Mr. R. Hariharan V. The New India Assurance Co. Ltd. and Mr. Kanagaraju and Mr. Krishnan Mani

MFA/1572/2013

AI Insights

The case involves an appeal by Mr. R. Hariharan against the judgment and award of the Tribunal which partially allowed his claim for compensation due to injuries sustained in a vehicular accident. The appellant contested the quantum of compensation awarded, arguing that the Tribunal erred in assessing his income and disability percentage, which affected the compensation amount. The High Court of Karnataka, after reviewing the evidence and arguments, found merit in the appellant's claims and adjusted the compensation accordingly.

• Counselvise Citation: [2021] 140 COUNSELVISE.COM (IT) 690601 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 09-07-2021
• Assessment Year: misc
• Laws Referred To: MV Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: C R RAVISHANKAR; K T GURUDEVA PRASAD
• Assessee Lawyers: ARJUN REGO
• Keywords: Compensation Enhancement; Disability assessment; Income Assessment; Medical expenses; Quantum of compensation
• Section: 173(1)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JULY, 2021 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.1572/2013 (MV) BETWEEN: MR. R. HARIHARAN, AGED ABOUT 61 YEARS, SON OF LATE T.S. RAMANATHAN, PRESENTLY R/AT NO.729 (FIRST FLOOR), C.M.H.ROAD, INDIRANAGAR 1ST STAGE, BENGALURU 560 038. REPRESENTED HEREIN BY HIS GPA HOLDER MRS.RAJI HARIHARAN, AGED ABOUT 60 YEARS, PRESENTLY R/AT NO.729 (FIRST FLOOR), C.M.H.ROAD, INDIRANAGAR 1ST STAGE, BENGALURU-560 038. … APPELLANT [BY SRI ARJUN REGO, ADVOCATE FOR M/S. REGO & REGO (THROUGH V.C.)] AND: 1. THE NEW INDIA ASSURANCE CO. LTD., “INDOCEM HOUSE”, 2ND FLOOR, #327/5, MYSORE ROAD, BENGALURU-560039. REPRESENTED BY ITS DIVISIOANL MANAGER. 2. MR. KANAGARAJU, AGED ABOUT 44 YEARS, S/O PONNUSAMY VELAPPAN, OWNER, TOYOTA COROLLA H5 NO.KA-03/MG-2313, NO.102/5, “SAKTHI”, 80 FEET ROAD, INDIRANAGAR, BENGALURU-560 038. 2 3. MR. KRISHNAN MANI, AGED ABOUT 55 YEARS, S/O KRISHNAN, PRESENTLY RESIDING AT:NO.723, “KRISHNA”, C.M.H.ROAD, INDIRANAGAR, 1ST STAGE, BENGALURU-560 038. ... RESPONDENTS [BY SRI C.R. RAVISHANKAR, ADVOCATE FOR R-1; SRI K.T. GURUDEVA PRASAD, ADVOCATE FOR R-2 AND R-3] THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.10.2012 PASSED IN MVC.NO.4055/2008 ON THE FILE OF THE 7TH ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MEMBER, MACT-3, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS M.F.A. COMING ON FOR ADMISSION THROUGH VIDEO CONFERENCE THIS DAY, THE COURT DELIVERED THE FOLLOWING: J U D G M E N T Though this matter is listed for admission today, with the consent of the learned counsel for the parties it is taken up for final disposal. 2. This appeal is filed challenging the judgment and award dated 09.10.2012 passed in M.V.C.No.4055/2008 on the file of the VII Additional Judge, Court of Small Causes, Member, MACT-3, Bengaluru (‘the Tribunal’ for short) questioning the quantum of compensation. 3 3. The parties are referred to as per their original rankings before the Tribunal to avoid the confusion and for the convenience of the Court. 4. The factual matrix of the case is that on 24.03.2008 at around 7.45 a.m., the petitioner was knocked off by the driver of the car bearing registration No.KA-03/MF-2313 and suffered fractures and hence the claim petition was filed before the Tribunal. The Tribunal while answering issue No.2 in page No.9 of the judgment has taken note of the petitioner is a Marine Superintendent in Texas, U.S.A. and drawing a salary of 16,500/- USA Dollars per month. The petitioner has produced Ex.P.7 – employment contract/agreement between the petitioner and Modec International, Ex.P.11 – PAN Card, Ex.P.12 – Saral Form pertaining to the year 2006-07, which shows the total income of the petitioner as Rs.1,57,540/-. The total tax payable is Rs.15,754/-. After deducting the tax, his income during the year 2006-07 is Rs.1,41,786/-. Ex.P.13 acknowledgment issued by the I.T. Department shows that income nil and there is loss of income. The above said documents show that the petitioner has got a reasonable income. Hence, the reasonable income of 4 Rs.11,000/- per month is taken into consideration for computing the loss of income. Taking note of the evidence of P.W.3 doctor, who had spoken with regard to the disability of 15% to the whole body, the Tribunal restricted the disability to 10% without assigning any reasons. Hence, the present appeal is filed. 5. The learned counsel for the appellant would contend that in view of the agreement Ex.P.7, the income of the claimant is 16,500/- U.S.A. Dollars and the Tribunal has committed an error in taking the income of Rs.11,000/- per month. The Tribunal ought to have taken the income in terms of Ex.P.7. The compensation awarded under other heads is also very meager. The learned counsel submits that the Tribunal committed an error in taking the disability of 10% as against the evidence of doctor P.W. 3 who had spoken of 15% disability. The claimant was in the hospital for a period of 23 days and due to the said accidental injuries, the claimant could not carry out the work entrusted to him in terms of Ex.P.7. The learned counsel also brought to the notice of this Court Exs.P.29 and 30, the tickets booked to carry out the work entrusted to him in terms of Ex.P.7. Hence, it requires interference of this Court. 5 6. Per contra, learned counsel appearing for respondent Nos.2 and 3 would vehemently contend that the Tribunal in detail discussed before assessing the compensation and taking into consideration the Ex.P12-Saral Form pertains to the year 2006-2007 after deducting the tax arrived for an amount of Rs.1,41,786/- was considered and also considered the income of Rs.11,000/- per month. Hence, it does not require any interference by this Court. 7. Learned counsel appearing for respondent No.1/Insurance Company also reiterates the grounds urged by the learned counsel appearing for respondent Nos.2 and 3. 8. Having heard the arguments of the respective counsel and on perusal of the grounds urged in the appeal and the materials available on record, the points that would arise for consideration of this Court are: (i) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires an interference of this Court? (ii) What order? 6 Point No.(i): 9. Having heard the respective counsel and on perusal of the material available on record and also considering the nature of injuries i.e., fracture of dislocation of right sacro-iliac joint; fracture of right superior and inferior pubic rami, fracture of tibial condyle on right side and abrasion over right thigh, which have been mentioned in the Wound Certificate-Ex.P4 and also the medical records i.e., Ex.P9-Discharge Summary, which discloses that he was an inpatient for a period of 23 days, the Tribunal rightly awarded an amount of Rs.50,500/- on the head of pain and agony, considering the three fractures and also the abrasion over left thigh. It is an accident of the year 2008, the Tribunal rightly considered the actual medical bills and awarded Rs.2,49,610/- on the head of actual medical bills. Hence, I do not find any error in awarding the compensation towards pain and agony and actual medical bills. 10. The Tribunal awarded compensation of Rs.4,500/- on the head of attendant charges taking Rs.150/- x 30 days and also for food, nourishment and conveyance, an amount of 7 Rs.8,000/- was awarded. In all, an amount of Rs.12,500/- was awarded. The Discharge Summary discloses that he was an inpatient for a period of 23 days in terms of Ex.P9. When such being the case, the Tribunal ought to have awarded compensation of Rs.20,000/- on the head of other incidental expenses inclusive of conveyance, food, nourishment and attendant charges as against Rs.12,500/-. 11. The Tribunal has not awarded any compensation on the head of loss of income during the laid up period and the fact that he was having employment contract in terms of Ex.P7, a work was entrusted to him is not in dispute and he was an income tax assessee and his total income of Rs.1,57,540/- was also declared in terms of Ex.P12 for the year 2006-07. After deducting the tax, his income during the year 2006-07 was Rs.1,41,786/-. When he was an inpatient for a period of 23 days and subjected to surgery, the Tribunal ought to have considered his Income Tax returns and taken his income as Rs.11,815/- (141786/12). It is also the very contention of the claimant that due to the said accidental injuries he could not go abroad to carryout the work in terms of Ex.P7. Taking note of the three 8 fractures, it requires minimum 5 months time for re-uniting and also for rest. Hence, it is appropriate to award a compensation of Rs.59,075/- (11815 x 5) on the head of loss of income during the laid up period. 12. The Tribunal has awarded compensation of Rs.10,000/- on the head of loss of amenities when the Doctor has assessed the disability of 15% to the whole body. The compensation awarded by the Tribunal on the head of loss of amenities is on lower side. Hence, it is appropriate to award compensation of Rs.30,000/- on the head of loss of amenities. 13. Now coming to other aspect i.e., loss of permanent disability and future loss of income is concerned, the Tribunal has taken the income of Rs.11,000/- and this Court re-assessed the same, it comes to Rs.11,815/-. Though the Doctor, who has been examined as P.W.3, he categorically deposed taking note of the nature of injuries, assessed the disability at 15%. The Tribunal without considering the same and without assigning any reasons taken the disability as 10%. However, it is observed that considering the nature of injuries sustained by the claimant and the medical evidence available on record, the disability 9 suffered by the claimant can moderately be taken as 10% and the very approach of the Tribunal is erroneous. The Doctor, who has been examined as P.W.3 assessed the disability of 15% and while discarding the evidence of P.W.3, the Tribunal ought to have given the reasons and the same has not been done. Hence, the Tribunal has committed an error in taking the disability of 10%. Hence, the same has re-visited and considered the evidence of the Doctor, who had spoken with regard to 15% disability. Having considered the 15% disability and he was also aged about 56 years as per the medical records, the relevant multiplier would be 9, then it comes to Rs.1,91,403/- (11815x12x9x15/100) towards permanent disability and future loss of income. 14. Now coming to the evidence of the Doctor-P.W.3, who deposes the claimant was in need of one more surgery, it costs about Rs.30,000/- for removal of implants in their hospital. He was subjected to cross-examination. In the cross- examination, he admits that his name is shown as he assisted for conducting the surgery in Ex.P15. It is suggested that Rs.30,000/- is not required for removal of implants and the 10 same has been denied. Except the cross-examination suggesting that he is not in need of any expenses for future surgery and nothing is elicited in the cross-examination of P.W.3. The Tribunal committed an error in not awarding any compensation on the head of future medical expenses. The evidence of the Doctor, P.W.3 is very specific that he is in need of one more surgery for removal for implants. Hence, the Tribunal ought to have considered the same and the discharge summary also discloses that he was subjected to surgery and for removal of implants, he required one more surgery. Hence, an amount of Rs.20,000/- is awarded on the head of future medical expenses. 15. In all, the appellant/claimant is entitled for an enhanced compensation of Rs.6,20,588/- as against Rs.4,41,410/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization. Point No.(ii): 16. In view of the discussions made above, I pass the following: ORDER (i) The appeal is allowed in part. 11 (ii) The judgment and award dated 09.10.2012 passed in M.V.C.No.4055/2008 on the file of the VII Additional Judge, Court of Small Causes, Member, MACT-3, Bengaluru, is modified granting compensation of Rs.6,20,588/- as against Rs.4,41,410/- awarded by the Tribunal with interest at the rate of 6% per annum from the date of petition till realization. (iii) The respondent No.1/Insurance Company is directed to deposit the enhanced compensation amount within six weeks from today. (iv) The Registry is directed to transmit the records to the concerned Tribunal, forthwith. Sd/- JUDGE MD/cp* "