Claimant can be entitled to an additional compensation in a case of 100% bodily injury: High Court of Karnataka

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY 2021 THE HON’BLE MR. JUSTICE ALOK ARADHE THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY M.F.A. NO.3861 OF 2016SRI. CHANDRA KUMAR AGED ABOUT 37 YEARS S O NARAYANASWAMY NO.16 2ND CROSS SUBRAMANYA LAYOUT RAMAMURTHY NAGAR BENGALURU 560016. R AT. NO.12 1ST CROSS MUTAMMA EXTENSION LAYOUT VIJINAPUR BENGALURU 16. SRI. SANJAN SHIVAJI KOLEKAR MAJOR S O SRI SHIVAJ KOLEKAR APT POST ZEDKEY TALUK BHIWANDI DISTRICT THANE MAHARASHTRA 421302 OWNER OF LORRY NO.MH 04 EY 4452). BY MR. R. SHASHIDHARA ADV. FOR R1 R2 SERVED) ... RESPONDENTS THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 11.04.2016 PASSED IN MVC NO.873 2014 ON THE FILE OF THE 13TH ADDITIONAL SMALL CAUSE JUDGE & MEMBER MACT BENGALURU AWARDING COMPENSATION OF RS.22 09 000 WITH INTEREST AT 9% P.A. FROM THE DATE OF PETITION TILL THE REALIZATION. THIS M.F.A. COMING ON FOR ORDERS THIS DAY ALOK ARADHE J. DELIVERED THE FOLLOWING: This appeal under Section 173(1) of the Motor Vehicles Act 1988has been filed by the insurance company against the judgment dated 11.04.2016 passed by the Motor Accident Claims Tribunal. Facts giving rise to the filing of the appeal briefly stated are that on 30.09.2013 at about 11.30 PM the claimant Chandra Kumar was driving a car bearing registration No.KA 01 AA 7252. When he reached near Madanayakanahalli Village a lorry bearing registration No.MH 04 EY 4452 which was being driven by its driver in a rash and negligent manner applied the brakes suddenly without giving any indications due to which the car driven by the claimant dashed against the lorry. As a result of the aforesaid accident the claimant sustained grievous injuries and was immediately shifted to Premier Sanjeevini Hospital T Dasarahalli where he was treated as inpatient. The claimant thereupon filed a petition under Section 166 of the Act inter alia on the ground that the accident took place on account of rash and negligent driving of the lorry by its driver in which the claimant sustained grievous injuries. It was pleaded that at the time of accident the claimant was aged about 35 years and was employed as a driver and was earning a sum of Rs.16 000 per month. It was also pleaded that the accident occurred due to the rash and negligent driving of the lorry by its driver and that on account of the injuries sustained by him in the accident the claimant is unable to work as normal and has lost his source of income. The insurance company filed written statement in which the mode and manner of the accident was denied. It was pleaded that the accident occurred due to the rash and negligent driving of the car by the claimant himself as the lorry was parked on the extreme left side of the road. It was also pleaded that the driver of the lorry did not hold a valid and effective driving license at the time of accident and that the liability of the insurance company if any would be subject to the terms and conditions of the insurance policy. The age avocation and income of the claimant was also denied and it was pleaded that the claim of the claimant is exorbitant and excessive. The Claims Tribunal on the basis of the pleadings of the parties framed the issues and recorded evidence. The claimant in order to prove his case examined himself as PW1 Dr.PN Prakashand Dr.Vasudha Kand got exhibited documents viz. Ex.P1 to Ex.P16. The insurance company Examined CK Suryaprakash Ikram Pasha RW2) and Jayaramaiah and got exhibited namely Ex.R1 to Ex.R4. The Claims Tribunal by the impugned judgment inter alia held that the accident took place on account of rash and negligent driving of the lorry as well as the car by their respective drivers to the extent of 80% and 20% respectively. It was further held that as a result of aforesaid accident the claimant sustained injuries and that claimant was entitled to a compensation of Rs.22 09 000 along with interest at the rate of 9% per annum. Being aggrieved this appeal has been filed. 6. Learned counsel insurance company submitted that the Tribunal erred in holding that the accident occurred on account of negligence of the driver of the lorry as well as the driver of the car to the extent of 80% and 20% respectively. It is further submitted that the Tribunal ought to have attributed negligence on the part of the claimant atleast to the extent of 50% as the offending lorry was parked on the left side of the road and the claimant failed to exercise care in noticing the parked lorry and in driving his car cautiously. In support of his aforesaid submission reliance has been placed on RAJ RANI Vs ORIENTAL INSURANCE CO. LTD 2009(13) SCC 654. It is also submitted that the Tribunal has awarded compensation for disability suffered by the claimant under the head of Permanent physical Impairment" as well as under the head Loss of Amenities" which would amount to the claimant receiving double benefit in respect of the disability suffered. It is also urged that the income of the claimant assessed by the Tribunal as well as the interest awarded by the Tribunal are on the higher side. 7. We have considered the submissions made by the learned counsel for the parties and have perused the record. The claimant who is an eye witness to the accident has stated in his evidence that the driver of the offending lorry suddenly applied the brakes without giving any indications thereby causing the accident. The claimant has produced Ex.P1 FIR and Complaint as well as Ex.P5 Chargesheet which have been filed against the driver of the lorry disclose that the driver of the lorry suddenly applied brakes and caused the accident. Ex.P3 Spot sketch indicates that the road is a 30 feet wide road and the offending lorry was located on the extreme left side of the road. Ex.P4 IMV report indicates that the car has sustained heavy damage to the front portion whereas the lorry has sustained slight damage to the rear portion. It is pertinent to note that the claimant in his pleading has stated that the lorry was parked on the road without any indications. The insurance company in order to prove its plea of contributory negligence that the lorry was parked on the left side of the road and the driver of the car negligently hit the hind side of the lorry has examined RW2 Ikram Pasha and RW3 Jayaramaiah. However no material inferences can be drawn from their statements. It is pertinent to note here that the insurance company has not examined the driver of the offending lorry or any other eye witness to prove its version of the manner of the accident. It is also pertinent to mention here that the insurance company neither in the pleadings nor through oral evidence has demonstrated that the lorry was parked with parking lights or other any form of indications. It is also apparent from the evidence on record suggests that the road was 30 feet wide and that the claimant has also contributed to the causing of the accident by failing to exercise due care in noticing the lorry which appears to have been parked on the left side of the road and also in driving the car in a rash and negligent manner as is evident from the damage sustained by the car as per Ex.P4 IMV Report. Therefore on the basis of the evidence on record and in view of the decision of the Supreme Court in RAJ RANI Supra we deem it appropriate to hold that the accident occurred on account of negligence of the driver of the lorry as well as the driver of the car equally to the extent of 50% each. 8. Now we may advert the quantum of compensation. The Tribunal has assessed the notional income of the deceased at Rs.9 000 per month. It is not in dispute that the claimant was a employed as a driver at the time of accident. No serious challenge has been made to the nature of his avocation in the pleadings as well as the his cross examination. Therefore the Tribunal has rightly assessed the income of the deceased at Rs.9 000 per month taking into account the age avocation and standard of living of the claimant. The claimant has suffered functional disability to the extent of 100% to the whole body. In view of the law laid down by the Supreme Court in PAPPU DEO YADAV VS NARESH KUMAR AND ORS AIR 2020 SC 4424 the claimant who is aged about 35 years is entitled to an addition of 40% to his income on account future prospects which would amount to Rs.12 600 per month. Therefore the compensation under the head loss of earning capacity is quantified at Rs.24 19 200 of the aforesaid compensation to the claimant. Since the accident is of the year 2014 the prevailing rate of interest for the year 2014 in respect of fixed deposits for one year in nationalized banks being 8% the aforesaid amounts of compensation shall carry interest at the rate of 8% from the date of filing of the petition till the realization of the amount of compensation. To the aforesaid extent the judgment passed by the Claims Tribunal is modified. The amount in deposit if any is ordered to be transmitted to the Tribunal for disbursement. In the result the appeal is disposed of. Sd Sd 

Summary: In respect of the disability suffered by the claimant for throughout his life, double compensation under ‘Permanent Physical Impairment’ and ‘Loss of Amenities and Comfort’ has twice been awarded by the tribunal earlier. In the matter of, The New India Assurance Co. Ltd vs. Sri, Chandra Kumar [M.F.A. NO.3861 OF 2016 (MV-I)], the insurance company was directed to pay the amount of compensation to the claimant for which they were held liable according to the established facts of negligence. The matter was addressed in the presence of The Hon’ble Mr. Justice Alok Aradhe and The Hon’ble Mr. Justice Nataraj Rangaswamy.  The petition was filed under Section 166 of the Motor Vehicles Act, 1988 on the ground that the accident took place due to rash and negligent driving of the lorry driver, due to which, the claimant suffered grievous injuries. The claimant was 35 years of age at the time and suffered a loss of income due to permanent disability. He was granted compensation under ‘Permanent Physical Impairment’ and ‘Loss of Amenities and Comfort’. The judgement of the Motor Accident Claims Tribunal was challenged by the insurance company, on the basis of the mode and manner of the accident. The company claimed that the accident occurred due to negligence of the claimant himself and that his claims were exaggerated. It was also pleaded that the driver of the lorry did not hold a valid driving license at the time of the accident hence the liability of the insurance company must be subject to terms and conditions of the insurance policy. The reports indicated that the car sustained heavy damage as compared to the damage caused to the lorry. The quantum of compensation was thus accessed based on the evidence and facts. It was established that both the parties were equally accountable for negligence in light of the view of the Supreme Court held in RAJ RANI Supra. However, the fact that the claimant suffered functional disability to the extent of 100% of the whole body, remained undisputed. In the view of Pappu Deo vs Naresh Kumar and Ors [AIR 2020], it was held that “the claimant is entitled to Rs.29,09,200/- in all as total compensation and the insurance company is directed to pay Rs.14,54,600/- (50%) of the aforesaid compensation to the claimant. Since the accident is of the year 2014, the prevailing rate of interest for the year 2014 in respect of fixed deposits for one year in nationalized banks being 8%, the aforesaid amounts of compensation shall carry interest at the rate of 8% from the date of filing of the petition till the realization of the amount of compensation.”  To the aforesaid extent, the judgement passed by the Claims Tribunal is modified. The amount in deposit, if any, is ordered to be transmitted to the Tribunal for disbursement. The matter was disposed thereof.   Click here to read judgement.