Smt. Veena S. V. The New India Assurance Company Ltd. and H.K. Sheshachala

MFA/9477/2015

AI Insights

This case involves an appeal by Smt. Veena, the claimant, against the inadequate compensation awarded by the Motor Accident Claims Tribunal, Mysuru, following a road traffic accident caused by a motorcycle. The accident resulted in severe injuries and permanent disabilities to the claimant, leading to her voluntary retirement from Canara Bank where she was employed. The primary legal issues revolved around the adequacy of the compensation awarded for loss of earning capacity and other damages. The High Court of Karnataka, after re-evaluating the evidence and applying relevant legal principles, significantly increased the compensation awarded to the claimant.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 798987 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 22-06-2020
• Assessment Year: misc
• Other Referred Cases: Raj Kumar vs. Ajay Kumar [(2011) 1 SCC 343], Sarla Varma and Others vs. Delhi Transport Corporation and Another (2009) 6 SCC 121
• Laws Referred To: Motor Vehicles Act, 1988
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: C REDDY
• Assessee Lawyers: KRISHNA
• Keywords: Compensation; Enhancement of compensation; Motor Accident; Negligence; Permanent disability
• Section: 166; 173(1)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JUNE 2020 PRESENT THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA AND THE HON’BLE MR. JUSTICE RAVI V. HOSMANI M.F.A.NO. 9477 OF 2015(MV-I) BETWEEN SMT. VEENA.S., WIFE OF PARAMESHWARA, AGED ABOUT 53 YEARS, RESIDING AT NO. 169, PUSHPAGIRI, SIDDALINGESHWARA NAGAR, BHOGADI - 2ND STAGE, MYSORE. …APPELLANT (BY SRI. KRISHNA B.R, ADVOCATE) AND: 1 . THE NEW INDIA ASSURANCE COMPANY LTD., (BO-5), 3RD CROSS, R.P.ROAD EXTENSION, NANJANGUD, MYSORE DISTRICT REPRESENTED BY ITS BRANCH MANAGER, AND HAVING ITS REGISTERED HEAD OFFICE AT: BUILDING NO. 87, M.G.ROAD, FORT, MUMBAI. 2 . H.K.SHESHACHALA SON OF KESHAVAIAH, 2 AGED ABOUT 53 YEARS, RESIDING AT NO. 3, 16TH CROSS, THULASI NILAYA, JAYANAGAR, MYSORE. …RESPONDENTS (BY SRI. C. SHANKAR REDDY, ADVOCATE FOR R1 V/O DATED 13/04/2016 NOTICE TO R2 IS D/WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 28.09.2015 PASSED IN MVC NO.1127/2012 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND MEMBER, MACT, MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING: JUDGMENT Though this appeal is listed for admission, with consent of learned counsel on both sides, it is heard finally and disposed of by this judgment. 2. This appeal has been filed by the claimant, being aggrieved by the inadequate compensation awarded by the III Addl. District Judge & Motor Accident Claims Tribunal, Mysuru (hereinafter referred to as ‘Claims Tribunal’, for short) vide judgment and award dated 28.09.2015, in M.V.C.No.1127/2012 filed under Section 166 of the Motor 3 Vehicles Act, 1988, (hereinafter referred to as ‘the Act’ for short). 3. Brief facts leading to filing of the above appeal are that on 28.12.2011, the claimant – Smt. Veena, was proceeding towards Dhyuthi Motors on Hunsur Road and when she was about to cross the road a Hero-Honda Motorcycle bearing registration No. CMM-8830 belonging to respondent No.2 came from the opposite direction at a high speed and in a rash and negligent manner, so as to endanger human life and dashed against her. As a result of the impact, the claimant fell down and suffered multiple and grievous injuries and became unconscious. Immediately, she was shifted to Basappa Memorial Hospital, Mysuru and took treatment for about 45 days. She underwent major surgeries. Despite treatment she sustained permanent disability. Hence, she filed a claim petition claiming compensation of Rs.80,00,000/- on account of permanent disability suffered by her. 4 4. On service of notice, respondents No.1 and 2 – insurer and owner respectively, of the offending Motorcycle entered appearance before the Tribunal. But respondent No.2 did not file any objections. 5. Respondent No.1 filed its objections contending that the petition is not maintainable in law or facts and that the accident was not on account of rash and negligent riding of the rider of the motor cycle but on account of the negligence on the part of the claimant herself. It contended that the petition is bad for non-joinder of driver of the offending vehicle. It has admitted the issuance of policy and its validity at the time of the accident. It has contended that the rider of the motorcycle was not having valid and effective driving licence at the time of accident and its liability is subject to the terms and conditions of the policy. Hence, respondent No.1 prayed for dismissal of the petition. 6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration: 5 i) Whether the petitioner proves that the accident on 28.12.2011 at 9.30 a.m. near B.M. Hospital on Mysore-Hunsur road, Mysuru City occurred due to rash and negligent driving of the driver of Hero Honda CD 100 Motor Bike bearing registration No.CMM- 8330 which resulted in grievous injuries as stated in the Wound Certificate? ii) Whether the petitioner is entitled for compensation? If so, to what extent and from whom? iii) What Order? 7. In support of her case, claimant got examined herself as PW-1 and examined two more witnesses i.e., the Doctor - PW-2 and Bank Manager - PW-3. Exhibits P.1 to P.26 were marked on behalf of the claimant. Respondent No.2 did not lead any oral evidence, but got marked the Insurance policy as Ex.R.1. 8. The Claims Tribunal answered issue No.1 in the affirmative. It answered issue No.2 Partly in the affirmative and held that the petitioner is entitled to a compensation of Rs.11,75,184/- with future interest at the rate of 6% 6 per annum from respondents No.1 and 2 jointly and severally and issue No.3 as per final order. 9. Being aggrieved by the inadequate compensation awarded by the claims tribunal, the claimant has preferred this appeal for enhancement. 10. We have heard Sri. Krishna B.R, learned counsel for the appellant and Sri. C. Shankar Reddy, learned counsel for respondent No.1 who appeared in person. 11. Learned counsel for the appellant submitted that prior to the accident, claimant was working as a Clerk in Canara Bank. She was drawing a monthly salary of Rs.39,294/-. Due to the accident, she has suffered permanent disability. She is unable to speak properly, she has weakness in her limbs. She has difficulty in memory and concentration. Due to the same, she was forced to apply for voluntary retirement. The same was accepted by the Bank. Thus, she suffered loss of earning capacity to 7 the extent of 100%. However, the Claims Tribunal has not awarded any compensation towards loss of earning capacity. Hence, he sought award under this head. Learned counsel also contended that award of compensation under other heads was also inadequate and sought enhancement. 12. On the other hand, learned counsel for the Insurer submitted that the Doctor who treated the claimant assessed permanent physical disability of the claimant at 30% to 35% and the claimant continued to work after the accident. Hence, she is not entitled for any award under the head, loss of future earning capacity. And in any case, it cannot be more than 30% to 35%. Learned counsel also opposed any enhancement of compensation under the remaining heads. 13. Having heard learned counsel for the respective parties, following points arise for consideration in this appeal: 8 1) Whether the Claims Tribunal was justified in not considering the loss of earning capacity of the claimant at 100%, even though she was forced to seek voluntary retirement due to the permanent disability sustained in the accident? 2) Whether the compensation awarded under the various heads calls for enhancement? 3) What order? 14. In this case, the Insurer has not preferred any appeal against the award passed by the Claims Tribunal. Thus the occurrence of the accident on 28.12.2011, wherein the claimant, Smt. Veena, was hit by the Hero Honda motorcycle bearing registration No. CMM-8830 due to rash and negligent riding of the Motorcycle by its rider is not in dispute. It is also not in dispute that in the said accident, the claimant sustained grievous injuries and permanent disability. The only dispute is regarding the extent of loss of earning capacity and the consequent enhancement of compensation. 9 Point No.1 15. In the case on hand, PW-2 Dr. V. Shivananda, Consultant Neurosurgeon, BM Hospital, Mysuru has stated in his evidence that when the claimant came to him for assessment of disability, she was complaining of memory disturbance, difficulty in speaking properly and inability to work. On examination she was found conscious, responding to oral commands but had difficulty in fluent speech, was not able to comprehend and was unable to initiate the speech. She had memory disturbance and was making mistakes in calculation, identifying names of things, persons or places. She felt fatigued even by walking small distances and she had left side lower limb minimal weakness. On an assessment, he found the extent of permanent disability to be at 30% to 35% to the whole body. But he has specifically opined that she may not be able to go back to work which she was doing prior to the accident. 10 16. While assessing loss of earning capacity consequent upon permanent disability, the principles laid down in the case of Raj Kumar vs. Ajay Kumar reported in [(2011) 1 SCC 343] have to be borne in mind. In the said decision, the Hon’ble Supreme Court has held: “8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person’s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person’s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, 11 are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Disabilities Act”, for short). But if any of the disabilities enumerated in section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference 12 to the whole body cannot obviously exceed 100%. 10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, 13 to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.) 12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence: (i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the 14 permanent disability suffered by the person. If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity. 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities 15 and functions so that he continues to earn or can continue to earn his livelihood. 14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning 16 capacity, taking note of the reduced earning capacity. 15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. 16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular, the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to “hold an enquiry into the claim” for determining the “just compensation”. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the “just compensation”. While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopedic 17 Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorised texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen’s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. 17. If a doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non-medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor's opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage. 18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give “ready to use” disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily 18 giving liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of claimant, is tendered for cross- examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability. 19. We may now summarise the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning 19 capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of loss of earning capacity is the same as percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.” 17. In light of the above observations, the claimant in this case has suffered permanent disability, the nature 20 of which, as per the evidence of PW-2, clearly establishes that it has resulted in loss of earning capacity to an extent of 100%. The claimant made her application for voluntary retirement due to permanent disability as Ex.P.21. It is seen from Ex.P.23 that the application for voluntary retirement was accepted. When the claimant has lost her employment only because of the injuries and disabilities suffered in the accident, the assessment of loss of earning capacity has to be taken at 100%. Thus point No.1 is answered in the negative and it is held that the loss of earning capacity of the claimant would be 100%. Point No.2 18. In the instant case the Claims Tribunal has awarded a total of Rs.11,75,184/- as compensation under the various heads as follows: Pain and sufferings Rs. 1,50,000/- Medical Expenses Rs. 1,04,422/- Attendant’s charges, Nutritious Food and Transportation, etc., Rs. 25,000/- Loss of income Rs. 4,89,000/- Permanent Disability Rs. 1,00,000/- Future unhappiness Rs. 50,000/- Total Rs.11,75,184/- 21 19. Since the claimant is seeking for enhancement of compensation, the evidence on record has to be re- examined. In the case on hand, PW-2 Dr. V. Shivananda, Consultant Neurosurgeon, BM Hospital Mysore has stated in his evidence that the claimant Smt. Veena was brought to BM Hospital on 28.12.2011 with a history of road traffic accident. Since she had suffered head injury, CT Scan of the head was done. On examination he found the following injuries. 1. Multiple contusion of left temporal and parietal lobe of brain, 2. right temporal lobe of brain contusion, 3. fracture of the temporal bone right side and 4. brain oedema. On a repeat CT Scan, the next day, it was found that the brain oedema was increasing therefore, she was subjected to emergency surgery. Craniotomy and decompression was done and scalp bone flap removed. Thereafter she was on ventilator support for four weeks. Tracheotomy was also done. On a further CT scan on 02.01.2011 it was found that the brain oedema was still 22 persisting. Therefore, ventilator support was continued. Gradually she began eye and limb movement but she was not able to walk and her speech was irrelevant and repetitive. Thereafter she went back for surgery of removal of bony defect. The claimant was advised medicine and physiotherapy with regular follow up, the last one being on 04.07.2013. Considering the injuries suffered, it is seen that the claimant has undergone pain and suffering. However, the award of Rs.1,50,000/- even though she suffered one fracture and other injuries as well appears to be on the higher side. In our considered view it would be appropriate to award Rs.1,00,000/- towards pain and suffering. 20. The Claims Tribunal on a detailed consideration of the bills towards medical expenses and by deducting the amount of medical reimbursement awarded a sum of Rs.1,04,422/- towards medical expenses. There are no good grounds to interfere with the same. 23 21. It is seen that the claimant has undergone inpatient treatment for about 47 days. However, the Claims Tribunal has awarded a sum of Rs.25,000/- only towards food, nourishment, attendants, transportation and other incidental charges. Considering an average daily expenditure of Rs.1000/-, we deem it appropriate to award a sum of Rs.50,000/- under this head. 22. The gross salary of the claimant for the month of December 2011 is Rs.40,871/- as per Ex.P18. Out of the same Rs.1,208/- has to be deducted towards Income Tax and Rs.200/- towards Professional Tax respectively. Therefore, the monthly income of the claimant after deduction of Tax would be Rs.40,871 – Rs.1,208 – Rs.200 = Rs.39,463/-. In the wound certificate at Ex.P7 and the certificate issued by Canara Bank at Ex.P17, the age of the claimant is mentioned as 49 years. As per the decision of the Hon’ble Supreme Court in Sarla Varma and Others vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 the multiplier applicable to the age 24 of the claimant would be ‘13’. Thus, the loss of earning capacity would be Rs.39,463/-(100% of salary) x 12 x 13 = Rs.61,56,228/-. The same is awarded to the claimant. 23. Apart from the above compensation, the Claims Tribunal has awarded a sum of Rs.1,00,000/- under the head of permanent disability and Rs.50,000/- towards future unhappiness. In lieu of the same and considering the nature and extent of permanent disability suffered by the claimant we deem it appropriate to award a lumpsum of Rs.2,00,000/- towards loss of amenities. Thus, point No.1 is answered in favour of the claimant and the claimant is held entitled to reassessed compensation of Rs.66,10,650/- with interest at the rate of 6% per annum as against Rs.11,75,184/-. Thus, there is an enhancement of Rs.54,35,466 /-. The same is tabulated as under: Pain and sufferings Rs. 1,00,000/- Medical Expenses Rs. 1,04,422/- Food, Nourishment, Transportation and Incidental Charges, etc., Rs. 50,000/- Loss of Earning Capacity Rs.61,56,228/- Loss of Amenities Rs. 2,00,000/- Total Rs.66,10,650/- 25 24. In the result, we pass the following: ORDER The appeal is allowed in part. i. The claimant is entitled for a total compensation of Rs.66,10,650/- with interest at the rate of 6% per annum from the date of filing of claim petition till the date of payment or deposit, whichever is earlier. ii. On deposit of the balance award amount by the Insurance Company, the Claims Tribunal shall deposit 75% of the compensation in Fixed Deposit in the name of the claimant for an initial period of ten years in any Nationalised Bank or Post office earning highest interest, which shall be free from encumbrances. The claimant will be at liberty to withdraw interest periodically. Balance compensation 26 shall be released to the claimant after due identification. iii. The respondent Insurance Company is directed to deposit the enhanced compensation within a period of six weeks from the date of receipt of a copy of this judgment. Parties to bear their respective costs. Registry to transmit the original record to the concerned Claims Tribunal forthwith. Sd/- JUDGE Sd/- JUDGE BVK "