance General Insurance Company Limited No.28, V Floor, East wing Centenary Building M G Road Benagaluru-560 001. ...Appellant (By Shri H N Keshava Prashanth, Advocate)
AND
2 1. Mr. D R Sunil Kumar S/o D N Ramegowda Now aged about 36 years R/at No.13, 3rd Cross 4th Main, Maruthi Extension Srirampura Bangalore-560 021.
M/s. The Partner Bharathi Tourist Near Sri Mahalingeshavara Temple Bannanje Post Udupi District-576 101.
The Manager Oriental Insurance Co Ltd R.O.No.44/45, IV Floor Leo Shopping Complex Residency Road Bangalore -560 025.
Mr. Raghuveer Dongerkery S/o Srinivasa Dongerkey M/s Pragathi Tourist Corpotation Near Govt. Junior College Service Bus Stand Udupi-576 101. ….Respondents (By Shri K V Shyamaprasad, Advocate for C/R1; Sri B S Umesh, Advocate for R3; Notice served on R2)
This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 07.11.2016 passed in MVC No.5193 of 2014 on the file of the XVI Additional Judge, Court of Small Causes and MACT, Bangalore, awarding compensation of Rs.49,96,000/- with interest @ 9% per annum from the date of petition till payment.
3 In MFA 1654/2017
BETWEEN
D R Sunil Kumar S/o D N Ramegowda Aged 36 years R/at #13, 3rd Cross 4th Main, Maruthi Extn Srirampura Bengaluru-560 021. ...Appellant (By Shri K V Shyamprasad, Advocate)
AND
M/s. Reliance General Insurance Co. Ltd. No.3, I Floor, Manandi Plaza St. Marks Road Beside St.Marks Hotel Bangalore-560 001. Rep. by its Manager.
M/s. Bharati Tourist R/by one of its partner Near Sri Mahalingeshvara Temple Bananje Post Udupi District-576 101. ….Respondents (By Shri N Keshava Prashanth, Advocate for R1)
This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act, against the judgment and award dated 07.11.2016 passed in MVC No.5193 of 2014 on the file of the XVI Additional Judge, Court of Small Causes, Bangalore, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Miscellaneous First appeals coming on for orders, this day, INDIRESH J., delivered the following:
J U D G M E N T
These appeals are preferred against the judgment and award dated 07th November, 2016 passed in MVC 5193 of 2014 by the Motor Vehicles Accident Claims Tribunal, Bengaluru. MFA 606 of 2017 is filed by the insurance company challenging on the ground of liability and quantum and MFA 1654 of 2017 is filed by the claimant seeking enhancement of compensation.
For the sake of convenience, the parties in this appeal are referred to with their status and rank before the Tribunal.
It is the case of the claimant that on 24th November, 2014 at about 5.15 a.m. the claimant and other passengers were traveling in Pragathi Tourist Bus bearing registration No.KA 20/C-8539 on NH-75 near Bellur Cross and at that time Bharati Tourist Bus bearing registration No.KA-20/C-1293 hit the Pragathi Tourist Bus from behind and due to the said impact, the claimant sustained grievous injuries. It is averred in the claim petition that the claimant was working at Wipro Technology
5 Company Private Limited and on account of the injuries sustained in the accident, he was constrained to stay at home. Hence, the claimant filed MVC 5193 of 2014 before the Tribunal seeking compensation.
Pursuant to the summons issued by the Tribunal, respondent Nos.1 and 3 entered appearance and filed written statement contending that the alleged accident occurred due to the negligence on the part of the driver of the Pragathi Tourist Bus and therefore, sought for absolving liability. Respondent Nos.2 and 4 unrepresented and placed exparte. The Tribunal after considering the pleadings on record formulated the issues for its consideration.
Claimant was examined as PW1 and further examined four witnesses as PW2 to PW4. He produced 31 documents and same were marked as Exs.P1 to P31. Respondent examined two witnesses as RW1 and RW2 and got marked 2 documents as Ex.R1 and R2. The Tribunal, after considering the material on record, by its judgment and award dated 07th November, 2016,
6 awarded compensation of Rs.49,96,000/- with interest at the rate of 9% per annum from the date of petition till the payment.
Being aggrieved by the judgment and award passed by the Tribunal on liability and quantum, insurance company has preferred MFA 606/2017 and claimant has filed MFA 1654 of 2017, seeking enhancement of compensation.
We have heard Sri H.N. Keshava Prashanth, learned counsel appearing for the insurance company and Sri K.V. Shyamaprasada, learned counsel appearing for the claimant.
Learned counsel appearing for the insurance company contended that the Tribunal failed to consider the contribution made by the driver of the offending bus, while answering issue no.1 in the claim petition. He further contended that the Tribunal has not properly evaluated the documents on record, while considering the income of the deceased inter-alia passed an erroneous judgment and award without looking into the documents on record in the right perspective. He further contended that the Tribunal has granted interest at the rate of
7 9% which requires to be on par with the prevailing rate of interest and therefore, sought for interference of this Court.
Per contra, Sri K.V. Shyamaprasada, learned counsel appearing for the claimant argued that the finding recorded by the Tribunal on issue No.1 is just and proper and the same does not call for any interference in this appeal. He further contended that the Tribunal has not properly appreciated the injuries sustained by the claimant and therefore, he submitted that the claimant is entitled for just compensation as per Section 166 of Motor Vehicles Act.
We have carefully considered the submission made by the learned counsel appearing for the parties and perused the impugned judgment and award passed by the Tribunal.
It is not in dispute that the claimants sustained injuries on account of the accident occurred on 24th November, 2014. Perusal of IMV report-Ex.P3 confirms the damage to the front portion of the Bharathi Tourist Bus and to the rear portion of Pragathi Tourist Bus. The testimony of PW1-eyewitness to the said accident, would clearly substantiate the fact that the rear
8 portion of the bus in which the claimant was traveling was damaged. We have also carefully analyzed the police records, particularly, FIR and crime details Form-Exhibit P2 which would substantiate the fact that the finding recorded by the Tribunal on issue No.1 is just and proper.
Insofar as quantum of compensation is concerned, as per wound certificate Exhibits P4 and P26, the claimants sustained the following injuries: 1. Cervical spinal injury with unstable fracture with bilateral facetal dislocation. 2. Anterior vertebral dislocation of C6 and C7 vertebra with associated cord transaction. 3. Paraplegia 4. Urinary track infection 5. Bowel and bladder incontinence 6. Loss of sensation below C7-T1.
The claimant has examined PW2, Senior Executive of WIPRO to prove his occupation and income. Exhibits P18 to P21 and Exhibits P7 to 10 would substantiate the fact that the claimant was working as Executive - Service Delivery at WIPRO
9 Limited on a monthly salary of Rs.22,000/-. Claimant has examined two doctors PW4 and PW5 and the perusal of evidence of these doctors would indicate that the petitioner cannot continue his occupation with the employer. The Doctors have assessed the permanent disability of the claimant at 100% and the claimant’s loss of earning capacity is also 100%. It is also forthcoming in the records that the claimant was examined through Commission by the Tribunal and the claimant has affixed LTM on the claim petition as well as in his affidavit in lieu of examination-in-chief. Though the learned counsel appearing for the insurance company argued that the claimant has not resigned from the job and therefore, he is disentitled from award of compensation under loss of future income, however, careful scrutiny of cross-examination of PW2 indicate that the WIPRO (employer) had not given any salary to the claimant pursuant to the accident. The insurance company failed to elicit in the cross- examination of PW2 with regard to continuance of employment and payment of salary to the claimant subsequent to the accident. In that view of the matter, we do not find any infirmity in the assessment of income by the Tribunal.
On perusal of the award of compensation by the Tribunal, taking into consideration the injury sustained by the claimant, we are of the view that amount of compensation towards pain and suffering, medical expenses, nourishment and conveyance charges, physiotherapy treatment, loss of marital life and future medical and incidental expenses are just and proper. In order to compute the future loss of income, as per the records the salary of the claimant was Rs.22,000/- per month and after deducting the income tax and professional tax, so also applying the multiplier of 16 in terms of the judgment of the Hon’ble Supreme Court in the case of SARLA VERMA AND OTHERS v. DELHI TRANSPORT CORPORATION AND ANOTHER reported in 2009 ACJ 1298 and adding 40% towards future prospects as per the law declared by the Hon’ble Supreme Court in the case of PRANA SETHI, the loss of future income would be Rs.59,13,600/- (Rs.22000/- + 40% x 12 x 16). The award of Rs.22,000/- towards loss of past income and Rs.50,000/- towards loss of life expectancy is the duplication of the compensation awarded and therefore, same is deducted.
11 However, Rs.1,00,000/- towards attendant charges and Rs.1,50,000/- towards loss of amenities and happiness is awarded in this appeal and therefore, in total, the claimant is entitled for Rs.65,72,800/-. Thus, the claimant is entitled for just and reasonable compensation as under:
Sl. No. Head of compensation Amount (in Rs.) 1. Pain and sufferings 1,00,000 2. Medical expenses 2,00,000 3. Nourishment, conveyance charges 50,000 4. Attendant charges 1,00,000 5. Physiotherapy treatment 50,000 7. Future loss of income 30,800X12X16X100% 57,72,800 8. Loss of amenities and happiness 1,50,000 9. Loss of marital life 50,000 11. Future medical and other incidental expenses 1,00,000
Total 65,72,800
We find some force in the submission made by the learned counsel for the insurance company insofar as granting of interest at 9% per annum by the Tribunal is concerned and taking into consideration the prevailing interest rate of Bank, we modify the same holding that the claimant is entitled for interest at the rate
12 of 6% per annum from the date of the petition till the payment. Hence, the following: O R D E R
i) MFA No.606/2017 filed by the insurance company is partly allowed insofar as the rate of interest is modified from 9% to 6% p.a.; ii) MFA No.1654/2017 filed by the claimant is allowed in part; iii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.65,72,800/- (Rupees Sixty five lakh seventy two thousand eight hundred only) as against Rs.49,96,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization; iv) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact;
13 v) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order; vi) The aforesaid compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal; vii) Draw modified award accordingly; viii) The Registry shall transfer the amount in deposit along with the original records to the jurisdictional Tribunal forthwith; ix) All pending I.As. stand disposed of accordingly.
Sd/- JUDGE
Sd/- JUDGE lnn