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2014 DIGILAW 404 (KAR)

B. N. Dhananjaya v. K. R. Suresh Kumar

2014-03-26

N.K.PATIL, PRADEEP D.WAINGANKAR

body2014
Judgment : 1. These two appeals by the claimant/injured and by the Insurer are directed against the same impugned judgment and award dated 20/ 12/2010 passed in MVC No. 9027/2009, by the XVI Additional Judge and Motor Accident Claims Tribunal, Bangalore City (SCCH-14), (hereinafter referred to as ' Tribunal' for short) 2. The Tribunal, by its impugned judgment and award, has awarded a sum of Rs.10,19,000/- under different heads with interest at 6% p.a., excluding interest on the future medical expenses from the date of petition till the date of realization, as against the claim of Rs.50,00,000/-, on account of the injuries sustained by the claimant in the road traffic accident. The claimant has filed an appeal for enhancement, on the ground that, the compensation awarded is inadequate and the Insurer has filed an appeal for reduction of compensation, on the ground that the compensation awarded by the Tribunal is on higher side. 3. In brief, the facts of the case are: The claimant was aged about 25 years at the time of the accident. He was hale and healthy prior to the accident and driver cum owner of Tata Ace goods tempo bearing Reg.No.KA.07.8215. That on 20.10.2009 at about 6.30 p.m. claimant being the driver cum owner of Tata Ace goods tempo bearing No.KA.07.8215 was going towards his village Bandahalli from Chintamani and when he reached near Oolavadi cross on Chintamani-Madanapalli road, at that time, the driver of Tata Indica car bearing No.KA.03.MD.4297 came from opposite direction in a rash and negligent manner en wrong side of the road and dashed against his vehicle. Due to which, the said vehicle got turtle and he sustained grievous injuries. Immediately, he was shifted to Government Hospital, Chintamani and after first aid, he was referred to Sanjay Gandhi Hospital, Bangalore and due to crush injury to his right hand, there was an auto amputation of right upper limb. For that, he has taken treatment at Sanjay Gandhi Hospital, Bangalore, as inpatient from 20.10.2009 to 6.11.2009, undergone surgery and from 25.5.2010 to 2.6.2010 undergone second surgery. Thereafter, he has taken bed rest and follow up treatment. 4. It is the further case of the claimant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the clamant in the said accident, he has suffered permanent disability. Thereafter, he has taken bed rest and follow up treatment. 4. It is the further case of the claimant that, he spent considerable amount towards medical expenses, conveyance and other incidental charges. On account of the injuries sustained by the clamant in the said accident, he has suffered permanent disability. The Doctor has opined that be is suffering from 80% permanent physics disability and 100% functional disability with regard to his avocation. Therefore, claimant has filed a claim petition before the Tribunal under Section 166 of M.V. Act, claiming compensation against the driver, owner and Insurer of the offending vehicle. 5. The said claim petition had come up for consideration before the Tribunal. The Tribunal, after hearing both sides and after assessing the oral and documentary evidence, has allowed the said claim petition in part and awarded a sum Rs.10,19,000/- as compensation under different heads with interest at 6% p.a., excluding the amount awarded towards future medical expenses, from the date of petition till the date of realization. 6. Being aggrieved by the said judgment and award passed by the Tribunal, both the claimant and the insurer have presented these appeals seeking appropriate reliefs as stated supra. 7. We have heard the learned counsel appearing for claimant and learned counsel appearing for Insurer. 8. The submission of the learned counsel appearing for the claimant at the outset is that, the Tribunal has committed an error in not awarding reasonable compensation towards injury, pain and sufferings, towards loss of amenities, discomforts and unhappiness and towards loss of future income. To substantiate the said submission, he submitted that claimant is aged between 23 to 25 years, driver- cum-owner of a goods vehicle and in the accident, he sustained crush injury and his right hand below shoulder has been amputated and on account of which, he is not in a position to continue his profession as driver and he has to suffer discomfort and unhappiness through out his life and it would affect his future prospects. But these aspects have not been considered or appreciated by the Tribunal while awarding compensation. Further, he submits that claimant suffers from 80% physical disability and 100% functional disability as per the evidence of the Doctor, but the Tribunal has erred in assessing the disability at 50%. But these aspects have not been considered or appreciated by the Tribunal while awarding compensation. Further, he submits that claimant suffers from 80% physical disability and 100% functional disability as per the evidence of the Doctor, but the Tribunal has erred in assessing the disability at 50%. Therefore, he submitted that the impugned judgment and award passed by the Tribunal is liable to be modified by enhancing the compensation reasonably. 9. Per contra, learned counsel Sri.A.N.Krishna Swamy, appearing for the Insurer, submitted that the Tribunal has erred in awarding higher compensation towards loss of future income assessing 50% disability and therefore, it is liable to be reduced. Further, he submits that, for want of territorial jurisdiction, the claim petition is not maintainable and is liable to be dismissed by setting aside the impugned judgment and award passed by the Tribunal. 10. In reply, learned counsel appearing for the claimant submitted that, the submission of the learned counsel appearing for Insurer regarding territorial jurisdiction cannot be accepted and is liable to be set aside, on the ground that, the said ground has not been taken by the Insurer at the time of filing objection to the petition and urging the same for the first time in the appeal is not sustainable. To substantiate the said submission, he submitted that, the Division Bench of Circuit Bench of this Court at Gulbarga, in the case of Subhadra and others Vs. Pankaj and another reported in ILR 2013 Karnataka 102, has observed at para-10 as under: "10. Our attention was also invited to the judgment of the Supreme Court in HARSHAD CHIMAN LAL MODI vs. D.L.F. UNIVERSAL LTD. AND ANOTHER by Mr. Babu, H. Metagudda. We have perused this judgment. In fact, this judgment would help the Insurance Company which had taken, at earliest possible opportunity, the objection as to territorial jurisdiction. The Supreme Court in that case after considering the provisions of Section 21 observed that the objection as to territorial jurisdiction of the Court should be taken at earliest possible opportunity and in any case at or before settlement of issues." Further, he submitted relying on the judgment of the Supreme Court in the case of Harshad Chiman Lal Modi Vs. D.L.F. Universal Ltd., and another reported in AIR 2005 SC 4446 that, in para-28, the Hon'ble Supreme Court has held as under: "28. We are unable to uphold the contention. D.L.F. Universal Ltd., and another reported in AIR 2005 SC 4446 that, in para-28, the Hon'ble Supreme Court has held as under: "28. We are unable to uphold the contention. The jurisdiction of a court may be classified into several categories. The important categories are (i) Territorial or local jurisdiction; (ii) Pecuniary jurisdiction; and (iii) Jurisdiction over the subject matter. So far as territorial and pecuniary jurisdictions are concerned objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is nullity." Therefore, he submitted that, the objection as to territorial jurisdiction of the Court should be taken at earliest possible opportunity and in any case at or before settlement of issues. But, in the instant case, such stand has not been taken by the Insurer in its objection before settling the issues and taking such a stand in the appeal is not sustainable and is liable to be rejected at threshold with cost. 11. After careful consideration of the submissions made by learned counsel appearing for both the parties and after perusal of the materials available on record, including the impugned judgment and award passed by the Tribunal, the only point that arises for our consideration is : Whether the quantum of compensation awarded by the Tribunal is just and reasonable? 12. The occurrence of the accident and the resultant injuries sustained by the claimant as per Ex.P5 are not in dispute. It is also not in dispute that, claimant is aged between 23 to 25 years as on the date of the accident and he was hale and healthy prior to the accident and by profession he was a heavy vehicle driver and on account of the injuries sustained by him in the accident, his right hand was amputated below shoulder. It is also not in dispute that, claimant is aged between 23 to 25 years as on the date of the accident and he was hale and healthy prior to the accident and by profession he was a heavy vehicle driver and on account of the injuries sustained by him in the accident, his right hand was amputated below shoulder. PW2- Doctor, who has treated the claimant has opined that he is suffering from 80% permanent physical disability and 100% functional disability with regard to his avocation. Taking into consideration the nature of injuries sustained by the claimant and since there is amputation of right hand below shoulder, we re-assess the permanent disability at 60% instead of 50% as assessed by the Tribunal to meet the end of justice. However, the Tribunal has justified in assessing the income of the claimant at Rs.6,000/- per month and we accept the same. The proper multiplier applicable is 18 as rightly adopted by the Tribunal and we accept the same. 13. The Tribunal ought to have taken into consideration the amount of pain and agony undergone by the claimant during the period of treatment as he has undergone two surgeries on different occasions while awarding compensation. We presume that, claimant might have taken bed rest and follow up treatment atleast for six months, during the said period, he might have incurred financial loss, as he could not have attended his work. Discomforts and unhappiness persists though out his life and due to which, he would not in a position to do his work as driver of goods vehicle and he must hire the driver to drive his Tata Ace goods vehicle and that has to be compensated by awarding reasonable compensation towards loss of future income. Taking all these aspects into consideration, we award a sum of Rs.1,50,000/- towards injury pain and sufferings instead of Rs.1,00,000/-, Rs.36,000/- towards loss of income during the period of treatment for six months at the rate of Rs.6,000/- per month as against Rs.60,000/-, Rs.1,00,000/-towards loss of amenities, discomforts and unhappiness as against Rs.65,000/-, Rs.7,77,600/- (6,000/-x 12 x 18 x 60%) towards loss of future income as against Rs.6,48,000/- awarded by the Tribunal. 14. 14. However, the Tribunal has justified in awarding a sum of Rs.16,000/-towards medical expenses as per medical bills produced, Rs.30,000/- towards conveyance, nourishing food and attendant charges, Rs.50,000/-towards loss of marriage prospects and Rs.50,000/- towards future medical expenses, including fixation of prosthesis and therefore, it does not call for interference. In all, the claimant is entitled to the total compensation of Rs.12,09,600/- instead of Rs.10,19,000/- and the break-up is as follows: Towards pain and sufferings Rs. 1,50,000/- Towards medical expenses Rs. 16,000/- Towards conveyance, nourishing food and attendant Charges Rs. 30,000/- Towards loss of income during the period of treatment Rs. 36,000/- Toward loss of amenities Rs. 1,00,000/- Towards loss of future earnings Rs. 7,77,600/- Towards future medical expenses, including purchase of artificial limb Rs. 50,000/- Towards loss of marriage prospects Rs. 50,000/- Total Rs.12,09,600/- 15. The submission of the learned counsel appearing for Insurer regarding territorial jurisdiction that, accident had occurred in Kolar, claimant is the resident of Kolar and therefore, claimant cannot maintain claim petition before the MACT, Bangalore and therefore, petition is liable to be dismissed cannot be accepted and is liable to be rejected as rightly pointed out by the learned counsel appearing for claimant placing reliance on the decision of this Court as cited supra. There is no dispute or quarrel with regard to the law laid down by the Division Bench of this Court in the aforesaid case. But the ratio of the said decision cannot be made applicable to the facts and circumstances of the case as pointed out by the learned counsel for claimant. To substantiate his submission, learned counsel appearing for claimant has taken us through para-10 of the said judgment. We have perused the said judgment. In fact, the said judgment is helpful to the insurance company if it has taken, at earliest possible opportunity, the objection as to territorial jurisdiction. The Supreme Court, in that case, after considering the provisions of Section 21 observed that the objection as to territorial jurisdiction of the Court should be taken at earliest possible opportunity and in any case at 01 before settlement of issues. But in the instant case, after careful perusal of the objections filed by the insurer, it emerges that, insurer has not taken any ground regarding territorial jurisdiction at earliest possible opportunity and at or before settlement of issues. But in the instant case, after careful perusal of the objections filed by the insurer, it emerges that, insurer has not taken any ground regarding territorial jurisdiction at earliest possible opportunity and at or before settlement of issues. Therefore, the submission of the learned counsel appearing for the insurer cannot be accepted, in view of the well settled law laid down by the Apex Court and this Court since, the said ground is taken for the first time in the appeal and is liable to be rejected at threshold and accordingly, it is rejected. 16. Having regard to the facts and circumstances of the case, the appeal filed by the claimant is allowed in part and the appeal filed by the Insurer is dismissed as devoid of merits. The impugned judgment and award dated 20/12/2010 passed in MVC No. 9027/2009, by the XVI Additional Judge and Motor Accident Claims Tribunal, Bangalore City fSCCH-I4), stands modified, awarding the compensation of Rs.12,09,600/- instead of Rs.10,19,000/- as awarded by the Tribunal. There would be an enhancement of Rs.1,90,600/- with interest at 6% p.a., from the date of petition till its realization. The Insurer is directed to deposit the enhanced compensation of Rs.1,90,600/-with interest at 6% p.a., from the date of petition till the date of realization, within three weeks from the date of receipt of a copy of this judgment and award. Immediately on such deposit by the Insurer, out of the enhanced compensation of Rs.1,90,600/-, a sum of Rs.1,00,000/- with proportionate interest shall be invested in the Fixed Deposit in any Nationalized or Scheduled Bank in the name of the claimant for a period of 10 years and renewable by another 10 years, with liberty reserved to him to withdraw the interest accrued on it, periodically. The remaining sum of Rs.90,600/- with proportionate interest shall be released in favour of the claimant, immediately. The amount deposited by the Insurer shall be transmitted to the jurisdictional Tribunal, forthwith. Draw the award, accordingly.