Sri Lakshmana Gowda B.N. vs The Oriental Insurance Co. Ltd.

2023 INSC 611 Non-Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4255 OF 2023 @ (SPECIAL LEAVE PETITION (CIVIL) NO.13736 OF 2019)

SRI LAKSHMANA GOWDA B.N. …APPELLANT(S)

VERSUS

THE ORIENTAL INSURANCE CO. LTD. CO. LTD. AND ANOTHER … RESPONDENT(S)

JUDGMENT

Aravind Kumar, J.

1. Leave granted. I.A. No.177122/2022 for production of

additional documents is allowed.

2. The claimant not being satisfied with the quantum of Signature Not Verified Digitally signed by NEETA SAPRA Date: 2023.07.07 16:17:57 IST Reason: compensation awarded by the Motor Vehicles Claims Tribunal in

M.V.C. No.914 of 2008 sought for enhancement by filing an Appeal 2

under Section 173(1) of the Motor Vehicles Act (for short “MV Act”)

in M.F.A. No.6365 of 2009 before the High Court of Karnataka,

whereunder the compensation of Rs.2,36.812/- awarded by the

Tribunal came to be affirmed and interest awarded @ 8% p.a. came to

be reduced to 6% p.a. by judgment dated 07.01.2019. Being aggrieved

by the same the present appeal has been filed.

3. We have heard the arguments of Mr. C.B. Gururaj, learned

counsel appearing for the appellant assisted by Mr. Prakash Ranjan

Nayak, Pramit Chhetri and Animesh Dube, Advocates and Mr. T.

Mahipal, learned counsel appearing for Respondent No.1, assisted by

Rohit K. Sinha. Perused the records.

4. The short point that arises for our consideration in this appeal

is:

(1) Whether the compensation awarded by the Tribunal, as affirmed by the High Court deserves to be affirmed or modified?

(2) What order ?

3

BRIEF BACKGROUND

5. The appellant/claimant met with a road accident on 22.12.2007

and as a result sustained injuries. For award of compensation claim

petition under Section 166 of MV Act came to be filed. The Insurer

contested the matter before the Tribunal and after trial, Tribunal

allowed the claim petition in part and awarded compensation of

Rs.2,36,812/- under the following heads:

Pain, Injuries and suffering Rs. 50,000/- Medical and incidental Rs.1,06,812/- Expenses Rs. 10,000/- Loss of earning during Rs. 10,000/- laid up period Permanent disability Rs. 40,000/- Loss of amenities in Rs. 20,000/- future life TOTAL Rs.2,36,812/-

6. As already noticed hereinabove, the claimant/appellant

challenged the afore-stated award of the Tribunal before the High

Court unsuccessfully. Hence this appeal.

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7. It is the contention of Shri C.B. Gururaj, learned counsel

appearing for the appellant that Tribunal committed a serious error in

awarding abysmally less compensation contrary to the evidence on

record. He would elaborate his submissions by contending that

Tribunal committed a serious error in construing the income of the

claimant at Rs.3,000/- p.m. though it was stated on oath that claimant

was aged 24 years on the date of accident and was a graduate, working

as a Marketing Executive in a private company and earning Rs.8,000/-

p.m. He would contend that Tribunal erred in not taking note of the

fact that permanent physical disability to the whole body was 48% as

per medical evidence and same had been completely ignored. Hence,

he prays for enhancement of compensation.

7.1 Per contra, Mr. T. Mahipal, learned counsel appearing for the

Insurer would support the judgment of the High Court and award

passed by the Tribunal and prays for dismissal of the appeal. 5

DISCUSSION AND FINDINGS:

8. The accident in question, claimant/appellant having sustained

injuries in the said accident, the offending vehicle having been insured

with 1st respondent, issuance of policy and same being in force as on

the date of the accident are not disputed. The claimant had sustained

multiple cranial fractures of C7 and D1 of right transverse process

and vertebral hemotoma, as is evident from Ex.P-7 Discharge

Summary. Medical record also reflected that claimant had sustained

contusion of right brachial plexis with right hemiplegia. The CT Scan

Ex.P-12 disclosed extradural haemotoma within right temporal region

and hemorrhagic contusions on the right temporal lobe. MRI of

cervical spine Ex.P-13 also disclosed contusion and edema within the

cord extending from C4 to C7. Claimant had also sustained fractures

involving zygomatic arch and squamous temporal bones. For

treatment claimant was hospitalized and initially admitted in ICU also.

It is in this background Tribunal has awarded compensation under

various heads as noticed hereinabove. In the background of injuries

sustained claimant was treated as an in-patient for ten (10) days. 6

Hence, we are of the view that compensation awarded towards ‘pain

and suffering’ is on the lower side. Having regard to the fact that

claimant remained in hospital for ten days and was also in continuous

treatment thereafter persuade us to award additional compensation

towards ‘pain and suffering’. Hence, we award Additional

Compensation of Rs.50,000/- under the head ‘pain and suffering’.

9. Claimant has contended that he was working as Marketing

Executive and earning salary of Rs.8,000/- p.m. To substantiate his

claim, he has produced salary certificate Ex.P-6. Though he has

deposed on oath that on account of the injuries sustained he has not

been able to discharge his normal duties or in other words he had

stopped working, he did not examine the employer nor produced

certificate or letter from the employer. For said reason it cannot be

presumed that claimant had not suffered any bodily disability at all. It

is in this background additional document filed along with I.A.

No.177122 of 2022 has to be looked into. A perusal of said document

would disclose the disability certificate and Identity Card has been

issued by the Directorate for the Empowerment of Differently Abled 7

and Senior Citizens, Bangalore in favour of the claimant and it has

been certified thereunder that overall permanent Physical impairment

of claimant is 75%. The affidavit accompanying the Interlocutory

Application would also indicate that claimant has lost sensation in his

right hand and he is unable to discharge his work by the use of right

hand. He has also deposed that on account of the injuries sustained in

the road traffic accident he is now residing in his native village and

has become dependent on his parents. The Unique Disability

Identification Card issued by the Competent Authority to the claimant

would also indicate that percentage of disability is 75%. Hence, we

see no justifiable reason to brush aside said evidence. Hence, we are

of the considered view that Tribunal as well as the High Court

committed a serious error in assessing the disability for awarding

compensation.

10. When we turn our attention to the salary aspect of claimant, it

would not detain us to modify the finding of the Tribunal and the High

Court whereunder it has been held that income of the claimant is to be

construed at Rs.3,000/- p.m. Claimant has deposed that he was 8

working as Marketing Executive in a private company called M/s

Golden Investments and drawing a salary of Rs.8,000/- p.m. as per

salary certificate Ex.P-6. No doubt claimant did not examine his

employer. On this ground, it cannot be gain said by the Insurer that

claimant was unable to earn or was not earning Rs.8,000/- p.m. The

accident in question had occurred in the year 2007. Even a mason at

that point of time was earning not less than Rs.300/- per day or in

other words Rs.9,000/- p.m. during 2007. Claimant being a graduate

and working as Marketing Executive, his plea of salary being

Rs.8,000/- p.m. deserves to be accepted, as it is within proximity of

truth and same could not have been ignored by the Tribunal and the

High Court on hyper technical grounds. Hence, we are of the

considered view that Tribunal and the High Court fell in error in

construing the income of the claimant at Rs.3,000/- p.m. instead of

Rs.8,000/- p.m. To this extent the award passed by the Tribunal and

affirmed by the High Court requires to be modified and the

compensation requires to be recomputed by taking into consideration

salary certificate as per Ex.P-6.

9 10.1 The age of the claimant as on the date accident was 24 years

and appropriate multiplier as indicated in Sarla Verma and others v.

Delhi Transport Corporation and others [ (2009) 6 SCC 121 ]

deserves to be adopted. Thus, under the head ‘Loss of Future Income’

claimant would be entitled to the following compensation:

Rs.8,000 x 75% x 12 x 18 ÷ 100 = Rs.12,96,000/-

11. On account of the injuries sustained claimant has suffered

75% whole body disability. He has clearly deposed that on account of

the injuries sustained and consequential disability suffered his

marriage prospects have become bleak. Even in the affidavit filed on

30.09.2022 he has deposed that he has remained unmarried and none

has come forward to marry him. In other words, the prospects of

appellant getting married would remain a dream and for loss of the

same he has to be suitably awarded compensation. Hence, we award a

sum of Rs.50,000/- towards the “loss of marriage prospects.”

12. In the light of the income of the claimant having been

construed at Rs.8,000/- p.m. as discussed hereinabove, the

compensation under the head ‘Loss of earnings during laid up period’ 10

would require to be recomputed and we do so and accordingly award

compensation for four months @ Rs.8,000/- p.m. i.e. Rs.32,000/- in

substitution to the compensation awarded by the Tribunal.

13. In the light of the compensation awarded towards ‘Loss of

Future Income’ the sum of Rs.60,000/- awarded by the Tribunal under

the head ‘Permanent Disability’ and ‘Loss of Amenities in Future Life’

would not arise. The claimant, thus, would be entitled to the

following compensation in substitution to what has been awarded by

the Tribunal as affirmed by the High Court:

Pain, Injuries and Suffering Rs. 1,00,000/-

Medical and incidental Rs. 1,16,812/- Expenses Loss of earning during Rs. 32,000/- laid of period Loss of Future Income Rs.12,96,000/ Loss of Marriage Rs. 50,000/ Prospects TOTAL Rs.15,94,812

For the reasons afore stated, we allow this appeal in part and

modify the award of the Tribunal as affirmed by the High Court in

MFA No.6365 of 2009 and in substitution to the same we award a sum 11

of Rs.15,94,812/- with interest @ 6% p.a. from the date of filing of

the petition till the date of payment or deposit whichever is earlier.

First Respondent, Oriental Insurance Co. Ltd. is directed to deposit the

award amount as ordered hereinabove before the jurisdictional

Tribunal within outer limit of six (6) weeks from the date of receipt of

this Judgment excluding the amount, if any, already deposited.

Costs made easy.

.……………………….J. (Surya Kant)

…………………..……J. (Aravind Kumar)

New Delhi, July 07, 2023