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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
M.F.A.No.6622/2016 (MV) c/w M.F.A.Crob.No.65/2018
In M.F.A.No.6622/2016: Between:
M/s ICICI Lombard General Insurance Company Ltd, SVR Complex, No.89, 2nd floor, Hosur Main Road, Madivala, Koramangala, Bengaluru-560068. Represented by Branch Manager, Now represented by it Legal Manager, M/s ICICI Lombard GIC Ltd., Regional Office, The Estate, 9th Floor, Dickenson Road, M.G. Road, Bangalore – 42.
... Appellant
(By Sri. B.C. Shivanne Gowda, Advocate)
And:
S.M. Vinayaka
S/o Muneshwar,
Now aged about 41 years,
R/at No.461, 14th Main Road,
S.B.M. Colony, BSK 1st Stage,
Bangaluru – 85.
Parasuraman.B
S/o Basavaraj.P,
Major,
R/at No.116, 4th Cross,
2nd Block, Aksahyanagar,
Kowdenahalli New Extn.,
R.M. Nagar,
Bangaluru – 16. ... Respondents
(By Smt. P.V. Kalpana, Advocate for R-1; Notice to R-2 is dispensed with)
This MFA is filed under Section 173(1) of MV ACT against the judgment and award dated 15.04.2016 passed in MVC NO.971/2014 on the file of the 23rd Additional Small Causes Judge, 21st ACMM, MACT, Court of Small Causes, Bengaluru, awarding a compensation of Rs.12,43,807/- with interest @ 6% P.A. from the date of petition till the date of depositing the amount.
In M.F.A.Crob.No.65/2018: Between:
Mr. S.M. Vinayaka S/o Muneshwar, Aged about 43 years, R/at No.461, 14th Main Road, S.B.M. Colony, BSK 1st Stage, Bangalore - 560 022. ... Cross Objector
(By Smt. Kalpana P.V., Advocate)
3 And:
Sri. Parasuraman
S/o Basavaraj.P,
Major,
R/at No.116, 4th Cross,
2nd Block, Akshyanagar,
Kowdenahalli New Extn.,
R.M. Nagar,
Bangalore – 560 016.
The Manager M/s ICICI Lombard General Insurance Co. Ltd, SVR Complex, No.89, 2nd Floor, Hosur Road, Madiwala, Bangalore – 560 038. ... Respondents
(By Sri. B.C. Shivanne Gowda, Advocate for R-2; Notice to R-1 is dispensed with)
This MFA Crob in MFA No. 6622/2016 is filed under Order XLI Rule 22 of the CPC against the judgment and award dated 15.04.2016 passed in MVC No.971/2014 on the file of the XXI A.C.M.M. And XXIII Additional Small Causes Judge, Bengaluru, Motor Accident Claims Tribunal, Court of Small Causes, Bengaluru, allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA c/w MFA. Crob. coming on for further hearing, this day, the Court delivered the following:
4 J U D G M E N T
Though the matters are posted for admission, with the consent of both sides, they are taken up for final disposal.
The parties are referred to as per their ranking before the court below, for the purpose of convenience.
M.F.A.No.6622/2016 has been filed by the insurer challenging the order passed in MVC. No.971/2014 dated 15.4.2016 whereby the Tribunal has awarded the compensation of Rs.12,43,807/- along with interest at 6% per annum from the date of the petition till the date of depositing the amount and held respondent Nos.1 and 2 as jointly and severally liable to pay the compensation.
MFA.Crob.65/18 has been filed by the claimants seeking for enhancement of compensation amount that has been awarded by the Tribunal.
5 5. The petitioner has averred that on 23.12.2013 at about 1.00 p.m., when he was riding his Activa Honda bearing Registration No.KA-05-EZ-3623 waiting at traffic signal near Apsara Theater on K.R. Road, Bengaluru, a Tata Ace vehicle bearing Registration No.KA/53/B/3104 being driven in a rash and negligent manner, collided with the petitioner’s vehicle thereby the petitioner sustained injuries and had undertaken treatment as an inpatient for treatment to various injuries including fracture of left hip. The Tribunal, after considering the evidence and the documents marked as Exs.P.1 to P.13, has passed the award granting compensation of Rs.12,43,807/- to be paid with interest.
The insurer, while filing the appeal, has contended as follows: Point No.1: The calculation of the medical bills was faulty, as there is certain discrepancies in so far as
6 the medical bills have been taken into account twice and certain amounts, and hence duplication requires to be corrected. Since the compensation granted under the head of ‘medical expenses’ amounting to Rs.5,61,807/- was incorrect, it was contended that an amount of Rs.1,48,175/- which was sought as charges for implant was required to be excluded, as the same was included in other bills while making the claim, and the same was granted.
Point No.2: The Tribunal while awarding the compensation under the head, ‘loss of future income’, considering the disability to the whole body as 50% and awarding compensation on that basis, was illegal in so far as the evidence of the Doctor as per the Disability Certificate - Ex.P.12 and other documents would indicate that the disability to the lower limb was evaluated at 50% and disability to the whole body was taken as 16%.
7 Point No.3: The third contention that was advanced by the appellant was that, on an earlier occasion, the claimant had suffered injury as regards the same limb which is borne out from the discharge summary-Ex.P.6. In Ex.P.6, under the column ‘past history’, it is clearly mentioned that “Had RTA and underwent left hip surgery in 1998”. It is contended that the present injury was on the same portion of the body i.e., left hip and hence, it is contended that awarding of compensation by the Tribunal as regards the said injury to the left hip would amount to duplication. It is also contended that there was material on record to indicate that the claim was preferred with respect to the previous injury and hence awarding of compensation once again on this ground was illegal and ought not to have been awarded. Accordingly, the compensation awarded under the heads, ‘loss of amenities’ and ‘loss of future income’ has to be scaled down.
8 7. The counsel for the claimant-respondent in MFA.No.6622/2016, however, fairly asserts that as regards the claim under the head ‘medical bills’, there appears to be a calculation error which is noticed from the perusal of the bills produced and states that the bills produced are not duplicated and where there is a mathematical correction required, the same can be considered.
As regards the question of disability being assessed by the doctor and the Tribunal awarding compensation by construing the disability to the extent of 50%, the same is sought to be justified by contending that it is not merely the evidence of the Doctor but, on the basis of evidence, the functional disability needs to be taken into account. The counsel for the claimant relies on various judgments to support the contention that functional disability would be a determining factor to be taken by the Tribunal to award just and
9 appropriate compensation. The Tribunal ought to take note of the medical evidence available on record and asses functional disability in the light of the nature of work.
Adverting to the contention that claim had been preferred previously as regards the disability suffered to the left hip during the previous road traffic accident, in the present proceedings, the compensation is again being claimed for ‘future loss of income,’ the counsel for the respondent-claimant states that the insurer has not discharged his liability and even otherwise, the material on record does not, in any way, indicate that there is duplication of claim.
After having heard the counsel for both parties at length, the contentions are considered as below: The question as regards claim on the basis of medical bills has to be re-evaluated once again. After perusing the medical bills that have been produced and
10 though the claim accepted by the Tribunal was to an amount of Rs.5,61,807/-, on perusal of the list annexed prior to marking of Ex.P.7 series which are the medical bills, it is clear that the bill at Sl.No.48 dated 14.1.2014 for Rs.1,12,173/-, the bill at Sl.No.47 dated 15.1.2014 for Rs.36,000/-, the bill at Sl.No.42 dated 28.12.2013 for Rs.30,000/- and the bill at Sl.No.40 dated 27.12.2015 of Rs.600/- have already been included in the final bill dated 27.1.2014 and hence, the same which were sought to be claimed on the basis of individual bills amounts to duplication and has to be excluded. Hence, the bills amounting to Rs.1,78,773/- has to be excluded. Even that were to be so, the amount that was paid under the head of ‘medical expenses’ would be Rs.3,83,034/-.
Adverting to the contention that the disability to the whole body taken by the Tribunal at 50% was on a higher side in so far as disability to the particular
11 body was assessed at 50%, the question as to the assessment of disability by the doctor and the question of functional disability suffered, requires to be determined. The doctor, in his examination-in-chief as PW.2, has filed affidavit dated 22.12.2015 and has observed at page No.2, the different degrees of disability and finally records that there is a total permanent disability of 50%. According to the established procedure and that the certificates given by him are not reflective of true facts, but in the evidence that has been led by the claimant, there is an averment at para 6 of the affidavit that there is difficulty to walk properly and there is a limp, difficulty to climb stairs, drive vehicles, to sit or squat and lift heavy objects.
Ex.P.12 is a certificate, which states that there is disability of 50% to the limb. The counsel for the respondent has relied on the judgment reported in ILR 15 KAR 1040 in the case of M/s. Royal Sundaram
12 Alliance Insurance co. Ltd., Chennai vs. Y. Amoga Varsha and Another wherein, at para 11 it is seen that the Court reassessed the disability at 100% to the whole body though the Tribunal had assessed the disability at 80%, relying upon the evidence put forth by the doctor who had opined disability at 80%. Hence, it is contended that the Tribunal had awarded just compensation by taking note of the disability which depends on the facts and circumstances of each case and hence, it cannot be said that the disability as assessed by the doctor and the disability that the Tribunal could assess, ought to be one and the same.
The counsel has also relied on the judgment of this Court in the case of K.Narasimha Murthy vs. The Manager, M/s. Oriental Insurance Co. Ltd., Bengaluru and Another reported in AIR 2004 KAR 2471, in particular, paras-41, 43 and 54 have been relied upon and argument is advanced that it is not only the extent
13 of permanent disability as assessed by the doctor, but the Tribunal should take into account the functional disability while assessing the loss of earning capacity.
The Court in the aforesaid judgment had observed as follows: “41. In an accident, if a person loses a limb or eye or sustains an injury, the Court while computing damages for the loss of organs or physical injury does not value a limb or eye in isolation, but only values totality of the harm which loss has entailed the ‘loss of amenities’ of life and infliction of pain and suffering, the loss of the good things of life, joys of life and the positive infliction of pain and distress”. It is observed in the said judgment at paragraph 43 that the Court ought to form an opinion from the evidence and probabilities in the case, of the nature and the extent of loss and while estimating the loss of earnings, the Court would have to take into account
14 what the claimant would have earned if the accident had not occurred at all, and allowing of any future increase or decrease in the rate of earnings, award compensation.
The Court has observed in the facts of that case that 100% permanent functional disabilities had occurred and on that basis proceeded to quantify the financial loss of interest.
The appellant relies on the judgment of the Andhra Pradesh High Court in the case of National Insurance Co. Ltd., Hyderabad vs. M.Sham Prasad and another, reported in 2005 SCC online AP 579 to contend that the assumption of his capacity cannot be done merely on the basis of evidence of medical fitness and the Tribunal must take note of the medical evidence as presented before the Court which may not necessarily indicate the total physical incapacity and it is for the
15 Tribunal to assess the loss of earning capacity having regard to the medical evidence on record. The evidence on record is taken note of in considering the nature of injury and is to be inferred that the claimant in the light of the disability as indicated by the doctor who has examined has suffered impairment in his ability to work. Though the doctor and the witness have been cross examined as regards the said aspects, taking note of the nature of injuries, the inference as regards disability that has been made by the Tribunal does not call interference.
Reliance has been placed by the appellant/insurer on K.B.Sathish Murthy
Vs. K.B.Phaneendra and others, reported in LAWS (KAR) 2015 (3) 259 wherein while considering that there “…. is malunion of fracture medical cuneiform bone right foot, moderate stiffness of right ankle joint and severe stiffness of right mid tarsal and subtalar joints
16 and assessed the functional disability at 48% towards right lower limb and opined that the appellant cannot walk long distances and cannot stand for long duration and cannot squat. 1/3rd of 48% disability comes to 16% whole body disability.”
It is contended that in the present case also the nature of injury is the same, however, it is to be noted that the nature of injury is not the only determinative factor and the functional disability is a matter that differs from case to case.
In the present case, taking note of the nature of the work that would involve for a tailor, functional disability taken by the Tribunal cannot be said to be incorrect.
Coming to the last contention raised by the insurer that the injury to the left hip was already the subject matter of previous accident and hence the
17 compensation with respect to the injury to the left hip that has again occurred could not be subject matter of award of compensation once again has to be dealt with by evaluating the nature of evidence that has been produced and as to whether the burden placed shifts on the insurer has been discharged so as to warrant disallowance of compensation.
The question of injury to the left hip, initially a grievous injury, which is borne out from the discharge summary Ex.P.6 does record that there was a road traffic accident earlier and the claimant had undergone a left hip surgery in 1998. While examining PW.2 who is the Doctor, the insurer in his cross examination, elicits a response from the doctor who, no doubt admits that there is a fresh wound at the same place where the earlier wound had occurred, but has stated during the cross examination that records relating to the earlier injury could not be procured as it relates to incident
18 that has occurred quite sometime earlier. The witness has deposed that summons was taken out to summon the relevant records relating to the earlier incident. However, the Doctor while deposing states that despite averments made, the documents relating to the earlier incident could not be procured. To disentitle the compensation by taking note of the contention of the insurer, it can only be said that material on record is not sufficient to establish that claimant has obtained benefit of award for loss of future income on an earlier point of time, disentitling the claimant for compensation under the said head.
Re-Cross objection by claimant:
As regards the cross objection that has been filed by the claimant in M.F.A. Crob. No.65/2018, it was contended that an additional amount of Rs.60,000/- ought to have awarded under the head of pain and suffering, that under the head of conveyance,
19 nourishment and attendant charges a sum of only Rs.10,000/- has been awarded. While calculating the loss of future income, the Tribunal has taken the income of the petitioner only at Rs.6000/- per month which is contrary to the evidence of income as demonstrated by the income tax returns and it is further contended that the amount which is awarded for permanent disability is also insufficient and is on the lower side.
There is substance in the contention that the monthly income could have been taken as Rs.8,000/- per month instead of what the Tribunal had taken as Rs.6,000/-. Taking judicial notice of the wages that has been adopted as per the Lok Adalath guidelines which is Rs.8,000/-, the compensation will have to be reworked by taking the monthly income as Rs.8,000/- and if so taken, the compensation on the ground of loss of future
20 income would come to Rs.7,20,000/- instead of Rs.5,40,000/- that has been awarded earlier.
In the light of the above, the appeal and the cross objections are disposed of as follows:
(i) The compensation under the head medical expenses will have to be taken as Rs.3,83,034/-;
(ii) The compensation awarded under the head, ‘loss of future income’ would be Rs.7,20,000/-;
(iii) The compensation under the head conveyance and attendant charges is reduced by Rs.1,227/- such that the compensation on the board which has been awarded by the Tribunal. Vide order dated 11.6.2018, the petitioner (cross objector) is not entitled for interest on the amount awarded for the delayed period of 656 days in preferring the cross objection.
In the light of the above, the appeal and the cross appeal are disposed of.
21 The amount in deposit has to be transmitted to the Tribunal with a direction that the amount be released in terms of the award.
SD/- JUDGE
RS/* ct:am