Sri Prashanth Badeka V. The New India Assurance, Co., Ltd. and M/s City Autos

MFA/4275/2014

AI Insights

This case involves an appeal by the claimant, Sri Prashanth Badeka, against the judgment and award of the Motor Accident Claims Tribunal, Bengaluru, which partially allowed his claim for compensation due to injuries sustained in a vehicular accident. The accident occurred on July 16, 2002, when a Santro car, driven rashly, collided with the claimant, resulting in grievous injuries and permanent disability. Initially, the Tribunal awarded Rs. 18,30,616 as compensation, which was later set aside and remanded for fresh consideration. After re-evaluation, the Tribunal awarded Rs. 21,52,000, which the claimant found insufficient, leading to this appeal for enhancement of the compensation.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 798989 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 06-03-2020
• Assessment Year: misc
• Other Referred Cases: SYED SADIQ VS. DIVISIONAL MANAGER UNITED INDIA INSURANCE CO., LTD., 2014 SAR (CIVIL) 404
• Laws Referred To: Motor Vehicles Act, 1988
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: O MAHESH
• Assessee Lawyers: SHRIPAD SHASTRI
• Keywords: Compensation; Income Assessment; Motor Accident; Negligence; Permanent disability
• Section: 166; 173(1)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY OF MARCH, 2020 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE RAVI V. HOSMANI MFA NO. 4275 OF 2014(MV-I) BETWEEN: Sri Prashanth Badeka S/o Shanthilal, Aged about 53 years, R/at flat No.2, Sector 8A Behind Narmada Niketana, CBD Belapura, Navi Mumbai 400 614. …. APPELLANT (By Sri. Shripad V Shastri, Advocate) AND 1. The New India Assurance, Co., Ltd., Regional, D.O.X., 52, Vinay Complex, Vani, Vilas Road, Opp: to National College, Basavanaagudi, Bangalore- 560 004 By its Manager. 2. Proprietor, M/s City Autos, No.200, Lakshmi Towers, R.V.Road, Basavanagudi Bangalore. .. RESPONDENTS (By Sri. O. Mahesh, Advocate for R.1(absent) (Vide order dated 24.4.2015 notice to Respondent No.2 is dispensed with) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.2.2014 PASSED IN MVC NO.6173/2002 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES & XXVI ACMM MACT, BANGALORE, 2 PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THIS APPEAL COMING ON FOR HEARING, THIS DAY, RAVI V. HOSMANI J., DELIVERED THE FOLLOWING: JUDGMENT This appeal is filed under Section 173(1) of the Motor Vehicles Act, 1988 by the claimant-appellant challenging the impugned judgment and award dated 18.02.2014 in M.V.C.No.6173/2002 passed by the Motor Accident Claims Tribunal, Bengaluru (SCCH- 09)(hereinafter referred to as the ‘Claims Tribunal’). 2. The brief facts leading to filing of this appeal are that, on 16.07.2002, at 10.30 p.m., the claimant was crossing the road, near Shanatala Silks on Dhanwantri road, Bengaluru. At that time, the driver of the Santro car bearing registration No.KA-05-P-1198 drove the same in a rash and negligent manner, at high speed and dashed against the claimant causing grievous injuries. Immediately thereafter, the claimant took treatment as inpatient in Hospital, but the injuries resulted in permanent disability. 3 3. The claimant filed claim petition under Section 166 of the Motor Vehicles Act, 1989 seeking compensation of Rs.95,00,000/- against the owner and insurer of the offending car. On service of notice, respondents No.1 and 2 entered appearance. In its written statement, the respondent No.1-insurer admitted the issuance of insurance policy in respect of the offending car. However, it contended that the accident was on account of the negligence on the part of the claimant. It also denied the petition averments including the age, avocation and income of the claimant. The respondent No.2-owner did not file any written statement. 4. Based on the above pleadings, the Claims Tribunal framed issues and recorded the evidence of the parties. The claimant examined himself as P.W.1 and examined five other witnesses as P.Ws.2 to P.W.6 and 83 documents were marked at Exhibits P.1 to P.83. The respondents did not adduce any evidence. 4 5. On an earlier occasion, an award dated 16.1.2007 was passed granting compensation of Rs.18,30,616/- with interest at the rate of 6% p.a. Both the claimant as well as the insurer filed appeal against the award. This Court in MFA No.8849/2007 c/w MFA No.7215 /2007, set aside the award and remanded the matter to the Claims Tribunal for fresh consideration, with liberty to adduce further evidence. After remand, the claimant adduced further evidence and 10 documents were marked as Exhibits P.84 to P.94. The respondents did not adduce any evidence. 6. After holding that the accident was caused due to the rash and negligent driving by the driver of the car, and also holding the insurer liable to pay the compensation, the Claims Tribunal awarded a compensation of Rs.21,52,000/- with interest at the rate of 6% p.a. from the date of the petition till the date of payment. Seeking for enhancement of the compensation, the claimant has filed this appeal. 5 7. Learned counsel for the appellant Sri Sripad V. Shastri submitted that the assessment of the claimant’s income by the Claims Tribunal is on the lower side and that future prospects with regard to income has not been considered. It was further urged that the assessment of permanent disability and functional disability are on the lower side. He also contended that the compensation awarded under the other heads was meager. In support of his submission he relied upon the decision of the Supreme Court in ‘SYED SADIQ VS. DIVISIONAL MANAGER UNITED INDIA INSURANCE CO., LTD.,’, ‘2014 SAR (CIVIL) 404’ and the decision of the learned Single Judge of this Court in MFA No.9691/2013 disposed of on 27.11.2014. On the other hand, the learned counsel for the respondents supported the award passed by the Claims Tribunal and opposed any further enhancement. 8. Heard the learned counsel for the parties and perused the record. In order to substantiate his income, the claimant has produced income tax returns 6 from the assessment years 2001-2002 to 2009-2010 as Exhibits P.82 to Ex.P.89. The accident occurred on 16.7.2002. The gross income declared in the income tax returns for the year 2002-2003 in Ex.P.84 is Rs.7,07,291/-. The income tax paid thereon is Rs.2,52,563/-. But as the IT return is filed on 30.10.2002 i.e., about three months after the date of the accident it cannot be taken into account. The income shown in the IT return for 2002-2003 grossly mismatches in comparison with the other years. As the assessment order accepting the IT return is not produced, the annual income mentioned in Ex.P.84 cannot be accepted. 9. The income mentioned in the IT returns are as follows: Year I.T.(Rs) Gross income(Rs.) Ex.P.82 2001-2002 2,11,000 24,394 Ex.P.83 2003-2004 1,41,294 6,713 Ex.P.84 2002-2003 7,07,291 2,52,563 Ex.P.85 2005-2006 75,361 Nil Ex.P.86 2004-2005 63,652 Nil Ex.P.87 2007-2008 41,715 Nil Ex.P.88 2008-2009 54,957 Nil Ex.P.89 2009-2010 76,455 Nil Ex.P.90 2010-2011 retirement Nil 7 10. Therefore, the income for the assessment year 2001-2002 has to be taken into account in the facts of the case and in view of the reasons stated supra. Thus, the monthly income of the claimant would be Rs.17,500/- per month, which is taken into account while making assessment on account of loss of dependency. 11. In order to substantiate the disability suffered by the claimant, the disability certificate- Ex.P.92 issued on 6.8.2013 by Dr.Prathap Kumar Pani, a Neuro Surgeon is produced. It is stated therein that the claimant is (i) unable to concentrate on work and difficulties with doing work. (ii) Slurring of speech (iii) Left hearing problem (iv) Unable to close left eye properly and no tears in left eye (v) personality changes in terms of moved fluctuation and irritability (vi) Tremers in upper limb. 12. Dr. Prathap Kumar Pani, who was examined as PW-2 has stated the same in his oral evidence and 8 stated that the disabilities are permanent in nature and to an extent of 25%. It was elicited in the cross examination that the claimant can do his day to day works but it is difficult for him to do skilled work. It was also elicited that the claimant is not totally disabled from doing his duties and there is some chance of improvement by taking medicine continuously. PW3-Dr.S.U. Shivaprakash an ENT and Orthopedic Surgeon has spoken about the audiological disability of the claimant. Based on an evaluation report given by Dr. Mythili and on his examination, the audiological disability was assessed at 50%. 13. PW-4 Dr. P. Niranjan Murthy, another Orthopedic surgeon examined by the claimant has stated as follows in his affidavit evidence. “3. On examination he has antalgic gait with elbow crutch and knee brace for right leg. He has Grade II facial nerve palsy and all expressions left side of face are lost with deviation of angle of mouth. The right upper limb is short by 9 4 cm in its humeral component with gross wasting of all muscles in the arm and shoulder. The acromio clavicular joint is prominent while head and humerus has lost its contour. The limb is flaccid with weak muscles and unstable shoulder joint. There is tenderness over joint due to post traumatic periarthritis. The movements of right shoulder are grossly restricted; 1. Flexion --- 40 degree 2. Elevation --- 45 degree 3. Extension…. Nil 4. Power is 3/5 in shoulder and 4/5 in elbow. 4. The right lower limb has surgical scars on upper part of leg with lateral subluxation of knee joint. There is wasting of muscles involving Hamstrings Adductios, Quadriceps, Tibialis and Tendoachillis groups of muscles. The limb is 2 cm short in tibial component. There is partial loss of right iliac bone with tenderness in pelvis. Tenderness is present in knee and ankle. The knee joint is unstable 10 due to 4mm lateral shift of joint and also due to internal derangement. 5. Movements of knee are 70 degree flexion and 10 degree short of full extension. There is abnormal medial opening of joint with signs of subluxation. The ankle has no dorsiflexion and has exaggerated plantar flexion. Power is 3/5 in knee and ankle due to wasting of muscles. 6. X-ray of right shoulder shows one third of Humeral head including greater tubersity is absorbed. Remaining portion of Humeral head is deformed and is not articulating with Glenoid fossa. There is periarthritic changes in the joint. The leg shows old comminuted fracture of condylar part of tibia with lateral shift of knee joint and implants in bone. The fibula is united with over lapping of fragments. Osteoporosis of bones and absence of callus formation is noted. 7. Sri Prashant Badhekar has facial nerve paralysis and on AEM for post head injury complications. He has flaccid 11 right upper limb and shortening. He has shortening of right leg, unstable knee and unconsolidated painful fracture tibia. He is unable to walk without elbow crutch and knee brace. He is unable to bear weight on right leg., unable to squat and unable to lift any weights. He is unable to perform his work of Civil Engineer. 8. He has 50% disability in right upper limb, 60% disability in right leg and has 45% whole body disability.” 14. The disability of 50% to the right upper limb and 60% to the right lower limb and whole body disability of 45% is assessed by Dr. P. Niranjan Murthy. 15. The claimant is stated to be working as a Civil Engineer and was M.D. of a construction Company prior to the accident. It is stated that after the accident, he was constrained to resign from the partnership firm, as he was unable to work as earlier. Exhibit P.90 is produced to substantiate the statement. 12 The disabilities noted would definitely affect the normal functioning of a normal person. They would affect a professional with added gravity. Since the claimant was working as a Civil Engineer, the disability suffered by him would definitely be more than 50% assessed by the Claims Tribunal. Hence, it is taken at 75%. Since the claimant was aged about 40 years on the date of the accident, the proper multiplier would be 15. Therefore, the loss of future earnings would be Rs.17,500 X 75% X 12 X 15 = Rs.23,62,500/-. The same is awarded to the claimant towards loss of future earnings. 16. In view of the above analysis, a proportionate increase in loss of income during laid-up period is required to be made. For six months laid–up period, a sum of Rs.1,05,000/- is awarded towards loss of income during laid-up period. The compensation awarded under the remaining heads namely, pain and suffering, medical expenses, future medical expenses, 13 loss of expectation in life and loss of amenities being commensurate to the injuries/disability suffered, do not call for any interference. To the extent stated above, the award is modified. The claimant would also be entitled to interest on the enhanced compensation at the rate of 6% p.a. from the date of the claim petition till the payment is made. Accordingly, the appeal is disposed of. Sd/- JUDGE Sd/- JUDGE BVK "