THE PR. COMMISSIONER OF vs. M/S TEXCO HINDUSTHAN

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11TH DAY OF NOVEMBER, 2020

PRESENT

THE HON'BLE MRS. JUSTICE S.SUJATHA

AND

THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

MFA.NO.331 OF 2017(MV-I) C/W MFA.NO.235 OF 2017(MV-I)

IN MFA.NO.331 OF 2017

BETWEEN:

THE MANAGER, RELIANCE GENERAL INSURANCE COMPANY LTD S M TOWERS, II FLOOR, 11TH MAIN ROAD III BLOCK, JAYANAGAR BANGALORE-560 011

ASLO AT RELIANCE GENERAL INS. CO. LTD NO.28, 5TH FLOOR, CENTENARY BUILDING M G ROAD, BENGALURU-560 001 NOW REPRESENTED BY MANAGER LEGAL

....APPELLANT (BY SMT. PADMA S UTTUR, ADVOCATE FOR SRI. ASHOK N PATIL, ADVOCATE)

AND:

1 . SRI SUBBANNACHARI

S/O SHEKHAR AGED ABOUT 48 YEARS R/O NO.10, MAHALIGESWARA SLUM LAKKASANDRA BENGALURU-560 002

2 . SRI B S MANJUNATH S/O LATE N R SOMASHEKHAR NO.11/1, S B ROAD V V PURAM BENGALURU-560 004

ALSO AT 12/11 8TH MAIN, 1ST CROSS OUTTHARMARAM COLLEGE BANGALORE SOUTH BANGALORE

….RESPONDENTS

(BY SRI. M.H. PRAKASH, ADVOCATE FOR C/R1 V/O DATED 18.02.2019, NOTICE TO R2 IS HELD SUFFICIENT)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 18.11.2016 PASSED IN MVC NO.2088/2015 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, AWARDING COMPENSATION OF RS.69,00,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

IN MFA.NO.235 OF 2017

BETWEEN:

SUBBANNACHARI

S/O SHEKAR, AGED ABOUT 48 YEARS R/A NO.10, MAHALINGESWARA SLUM LAKKASANDRA BANGALORE - 560 030

....APPELLANT (BY SRI. M.H. PRAKASH, ADVOCATE)

AND:

1 . RELIANCE GEN. INS. CO. LTD. S.M.TOWERS, 2ND FLOOR 11TH MAIN, 3RD BLOCK JAYANAGAR, BANGALORE - 560 011 BY ITS MANAGER

2 . B.S. MANJUNATH S/O LATE N.R.SOMASHEKHAR NO.11/1, SB ROAD VV PURAM, BANGALORE - 04

ALSO AT NO.12/11 8TH MAIN, 1ST CROSS OUTTHARMARAM COLLEGE BANGALORE SOUTH BANGALORE

….RESPONDENTS

(BY SRI. PADMA S UTTUR, ADVOCATE FOR SRI. ASHOK N PATIL, ADVOCATE FOR R1 V/O DATED 18.02.2019, NOTICE TO R2 IS HELD SUFFICIENT)

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 18.11.2016 PASSED IN MVC NO.2088/2015 ON THE FILE OF THE MEMBER, PRINCIPAL MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR

COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THESE APPEALS COMING ON FOR FURTHER/CONTINUATION OF ARGUMENTS THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:

JUDGMENT

These appeals are directed against the impugned judgment and award dated 18.11.2016 passed in MVC.No.2088/2015 by the Member, Principal MACT, Bengaluru. The Insurance Company has preferred appeal in MFA.No.331/2017 challenging the mode of the accident, involvement of the bus in the accident in question and also the quantum whereas the claimants have preferred the appeal seeking enhancement.

The claimants filed a claim petition contending that on 31.12.2014 at about 2.39 p.m. when he was proceeding to his residence on his motor bike bearing Regn.No.30-J-6489 on NH.7, Hosur Road, Near Beretena Agrahara Salarpuria Apartments, on service road leading to Bengaluru City, at that time, the driver of the offending bus bearing Regn.No.KA-01- C-8767 came from opposite direction in a rash and negligent manner and dashed against the motor cycle on which the claimant was proceeding. On account of the impact, the claimant sustained grievous injuries and he was immediately shifted to Blossom Hospital, Bommanahalli, Bengaluru, where he was given first aid and thereafter shifted to Abhaya Hospital wherein he was treated as an inpatient from 31.12.2014 to 02.01.2015 and thereafter he was shifted to Baptist Hospital, Hebbal, wherein he has taken treatment from 3.1.2015 to 18.3.2015.The claimants have contended that he was working as a BMTC driver and for the month of December

2015 he has drawn monthly salary of Rs.25,584.96 paise. It is specifically averred in the claim petition that he has failed to report to duty and as such has lost employment on account of the injuries sustained in the above said accident.

The claimants further contended that he was hardly aged 47 years and on account of injuries sustained in the accident, he is suffering from neurolgocial disability at 100%. Hence, claimed compensation of Rs.1,10,00,000/-.

On receipt of notice, the second respondent-Insurance Company contested the proceedings by filing objections. The second respondent-Insurance Company has stoutly denied the entire averments made in the claim petition and has disputed the occurrence and mode of accident and also involvement of the vehicle bearing No.KA-01-C-8767 in the accident.

Insofar as compensation is concerned, the second respondent-Insurance Company has seriously disputed the quantum claimed in the claim petition by alleging that the same is excessive and exorbitant. On these set of defence,

the second respondent-Insurance Company has sought for dismissal of the claim petition.

Based on pleadings, the Tribunal framed the following issues:

"1. Whether the petitioner proves that he sustained grievous injuries in a Motor Vehicle Accident that occurred on 31.12.2014 at about 14.39 p.m, at NH, Hosur Road, near Salarpuria Symphony Apartment, towards Bangalore, within the jurisdiction of Electronic City Traffic Police Station on account of rash and negligent driving of the Bus bearing registration No.KA-01-C-8767 by its driver?

The claimant in support of his contention has examined himself as P.W.1 and four witnesses as P.Ws.2 to 5. To corroborate ocular evidence and pleadings, the claimant has also relied on documentary evidence Ex.P1 to 18. The second respondent has relied on ocular evidence of five witnesses as R.Ws.1 to 5 and got marked Exs.R1 to 10.

The Tribunal after assessing the oral and documentary evidence has answered issue No.1 in the affirmative holding that the claimant has established that he sustained injuries in road traffic accident on account of rash and negligent driving by the driver of the offending bus bearing Regn.No.KA-01-C- 8767 and accordingly answered Issue No.1 in the affirmative and Issue No.2 in the negative.

While determining compensation, the Tribunal has awarded a sum of Rs.54,02,000/- towards loss of earning on account of permanent disability, Rs.60,000/- towards pain and suffering, Rs.11,00,000/- towards medical expenses, Rs.75,000/- towards food and nourishment and etc., Rs.50,000/- towards loss of amenities and Rs.2,13,000/- towards physiotherapy expenses. Thus, in all, the Tribunal has awarded Rs.69 lakhs with interest at the rate of 9% p.a. from the date of claim petition till its realisation.

finding recorded by the Tribunal on Issue Nos.1 and 2 is palpably erroneous and contrary to the clinching evidence on record. Learned counsel by relying on Ex.R10 would submit that claimant was brought in an ambulance from Hosur Road with alleged RTA near Electronic city at about 3.00 p.m. on 31.12.2014 and there is no reference to the involvement of the offending bus. Further, relying on Ex.R10 the learned counsel would submit that it is a self fall. These material aspects have been lost sight by the Tribunal while examining Issue Nos.1 and 2. She would further submit that the Blossom Multi specialty Hospital ought to have registered MLC, if at all the claimant was brought to the hospital with the history of RTA on account of involvement of the bus in question. She would heavily rely on the case sheet and MLC wherein the doctors have mentioned the history as self fall.

Insofar as quantum is concerned, she would submit that the Tribunal was not justified in taking 100% disability and further erred in adding 50% towards future prospects. Further,

it is submitted that there is absolutely no evidence forthcoming to establish that the claimant was terminated from service. On these set of grounds, learned counsel appearing for the Insurance Company would seek indulgence of this Court to re-appreciate the clinching rebuttal evidence and allow this appeal.

suffered injuries on account of collision with the bus. There is a reference that the claimant was hit by the bus. The very authorities have made one more entry in the case sheet at 6.15 p.m. on the same day where there is a reference that the claimant had a fall from the two wheeler. Learned counsel appearing for the claimant by taking this Court to these two entries would submit that the entry at the first instance at 5.35 p.m. clearly shows that claimant was hit by a bus and this material aspect would clinch the issue. The learned counsel further takes this Court to the defence set up by the Insurance Company. By relying on Para 5 of the written statement he would submit to this Court that Respondent No.2-Insurance Company in unequivocal terms has taken a contention that it is the claimant who was responsible for the accident and on account or rash and negligent act he has dashed against the bus by referring to IMV report and spot mahazar.

Having considered the rival contentions, the following points would arise for consideration:

"1.Whether the finding of the Tribunal that the claimant has sustained grievous injuries on account of rash and negligent driving of the bus is erroneous and suffers from infirmities?

i)AIR 1995 SC 755 (R.D. Hattangadi .vs. Pest Control

India Private Limited)

ii) 2014 AIR SCW 1236(Sanjay Kumar .vs. Ashok Kumar

and another)

iii)AIR 2019 SC 3128 (Parminder Singh .vs. New India

Assurance Company)

iv)2020(0) Supreme(SC) 548 (Pappu Deo Yadav .vs.

Naresh Kumar and others)

The claimant is seeking enhancement of compensation and has taken a specific contention that he suffered grievous injuries in the road traffic accident on account of rash and negligent driving of the driver of the offending bus. To establish the negligence on the part of the driver, the claimant has relied on the FIR as per Ex.P1 and copy of sketch as per

Ex.P2 and copy of the spot sketch as per Ex.P3, IMV report as per Ex.P4 and charge sheet as per Ex.P6. The medical evidence on record indicates that claimant has taken first aid at Blossom Hospital, Bommanahalli, Bengaluru, where he was given First Aid Treatment. From there he was shifted to Abhaya Hospital, where he took treatment as inpatient from 31.12.2014 to 2.1.2015. From the records it is borne out that from Abhaya Hospital he was shifted to Baptist Hospital, Hebbal, Bengalur, where he took treatment from 3.1.2015 to 18.3.2015. It is forthcoming from the records that the claimant was in coma for the entire period from 31.12.2014 to 18.3.2015. The Insurance Company has not at all raised the plea in the written statement that the bus was falsely implicated. However, during trial the Insurance Company has raised the plea of false implication of the bus and the same is found in the ocular evidence of R.W.4, who is the Legal Manager of the Insurance Company. At para 3 of the affidavit he has stated that the blossom hospital authorities have

intentionally avoided to provide MLC to the Insurance Company. He has also stated that a false complaint is filed before the jurisdictional police and the police have filed the charge sheet against the first respondent-owner of the bus bearing Regn.No.KA-01-C-8767. Learned counsel appearing for the Insurance Company relying on some discrepancies in the medical records has tried to substantiate the defence raised by the Insurance Company during trial.

Repelling these allegations, the learned counsel for the claimant has submitted that the claimant was only given first aid at Blossom Hospital and in that view of the matter, much credence cannot be given to the MLC register. He would submit to this Court that claimant has undergone treatment at Baptist Hospital and the medical records clearly indicate that claimant sustained injuries on account of collision between the bus and the bike on which the claimant was proceeding. The entry in the MLC records pertaining to Baptist Hospital which is at Page 367 of the trial Court records would clinch the issue.

The plea of false implication is a serious allegation and if such an allegation is made, the Insurance Company is required to produce cogent and clinching evidence on record. The Insurance Company having failed to take such a plea in the written statement in the first instance, the said defence raised during trial cannot be looked into.

We have meticulously examined the police records. The FIR as per Ex.P1 and copy of sketch as per Ex.P2 and copy of the spot sketch as per Ex.P3, and charge sheet as per Ex.P6 would probabalise the contentions raised by the claimants. The Tribunal in the absence of rebuttal evidence has rightly taken a holistic view and has answered issue No.1 in the affirmative holding that the claimant has established that he suffered injuries due to the rash and negligent driving of the driver of the bus. The said finding is based on legal evidence adduced by claimants. In the absence of rebuttal evidence by the Insurance Company, the reliance placed by the Tribunal on FIR and charge sheet cannot be faulted, as the documents

indicate the complicity of the driver of the offending bus. The FIR and charge sheet coupled with the evidence on record would establish the occurrence of the accident and also the negligence of the driver of the offending bus. It is a trite that proof placed by the claimants must be of preponderance of probability. While appreciating evidence, what the Courts have to see is whether such evidence when read as a whole appears to have ring of truth. The materials placed on record would indicate that the claimants have succeeded in establishing that the accident occurred on account of rash and negligent driving by the driver of the offending bus. We do not find any infirmities and illegality in the finding recorded on Issue No.1. We accordingly, answer points No.1 and 2 in the negative.

The Tribunal while assessing the compensation under the head of future loss of earning has assessed the income of the claimant at Rs.24,103/- but however has proceeded to add

50% towards future prospects. It is borne out from the records that the claimant was aged 47 years at the time of the accident. In view of the guidelines laid down by the Hon'ble Apex Court in Pranay Sethi's case [2017 ACJ 2700] we are of the view that the Tribunal was not justified in adding 50% future prospects. Following the guidelines laid down by the Apex Court in the aforesaid case, we add 30% future prospects. Thus, by adding 30% future prospects, monthly income of the claimant is assessed at Rs.24,103x30/100=Rs.31,333/- per month and Rs.3,75,996/- per annum. For the assessment year 2013-14, the income upto Rs.2,50,000/- is exempted from income tax. On the amount in excess of Rs.2,50,000/- i.e., Rs.3,75,996- 2,50,000=Rs.1,25,996/- 10% slab is applicable and accordingly, a sum of Rs.12,599/- is liable to be deducted towards income tax. After deducting the above said amount towards tax, the annual income is assessed at Rs.3,63,397/-. On meticulous examination of medical evidence on record it is

forthcoming that the claimant is virtually bed ridden. The physiotherapist who is examined as P.W.5 has stated in his evidence that the patient is bed ridden and unable to even move on the bed. He has also further specifically stated that the patient needed intensive physio for at least 18 months to achieve supported standing and balancing of his body. Admittedly, the claimant prior to accident was working as a driver. Having regard to his age and avocation and having taken note of the physical condition which is borne out from the medical records, we are of the view that the claimant is totally disabled from earning any kind of livelihood. The evidence on record clearly indicates that he is prevented or restricted from discharging his previous activities and functions. The evidence also indicates that the claimant is not in a position to carry on even lesser scale of activities and functions. Hence, the finding of the Court below that the claimant has a disability of 100% is based on medical evidence on record and we are not inclined to interfere with the said

finding of the Tribunal. The decision cited by the learned counsel for the claimant in Parminder Singh .vs. New India Assurance Company [AIR 2019 SC 3128] is squarely applicable to the case on hand and by following the principles laid down in the said judgments, we have assessed the loss of earning capacity of the claimant in the present case on hand. Having assessed the income of the claimant at Rs.3,63,397/- and by taking 100% disability and applying the multiplier of 13 the compensation payable under the head of future loss of earning is re-determined at Rs.47,24,161/-.

The claimant has suffered grievous head injury and also fracture of right clavicle and fracture to right second to sixth ribs with lung contusion. The said injuries are stated to be grievous in nature. Hence, we would deem it fit to award Rs.1,00,000/- towards pain and suffering as against Rs.60,000/- awarded by the Tribunal. Rs.11,00,000/- awarded by the Tribunal towards medical expenses is fair and just and does not warrant any further enhancement.

It is borne out from the records that the claimant was inpatient for a period of 83 days. He has undergone treatment in various hospitals. In that view of the matter, we would find that the compensation awarded towards conveyance, food and nourishment appears to be on the lower side. We deem it fit to enhance the same and accordingly, we award a sum of Rs.1,50,000/- as against Rs.75,000/- awarded by the Tribunal.

The claimant has got 100% neurological disability. The doctor who is examined as P.W.4 has stated in his evidence that the claimant has disability of 90% to the right upper limb on account of flaccid paralysis of the upper limb. It is also forthcoming from the evidence of P.W.5 that inspite of intensive physiotherapy for a period of 18 months, the claimant has achieved supported standing and balancing of his body. Having regard to medical evidence, we deem it fit to award Rs.1,00,000/- towards loss of amenities. The compensation awarded under the head of physiotherapy

treatment in a sum of Rs.2,13,000/- stands undisturbed. Having regard to the physical condition of the claimant, we would deem it fit to award Rs.1,00,000/- towards future attendant charges. Thus, the total compensation payable is re-determined at Rs.64,87,161/- as against Rs.69,00,000/- determined by the Tribunal, under the following heads: Sl. No. Head of Compensation Amount in Rs. 1. Pain and Sufferings 1,00,000/- 2. Medical Expenses 11,00,000/- 3. Food and nourishment, conveyance, attendant charges and other incidental expenses 4500x3 ambulance,83 days 1,50,000/- 4. Loss of future earning due to permanent disability 47,24,161/- 5. Loss of amenities 1,00,000/- 6. Physiotherapy Expenses 2,13,000/- 7. Future attendant charges 1,00,000/-

Total 64,87,161/-

The claimant is held entitled to the aforesaid amount with interest at the rate of 6% per annum from the date of claim petition till its realisation.

ORDER

i) The appeal filed by the Insurance Company in MFA.No.331/2017 is allowed in part and the appeal filed by the claimant in MFA.No.235/2017 stands dismissed. ii) The total compensation awarded by the Tribunal is modified and reduced to Rs.64,87,161/- as against Rs.69,00,000/- with interest at the rate of 6% per annum from the date of the claim petition till its realization. iii) The portion of the order of the Tribunal inasmuch as liability, apportionment and disbursement remains intact. iv) 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. v) The modified compensation amount shall be apportioned and disbursed in terms of the order of the Tribunal. vi) Draw modified award accordingly. vii) The Registry shall transfer the amount in deposit with original records to the jurisdictional Tribunal forthwith. viii) All pending I.As., if any, shall stand disposed of accordingly.

Sd/- JUDGE

Sd/- JUDGE

*alb/-.