Sri. Harish Kobrekar V. The New India Assurance Co Ltd. and M/S Venkateshwara Hatcheries Pvt Ltd

MFA/7447/2016

AI Insights

This case involves two appeals arising from a motor vehicle accident where the claimant, Sri. Harish Kobrekar, was severely injured. The accident occurred when an Eicher goods vehicle, driven rashly, collided with Kobrekar, who was parked and inspecting a punctured wheel. The MACT awarded Kobrekar a compensation of Rs.27,02,998, which included various heads like pain and suffering, loss of future income, and medical expenses. The insurance company appealed against the quantum of compensation, arguing it was excessive and not justified by the evidence, while Kobrekar appealed for enhancement of the compensation. The High Court examined the evidence, including medical assessments of disability and employment records, and modified the compensation awarded by the MACT.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 690627 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 20-01-2020
• Assessment Year: misc
• Other Referred Cases: Govind Yadav Vs. New India Assurance Company Ltd.
• Laws Referred To: Motor Vehicles Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: B C SEETHARAMA RAO; C T PARAMESHWARAPPA
• Assessee Lawyers: SHIVA KUMAR
• Keywords: Compensation; Enhanced compensation; Motor vehicle accident; Negligence; Permanent disability
• Section: 166; 173(1)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY 2020 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE RAVI V. HOSMANI MFA NO. 7447 OF 2016(MV-I) C/W MFA NO.2084 OF 2016(MV-I) IN MFA NO.7447/2016 BETWEEN: SRI. HARISH KOBREKAR S/O C.K.KOBREKAR, AGED ABOUT 31 YEARS, R/AT NO.2, M BLOCK, ADUGODI QUARTERS, ADUGODI, BENGALURU - 560 030. ….APPELLANT (BY SRI.SHIVAKUMAR P, ADVOCATE) AND: 1. THE NEW INDIA ASSURANCE CO LTD., DO III, MAHALAKSHMI COMPLEX, M.G.ROAD, BENGALURU - 560 001 REP BY ITS MANAGER. 2. M/S VENKATESHWARA HATCHERIES PVT LTD SITE NO.1, GANESHA CHAMBERT, 3RD FLOOR, BANASWADI MAIN ROAD, NEW R.M. NAGAR SIGNAL, BANASWADI POST, BENGALURU. …RESPONDENTS (BY SRI.B C SEETHARAMA RAO, ADVOCATE FOR R1; R2 SERVED) 2 THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.01.2016 PASSED IN MVC NO.5573/2013 ON THE FILE OF THE XXIII ADDITIONAL SMALL CAUSE JUDGE & XXI ACMM, MACT, COURT OF SMALL CAUSES, BENALURU, ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. IN MFA NO.2084/2016 BETWEEN: THE NEW INDIA ASSURANCE CO LTD DO-III, MAHALAXMI CHAMBERS M G ROAD, BANGALORE-560001 THROUGH ITS REGIONAL OFFICE, MAHALAXMI CHAMBERS, M G ROAD, BANGALORE-560001 REPT BY ITS MANAGAER, SRI LAKSHMINARAYANA ...APPELLANT (BY SRI.B C SEETHARAMA RAO, ADVOCATE) AND: 1. SRI HARISH KHOBREKAR AGED ABOUT 31 YEARS, S/O C K KOBREKAR NO.2, M BLOCK, ADUGODI QUARTERS, ADUGODI, BANGALORE-560030 2. M/S VENKATESHWARA HATCHERIES PVT LTD SITE NO.1, GANESHA CHAMBER, 3RD FLOOR, BANASWADI MAIN ROAD, NEW R M NAGAR SIGNAL, BANASWADI POST, BANGALORE-560043 …RESPONDENTS (BY SRI.SHIVAKUMAR P, ADVOCATE FOR C/R1(CP NO.237/16); SRI.C.T.PARAMESHWARAPPA, ADVOCATE FOR R2 ABSENT) 3 THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:01.01.2016 PASSED IN MVC NO.5573/2013 ON THE FILE OF THE 21ST ACMM & 23RD ADDITIONAL SMALL CAUSES JUDGE, BENGALURU, AWARDING THE COMPENSATION OF RS.27,02,998/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT. THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, RAVI V. HOSMANI, J., DELIVERED THE FOLLOWING: JUDGMENT Since both the appeals arise out of the judgment and award dated 01.01.2016 passed in MVC No.5573/2013 on the file of the XXIII Additional Small Cause Judge & XXI ACMM, MACT, Court of Small Causes, Bengaluru (hereinafter referred to as the ‘MACT’) and the same are taken up for disposal together with the consent of the learned counsel for the parties. 2. Heard learned counsel appearing for the parties. 3. The facts leading to instant appeals arise out of the accident dated 17.09.2013 when Sri. Harish Khobrekar had parked his Car on the left side mud portion of Bangalore Nelamangala, NH-4 opposite to Kiran Petrol bunk, as one of the wheels of his car was punctured and he had alighted the Car after switching 4 on the indicators and was examining the wheel at about 11.45 p.m. At that time, the driver of Eicher goods vehicle bearing registration No.KA-53-5316 came in a rash and negligent manner dashed against Sri. Harish Khobrekar causing him grievous injuries. Immediately, thereafter he was shifted to M.S. Ramaiah hospital where he underwent treatment as inpatient for 10 days. For causing the said accident, a case in Cr.No.427/13 under Sec.279 and 337 of IPC was registered against the driver of the goods vehicle. As the claimant suffered permanent disability, MVC No.5573/2013 was filed under Section 166 of the Motor Vehicles Act claiming for compensation of Rs.75,00,000/- lakhs, against the owner and insurer of the offending goods vehicle. 4. Upon receipt of notice, the owner did not enter appearance and was placed ex-parte. However, the insurer, entered appearance and filed written statement denying negligence on the part of the driver of the insured vehicle etc., 5 5. In support of the claim, the claimant examined himself as PW1 and additional five witnesses and got marked documents Ex.P.1 to P.37. The respondent- insurance company examined three witnesses and got marked documents Ex.R1 to R.9. 6. Taking note of the fact that the driver of the insured vehicle, who was also examined as RW.3 admitted in his cross-examination that he had pleaded guilty to the offence alleged against him and had paid the fine, the MACT held the issue regarding negligence and liability against the Respondents. Thereafter, the MACT by considering the various documents and evidence awarded a total compensation of Rs.27,02,998/- under the following heads, with interest at the rate of 6% per annum: 1. Pain and suffering Rs 50,000/- 2. Loss of future income Rs.22,62,386/- 3. Loss of amenities & Happiness Rs. 2,26,238/- 4. Medical expenses Rs. 1,49,374/- 5. Attendant charges Rs. 15,000/- Total Rs.27,02,998/- 6 7. Challenging the award, the insurance company has filed appeal. Whereas, the claimant has filed the appeal for enhancement. The common issue, therefore that arises for consideration in these appeals is: “Whether the award of the MACT requires interference?” 8. To answer the same the appeal of the insurance company is taken, upfront. Shri. B.C.Seetharama Rao, learned counsel for the insurance company has mainly contended that the impugned award is unsustainable and excessive as the claimant had continued in his job and had, in fact, earned higher income than at the time of accident, as brought out from the evidence of RW2 , who is an Officer of the company, wherein the claimant was employed. It was also contended that the award towards loss of amenities and future loss of income was excessive. From Ex.P.35 and P.36, it could be noted that the claimant lost his employment only due to his resignation and not due to the injuries suffered in the accident. 7 9. In order to test the contentions, the MACT record was examined. It is noted that Ex.P.9 is a Physical Handicap Card issued to the claimant, wherein it is mentioned that he is suffering from 40% permanent disability. Ex.P.13 is his driving licence. From Ex.P.14 - appointment letter and Ex.P.15 - salary certificate, it is noticed that the claimant was employed by SELLBYTEL Company as Distributor-Virtual Business Manager for its client “Cisco Systems India Pvt. ltd.”, on a gross monthly salary of Rs.62,500/- including Rs.18,750/- p.m. as variable pay (commission based on performance and payable quarterly). Ex.P.17 is the certificate issued by the employer stating that due to the absence from work after the accident, the claimant had lost target and suffered loss of commission of Rs.95,946/-. From Ex.P.20- Income Tax returns for the assessment year 2013-14, it is seen that the annual income reported was Rs.2,44,960/- and the tax paid was Rs.17,271/-. And from Ex.P.21- claimants bank statement, it is seen that he was receiving on an average of Rs.42,000/- per 8 month as salary from the employer company during 2014-15. 10. The claimant in his evidence has stated that he is not able to use his right hand at all, that he does not have any grip, cannot fold his fingers, cannot hold pen, comb hair or wear cloths by himself. In short, he is unable to carry out normal day-to-day functions using his right hand. The said disability is certified by the evidence of the orthopedic surgeon - PW4, who has assessed the disability to the right upper limb at 80% and a further 10% due to loss of C-8 and T1 and T2 . The doctor has stated that loss of function of an organ, such as the right hand in this case, amounts to its amputation and the disability has to be assessed as such. During the course of cross-examination of the claimant, it has been elicited by the insurance company that the claimant was not forced to quit the job by the employer, but the claimant quit as he could not work, as before and could not match the work pressure due to his physical disability. 9 11. PW5, a consulting Neuro Surgeon has also examined the claimant and assessed his intellectual and neurological disability at 40%. Though the learned counsel for the insurance company has contended that the award of loss of earning capacity is unjustified, by referring to the evidence of RW2 - accountant to the effect that the claimant continued in the job and earned more than what he did prior to the accident. However, what is to be noted in the peculiar facts and circumstances of this case are that the requirement of modern day is that competitiveness is a part of requirement of the job, an employee is expected to perform at his peak always, else he will loose out on opportunities to his peers and suffer loss of self confidence and focus and the loss of which would definitely affect ones earning capacity. In the case on hand, the claimant has suffered not only physical disability of loss of use of his dominant right upper limb, but also suffered from loss of faculties of the mind. Under such circumstances, it is definitely going to affect the earning capacity of the claimant. The same looking 10 to the evidence on record can be assessed at 60% as the claimant may still be able to do less demanding jobs, which would also be for lower wages. Hence, the challenge by the insurance company regarding the award under the head loss of future income is rejected. 12. As regards the challenge to the award of Rs.2,26,238/- towards loss of amenities it is submitted that the Hon’ble Supreme Court in the case of Govind Yadav Vs. New India Assurance Company Ltd., reported in (2011) 10 SCC 683, has awarded a sum of Rs.1,50,000/- for loss of amenities on account of amputation of a limb. As stated supra, loss of use of a limb amounts to its amputation and therefore, requires to be compensated accordingly. In the case on hand, the award of Rs.2,26,238/- appears to be on the higher side and is reduced to Rs.1,50,000/-. 13. Now coming to the consideration of the appeal by the claimant for enhancement, the main grounds urged by Sri. Shiva Kumar P , learned counsel for the 11 claimant are that the MACT has erred in taking income at a lower scale than the one coming forth from the bank account statement - Ex.P.21, that the claimant had suffered 30% functional disability and 40% intellectual disability, which ultimately led to the claimant resigning from the job as he could not work as earlier and therefore, the assessment of loss of earning capacity at 35% only by the MACT was on the lower side. Even the award of Rs.50,000/- towards pain and suffering, Rs.15,000/- towards attendant charges and Rs.40,000/- towards conveyance etc., are on the lower side and no compensation was awarded for loss of income during laid up period. 14. While deciding the contention of the insurance company, it has been held that there is loss of earning capacity to an extent of 60%. Therefore, the compensation is required to be recalculated by taking the income as mentioned in the income tax return for the assessment year 2013-14 (Ex.P.20) at Rs.2,44,960/- i.e, Rs.2,44,960 X60%.= Rs.1,46,976/- which would be the 12 annual loss of earning capacity. Since the age of the claimant was 28 years, the multiplier applicable would be 17. Therefore the total amount towards loss of earning capacity would be Rs.24,98,592/-.(1,46,976 X12 X 17). As the claimant has suffered several grievous injuries, an amount of Rs.50,000/- towards pain and suffering is on the lower and is enhanced to Rs.75,000/-. As the claimant has taken prolonged treatment, the sum of Rs.15,000/- towards attendants is enhanced to Rs.35,000/-.Likewise, an amount of Rs.40,000/- awarded towards conveyance is enhanced to Rs.50,000/-. Though it has come in the evidence as per Ex.P17, that the claimant has lost a sum of Rs.95,946/- towards incentive and commission due to his absence from work, the same cannot be taken to be the loss of earning during laid up period as it is. However, a sum of Rs.50,000/- appears to be just and proper and is awarded accordingly. In the result, the appeal of the claimant succeeds to the extent stated above. 13 Accordingly, both appeals are disposed of and award of the MACT is modified to the extent stated above. The Statutory amount in deposit shall be transmitted to the claims Tribunal for disbursement to the claimant. Sd/- JUDGE Sd/- JUDGE Psg* "