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2020 DIGILAW 1296 (KAR)

Manager, New India Assurance Co. Ltd. v. Mallappa

2020-07-01

S.G.PANDIT, V.SRISHANANDA

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JUDGMENT V. Srishananda, J. - Both these appeals are arising out of one and the same judgment and award dated 20.11.2014 in MVC No.1287 of 2014 on the file of the Presiding Officer, Fast Track Court, IIAddl. MACT, Belagavi (for short "the tribunal"). 2. The germane facts necessary for disposal of the appeals are as under:- It is contended in the claim petition that on 11.04.2014 at about 8:15 p.m. on Belgaum-Vengural Road at Shionoli, the rider of the motorcycle bearing No.KA-22/EC-4758 belonging to Ramling K.Patil, ridden the same in a rash and negligent manner and dashed against the bicycle, which was ridden by the petitionerclaimant, resulting in grievous injuries to his head as well fractures. It is his case that he took treatment in different hospitals, surgeries were also conducted and implants were fixed. Therefore, he laid the claim through his guardian and wife Smt.Laxmi, he was not in a position to understand wordily things. 3. On issuance of notice, first respondent appeared and filed written statement, wherein he admitted that he is the owner of the motorcycle bearing No.KA-22/EC-4758, but denied all other petition averments. Second respondent - Insurance Company admitted the insurance policy, but denied other petition averments. 4. Based on the rival contentions, the tribunal raised the following issues: "1. Whether the petitioner proves that on 11.04.2014, at 8:15 p.m. on Belguam0Vengural Road, in front of DVS Company at Shionoli B.K., the petitioner sustained injuries due to the rash, or negligent, riding of the vehicle bearing registration No.KA-22/EC-5746, by its rider? 2. Whether the petitioner is entitled to for compensation? If so, what amount and from whom? 3. What order?" 5. In order to prove the issues, the wife/guardian of the injured got examined herself as PW1 reiterating the petition averments and on behalf of the claimants, 17 documents were produced, which are marked as Exs.P1 to P17. The Doctor, Psychiatrist was examined as PW2 on behalf of the claimant to establish the fact that the petitioner is suffering from mental disability. He has also issued disability certificate, wherein he has mentioned that there is a disability to an extent of 60% to 65% to the whole body. 6. On behalf of the respondents no oral evidence was adduced and no documents were also produced. 7. The Tribunal, after cumulative consideration of oral and documentary evidence on record, answered the above issues in favour of claimants. 6. On behalf of the respondents no oral evidence was adduced and no documents were also produced. 7. The Tribunal, after cumulative consideration of oral and documentary evidence on record, answered the above issues in favour of claimants. It is that judgment, which is under challenge both by the claimant as well as the Insurance Company. 8. Learned counsel for the Insurance Company vehemently contended that the quantum of compensation awarded by the tribunal is on the higher side. He further contended that the tribunal has ordered a sum of Rs.2,00,000/- towards future attendant charges without there being proper basis and the same needs to be reduced. 9. Shri G.N.Raichur, learned counsel also contended that the tribunal erred in arriving at a finding that it is the rider of the motorcycle is responsible for the accident, who has negligently ridden the motorcycle, which is resulted in the accident. It is further contended that the tribunal erred in assessing the disability at 100% even though the disability certificate itself speaks that there was a disability to an extent of 60% to 65% to the whole body. He further argued that even the disability certificate as is issued by PW2 cannot be accepted as he is not a treating Doctor. He further contended that the tribunal has ordered a sum of Rs.2,00,000/- towards future attendant charges without there being any proper basis and the same needs to be reduced. Therefore, he sought for allowing the appeal. 10. Per contra, the learned counsel for the claimant vehemently contended that the tribunal has not assessed the monthly income properly. It is also his case that the tribunal has rightly adjudged the disability to 100% as the injured is unable to understand warily things and PW2 has specifically deposed so before the Court. He further contended that the tribunal was justified in holding that it is the rider of the motorcycle, who is responsible for the accident. Therefore, he sought for allowing his appeal by seeking enhancement of compensation and sought for dismissal of the appeal filed by the Insurance Company. 11. In view of the rival contentions, the following points that would arise for our consideration: (i) Whether the Insurance Company proves that the accident is occurred on account of the negligence of the rider of the bicycle (injured claimant)? (ii) Whether the monthly income as assessed by the tribunal is proper and correct? 11. In view of the rival contentions, the following points that would arise for our consideration: (i) Whether the Insurance Company proves that the accident is occurred on account of the negligence of the rider of the bicycle (injured claimant)? (ii) Whether the monthly income as assessed by the tribunal is proper and correct? (iii) Whether the tribunal was justified in taking 100% disability even though in the disability certificate it is mentioned that the injured as suffered disability to an extent of 60% to 65%? We answer all points in the negative for the following REASONS 12. As could be seen from the records, the rider of the motorcycle has been charge sheeted. Charge sheet has not been challenged by the rider of the motorcycle or the Insurance Company. No spot sketch is available in records, whereby the contention of the learned counsel for the Insurance Company can be appreciated. 13. There is no evidence on the part of the respondents to prove that the accident has occurred on account of the negligence on the part of the rider of the bicycle, injured. The rider of the motorcycle is the best person to throw light as to cause for accident and who is responsible for accident. For the reasons best known to respondents, no such evidence is placed on record. In the circumstance, on cumulative consideration of the Police records as well as the oral testimony of PW1, the tribunal has recorded a finding that the accident has occurred on account of the negligence of the rider of the motorcycle. The same does not call for any interference by this Court especially in the absence of any contra evidence placed on record. Hence, point No.1 is answered in the negative. 14. According to PW1, the injured was doing job of watchman and also agriculture and having monthly income of Rs.10,000/-, the tribunal found that no material is placed before it to come to a conclusion that he was earning Rs.10,000/- as income in the absence of plausible evidence placed on record and the tribunal notionally assessed the monthly income of the injured at Rs.6,500/-. 15. The accident has occurred in the year 2014, this Court and the Lok Adalaths for the accidental claims of 2014 consistently assessed the monthly income at Rs.7,500/- notionally, where there is no formal proof of monthly income. 15. The accident has occurred in the year 2014, this Court and the Lok Adalaths for the accidental claims of 2014 consistently assessed the monthly income at Rs.7,500/- notionally, where there is no formal proof of monthly income. Hence, we propose to assess monthly income at Rs.7,500/- notionally in the present case also to award compensation towards loss of future income. Hence, the claimant would be entitled to the compensation towards loss of future income of Rs.4,86,000/- (Rs.7,500/- x 12 x 9 x 60%). 16. Learned counsel for the Insurance Company vehemently contended that the tribunal erred in taking 100% disability, but the disability certificate itself speaks that the injured suffered disability to an extent of 60% to 65%. He also points out that PW2 is not the treating Doctor and therefore, the disability should have been taken at 1/3rd of what is stated in Ex.P13. We found some force in the arguments put forth on behalf of the Insurance Company. 17. In para-17 of the impugned judgment, the tribunal has dealt with the question of disability factor to be taken in the present case. For reference, para-17 of the impugned judgment is called out hereinunder: "17. Eventhough in the order sheet it is not noted the tribunal has observed physical and mental conditions of the petitioner who was brought to the tribunal on 6.11.2014. Considering all these aspects and relying the principles of the ruling SC ( Rajkumar vs. Ajaykumar, (2011) ACJ 1 ), the tribunal presumes the functional disability relating to the petitioner at 100%. Therefore, the petitioner is entitled to compensation under head of future loss of income at (Rs.6,500/- x 12 = 78,000/- x multiplier 9 = 7,02,000/- x 100%) = 7,02,000/-." 18. From the bare reading of para-17, we are unable to accept the reasoning recorded by the tribunal to take 100% disability when the disability certificate itself speaks that the disability of the injured to an extent of 60% to 65%. 19. We also note that if the tribunal was not satisfied with disability factor as is mentioned in the disability certificate, it was open for the tribunal to refer the matter to the Medical Board and to assess the disability factor. Instead of adopting such a procedure, the tribunal on its own proceeded to presume that there is 100% disability. 20. We also note that if the tribunal was not satisfied with disability factor as is mentioned in the disability certificate, it was open for the tribunal to refer the matter to the Medical Board and to assess the disability factor. Instead of adopting such a procedure, the tribunal on its own proceeded to presume that there is 100% disability. 20. It is needless to emphasise that the every finding recorded by a Court must be supported with proper reasoning. 21. In this regard, this Court places its reliance on the judgment of the Hon'ble Apex Court, in the case of Sandeep Khanuja v. Atul Dande, (2017) 3 SCC 351 , it is held at para Nos.13 and 14 as under: "13. In the last few years, law in this aspect has been straightened by this Court by removing certain cobwebs that had been created because of some divergent views on certain aspects. It is not even necessary to refer to all these cases. We find that the principle of determination of compensation in the case of permanent/partial disablement has been exhaustively dealt with after referring to the relevant case law on the subject in Raj Kumar V.Ajay Kumar in the following words : (SCC pp.348-50. paras 8-11) "Assessment of future loss of earnings due to permanent disability. 8. Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (the Disabilities Act, for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. 9. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%. 10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. 14. The crucial factor which has to be taken into consideration, thus, is to assess as to whether the permanent disability has any adverse effect on the earning capacity of the injured. . 22. Hence, we find that recording of 100% disability despite Ex.P13 mentions the disability to an extent of 60% to 65%, without there being any plausible reason whatsoever, cannot contended and needs to be interfered with. In absence of any further material on record to show the disability than what is told in disability certificate, we deem it appropriate to assess the disability at 60% in the present case. 23. So also the finding recorded by the tribunal that the claimants are entitled for a sum of Rs.2,00,000/- towards future attendant charges has no basis. In absence of any further material on record to show the disability than what is told in disability certificate, we deem it appropriate to assess the disability at 60% in the present case. 23. So also the finding recorded by the tribunal that the claimants are entitled for a sum of Rs.2,00,000/- towards future attendant charges has no basis. We are of the opinion that having regard to the nature of injuries, ordering Rs.1,00,000/- towards future attendant charges would meet the ends of justice. 24. In view of the foregoing discussions, the claimant would be entitled to the following modified compensation. Pain and suffering Rs.1,00,000/- Loss of future happiness and amenities Rs.2,00,000/- Loss of income during the treatment period Rs. 45,500/- Incidental charges Rs.49,000/- Medical expenses Rs.3,29,500/- Future attendant charges Rs.1,00,000/- Towards loss of future income Rs.4,86,000/- TOTAL Rs.13,10,000/- 25. Thus, the claimants would be entitled for total compensation of Rs.13,10,000/- as against Rs.16,26,000/- awarded by the Tribunal with interest at 9% per annum from the date of petition till the date of realization. Accordingly, we proceed to pass the following: ORDER (i) The appeals are allowed in part. (ii) The judgment and award of the Tribunal is modified to the extent that the claimants would be entitled for total compensation of Rs.13,10,000/- as against Rs.16,26,000/- awarded by the Tribunal with interest at the rate of 9% per annum from the date of petition till realization. (iii) The apportionment, deposit and disbursement shall be as ordered by the Tribunal in the same proportion. (iv) Draw the modified award accordingly.