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2010 DIGILAW 1116 (KAR)

Oriental Insurance v. Lakshmi Bai

2010-10-27

ARALI NAGARAJ

body2010
Judgment :- This appeal is by the Insurance Company with which the motor cycle bearing registration No.KA 06-K-3902 involved in the accident that occurred on 21.02.2002 was insured. The Addl. MACT, Madhugiri, District Tumkur (hereinafter referred to as ‘Claims Tribunal’ for short) by its impugned Judgment and Award dated 24.03.2005 passed in MVC No.546/2002 has awarded in favour of the respondent-claimant, a total compensation of Rs.2,09,150/- with interest thereon at the rate of 8% per annum from the date of petition till the date of actual payment payable by the appellant insurer. The appellant-insurer has challenged in this appeal this quantum of compensation awarded in favour of the respondent-claimant. 2. Though this matter is listed today for admission, having regard to the nature of the award and other facts and circumstances of the case, it is taken for final disposal and arguments of Sri.Arun Ponnappa, learned Counsel for the appellant insurer are heard. The first respondent, the claimant before the Claims Tribunal, has remained absent despite receipt of notice of this appeal. Notice to respondent No.2, the owner of the said motor cycle, has been dispensed with. Perused the impugned Judgment and Award. 3. Sri.Arun Ponnappa, learned Counsel for the appellant insurer strongly contends that the Claims Tribunal committed serious error in awarding a sum of Rs.1,22,400/-towards loss of future income/reduction in earning capacity of the claimant by taking 20% disability despite there being the evidence of PW2, the doctor who examined the claimant and assessed disability, that as a result of the injuries sustained by the claimant in the said accident, she has suffered disability to the extent of 10% to 12% in respect of her whole body and therefore, the said amount of compensation deserves to be reduced. He further contends that the Claims Tribunal committed another error in awarding interest at the rate of 8% per annum on the total amount of compensation, despite the law being settled that in such cases, interest cannot be awarded at a rate higher than 6% per annum. 4. He further contends that the Claims Tribunal committed another error in awarding interest at the rate of 8% per annum on the total amount of compensation, despite the law being settled that in such cases, interest cannot be awarded at a rate higher than 6% per annum. 4. The Claimant has established, through her own evidence as PW1 and also through the evidence of PW2 Dr.A Nanjundappa, the Orthopedic surgeon, District Hospital, Tumkur that she was examined by the said doctor on 27.12.2004 for assessing permanent physical disability suffered by her and that, as a result of the said accident, she sustained fractures of both the tibia and fibula of her right leg and consequently, she has become permanently disabled. PW2 doctor has stated in his evidence that during his clinical examination, he found on the person of the injured claimant i) wasting of the right leg by 1 cm, ii) wasting of right thigh by 1cm and iii) restriction in the movements of right knee to the extent of 20 degrees. This doctor has further deposed in his examination-in-chief that as a result of the said injuries, the claimant has suffered physical disability to the extent of 30% in respect of her right lower limb and 10% to 12% in respect of the whole body with the result, she cannot do stone breaking work, cannot stand on her right leg for a long time, cannot walk long distance and cannot squat and sit cross legged. He has also deposed that she requires one more surgery for removal of the implant fixed inside her right leg for which she may have to spend about Rs.16,000/-. 5. PW1 claimant has stated in her evidence that as a result of the said fracture to her right leg, she is not able to stand for a long time on her right leg, not able to walk long distance, not able to squat and sit cross legged. She has also deposed that earlier to the accident, she was doing stone breaking work and was earning Rs.100/- per day, but, after the accident, by reason of the said injury, she has not been able to do the said stone breaking work. 6. She has also deposed that earlier to the accident, she was doing stone breaking work and was earning Rs.100/- per day, but, after the accident, by reason of the said injury, she has not been able to do the said stone breaking work. 6. The above evidence of PW1 claimant and that of PW2 doctor has remained unchallenged inasmuch as, though both of them are cross examined on behalf of the insurance company, nothing is brought on record to disbelieve the same. She has denied in her cross examination all the suggestions put to her on behalf of the insurer. Therefore, the Claims Tribunal rightly believed her evidence. 7. It is well settled that in cases of personal injuries of serious nature resulting in permanent disability, while determining the loss of future income or reduction in earning capacity of the injured in terms of money, besides the nature and extent of physical disability, the effect of such disability on his/her earning capacity has to be considered. The Division bench of this court has observed in the case of K Narasimha Murthy Vs The manager, Oriental Insurance Company Limited, Bangalore and another reported in 2004(3) KLJ 288 (DB) as “if a person is disabled for work he was doing before accident and has no skill or talent for any other work, loss of earning capacity has to be taken as 100% and he has to be compensated on the basis of total loss………….” 8. Further, it is also observed by this Court in the case of R Venkatesh Vs P.Saravanan reported in 2002 ACJ 1743 , at para No.9 of the judgment as under: para 9. “As a result of amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100%.” [Emphasis supplied by me] 9. He has no education. In such cases, it is well settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100%.” [Emphasis supplied by me] 9. Thus, it is clear from the above observations of this Court in the above said decisions that the extent of reduction in earning capacity of the injured claimant has to be assessed with respect to his/her avocation earlier to the accident. The extent of reduction in earning capacity of the injured claimant as a result of permanent physical disability suffered by him/her need not always be the same as, or proposition to, the physical disability in respect of his/her whole body as opined by the doctor. Therefore, I am of the considered opinion that in view of the undisputed fact that as a result of fracture of both the bones of her right leg, the claimant, who was doing stone breaking earlier to the accident, has become unfit to do the same work. Besides this, admittedly she, being an unskilled labourer, could not do any work other than manual labour which she cannot do now by reason of this physical disability. Therefore, there has been considerable reduction in her earning capacity. This being so, the contention of the learned Counsel for the appellant-insurance company that the Claims Tribunal should have taken the functional/economic disability at 10% to 12% in view of the evidence of PW2 the doctor that the claimant has suffered that much of disability (10% to 12%) in respect of her whole body cannot be accepted. Having regard to all these facts and following the above observations of this Court in the said case, I am of the considered opinion that the Claims Tribunal ought to have taken atleast 40% of physical disability in determining the compensation to be awarded under the head ‘loss of future income/reduction in her earning capacity’. 10. Having regard to all these facts and following the above observations of this Court in the said case, I am of the considered opinion that the Claims Tribunal ought to have taken atleast 40% of physical disability in determining the compensation to be awarded under the head ‘loss of future income/reduction in her earning capacity’. 10. It is well settled that even if the claimant does not prefer any appeal of his/her own and even if the claimant does not prefer to file any cross objections to the appeal of the insurer, if the quantum of compensation awarded by the Claims Tribunal is challenged in such an appeal, the appellate court, in exercise of its discretionary powers under Order 41 Rule 33 CPC can award adequate compensation to the claimant by enhancing the compensation awarded under the impugned Judgment and Award. 11. Having regard to the nature of the injuries sustained, the nature and extent of physical disability and its effect on earning capacity of the claimant, I am of the opinion that it is a fit case to exercise the discretionary powers of the appellate Court under Order 41 Rule 33 CPC and thereby do complete justice to the respondent-injured claimant. In this regard, I may refer to the decision of the Hon’ble Supreme Court in the case of Delhi Electricity Supply undertaking Vs Basanthidevi reported in AIR 2000 SC 43 , wherein it has observed, at para 18 of its judgment, as under: para 18. “This provision was explained by this Court in Mahant Dhangir V.Madan Mohan, 1987 Supp SCC 528: ( AIR 1988 SC 54 ) in the following words (at P.58 of AIR): “The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and corespondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require. The words “as the case may require” used in Rule 33 of Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The words “as the case may require” used in Rule 33 of Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we would see, may be these: That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate Court could consider any objection against any Court. It may be urged by any party to the appeal. It is true that the power of the appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities.” 12. Further, the Division Bench of this Court in the case of Oriental Insurance company Ltd., Vs Akkayamma and Others reported in ILR 2009 Kar 24, has observed that even if no appeal is filed by the claimant seeking enhancement in the compensation and no cross objection is filed in the appeal filed by the insurer seeking reduction in the amount of compensation, the appellate Court, exercising its discretionary power under Order 41 Rule 33, can pass any order to render complete justice between the parties. It is observed by the Bench at para 9 of the Judgment in the said case as under: para 9: “The learned Counsel appearing for the respondent Nos.1 to 6 who are the claimants in the court below contended that though the claimants have not filed any cross objections or independent appeal, since the tribunal has committed serious error of law and procedure, while computing the loss of dependency by not taking the gross salary as reflected in the salary certificate at Ex.P8, and has erroneously applied split multiplier method, this Court in exercise of its power under order 41 Rule 33 CPC should grant the relief which ought to have been granted by the tribunal, as in a claim arising under Motor Vehicles Act, the Tribunal is required to award just and reasonable compensation. 13. 13. Following the observation of Hon’ble Supreme Court and of this Court in the above said cases, I am of the considered opinion that though the respondent-claimant has not filed her own appeal or cross objection to this appeal, she is entitled to enhanced amount of compensation in view of undisputed facts of the case as stated supra. Therefore, I hereby award in favour of the claimant (respondent herein), an additional amount of Rs.1,22,400/- under the head ‘loss of future income/reduction in earning capacity’ by taking functional/economic disability of the claimant at 40% as against 20% which is taken by the Claims Tribunal. Thus, the claimant shall be entitled to additional compensation of Rs.1,22,400/- over and above what has been awarded by the Claims Tribunal in the impugned award. 14. The Claims Tribunal has awarded interest at the rate of 8% per annum. As rightly submitted by the learned Counsel for the appellant-insurance company this rate of interest deserves to be reduced to 6%. It is reduced accordingly. Thus, the claimant shall be entitled to interest only at the rate of 6% per annum, but not at the rate of 8% per annum as awarded by the Claims Tribunal. 15. In the result and for the aforesaid reasons, the Claimant (respondent No.1 herein) shall be entitled to additional amount of compensation of Rs.1,22,400/- over and above what is awarded by the Claims Tribunal with interest at 6% per annum, as against 8% per annum awarded by the Claims Tribunal, on the entire amount of compensation, from the date of petition till the date of actual payment. A sum of Rs.1,00,000/- from out of the amount of enhanced compensation shall be kept in a Fixed Deposit Account in the name of the claimant with any of the Nationalised Bank of her choice for a period of 10 years with a direction to the Banker to pay to her interest accrued thereon once in every month after the expiry of first five years of the deposit. The Banker shall be further directed that the said amount of deposit or any part thereof shall not be permitted to be withdrawn nor any loan shall be permitted to be raised thereon without the permission of the Claims Tribunal. The Banker shall be further directed that the said amount of deposit or any part thereof shall not be permitted to be withdrawn nor any loan shall be permitted to be raised thereon without the permission of the Claims Tribunal. Balance of the enhanced amount of compensation, interest accrued thereon shall be paid to her alongwith the amount payable to her in terms of the impugned Award. Other portion of the impugned Award is left undisturbed. The appellant-insurer shall deposit with the Claims Tribunal the balance amount of compensation in terms of modified award within 8 weeks from the date of modified award. The present appeal stands disposed of in the above terms. No order as to costs in this appeal. Award shall be modified accordingly. A copy of this Judgment and modified Award shall be sent forthwith to the respondent-claimant as she is not represented by her counsel in this appeal. After the deposit is made by the insurer, the Claims Tribunal shall cause a notice issued to the claimant, secure her presence and pay to her such portion of the compensation amount as she would be entitled to receive in terms of the award as modified in this appeal.