IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad M.F.A. NO.6148 OF 2010 (MV) C/W M.F.A.CROB.NO.133 OF 2010 IN MFA NO.6148 OF 2010 Between:
H.P.Girish S/o Bhadrappa, Aged about 42 years, R/at New Street, Talakadu, T. Narasipura Taluk, Mysuru District. ... Appellant (By Sri K. Shatharaj, Advocate) And:
1. Bajaj Allianz Gen. Insurance Company Ltd., Rept. By its Manager, Air Port Road, Bengaluru Branch, Bengaluru.
2. Shivamallaradhya @ Swamy Since dead by his LRs 2(a) Gowramma W/o Late Basavalingaradya, Aged about 70 years, 2(b) Manjula W/o Late Shivamallaradya, Aged about 35 years, 2(c) Siddamallaradya K.S.
S/o Late Shivamallaradya, Aged about 19 years, 2(d) Suresh S/o Late Shivamallaradya, Aged about 16 years, 2(d) is minor represented by Natural guardian and Mother 2(b) All are residing at Kurubalana Hundi, Talakadu Hobli, T. Bettahalli Post, T. Naraseepura Taluk-571 122. … Respondents (By Sri H.S.Lingaraj, Advocate for R1;
Sri Marigowda, Advocate for R2 (a to d)) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the judgment and award dated 25.02.2010 passed in MVC No.24/2009 on the file of the Presiding Officer, Fast Track Court and MACT, Kollegal, awarding a compensation of Rs.2,50,000/- with interest @ 6% P.A., from the date of petition till the date of deposit.
IN MFA CROB NO.133 OF 2010 BETWEEN 1. Shivamallaradhya @ Swamy Dead by his LRs.
1(a) Gowramma W/o Late Basavalingaradya, Aged about 70 years, 1(b) Manjula W/o Late Shivamallaradya, Aged about 35 years, 1(c) Siddamallaradya K.S.
S/o Late Shivamallaradya, Aged about 19 years, 1(d) Suresh S/o Late Shivamallaradya, Aged about 16 years, All are residing at Kurubalana Hundi, Talakadu Hobli, T. Bettahalli Post, T. Naraseepura Taluk-571 122. … Cross Objectors (By Sri Marigowda, Advocate) And:
1. H.P.Girish S/o Bhadrappa, Aged about 42 years, R/o New Street, Talakadu, T. Narasipura (T), Mysuru (D).
2. Bajaj Allianz Gen. Insurance Company Ltd., AirPort Road, Bengaluru Branch, Bengaluru. ... Respondents (By Sri K. Shatharaj, Advocate for R1; Sri H.S.Lingaraj, Advocate for R2)) This Miscellaneous First Appeal CROB in MFA No.6148/2010 is filed U/o 41 Rule 22 of CPC R/W Section 173(1) of MV Act against the judgment and award dated 25.02.2010 passed in MVC No.24/2009 on the file of the Presiding Officer, Fast Track Court and MACT, Kollegal partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Miscellaneous First Appeal and Miscellaneous First Appeal CROB coming on for Orders this day, the Court delivered the following:
Judgment The appeal in M.F.A.No.6148/2010 is filed by the owner of the goods vehicle bearing registration No. KA-09-A-7410, which was insured with the respondent No.1. The appeal is filed calling in question the judgment and award dated 25.02.2010 in M.V.C.No.24/2009 on the file of the Fast Tract Court and Motor Accident Claims Tribunal, Kollegal (for short ‘the Tribunal’). The injured- respondent No.2, who is now deceased, has filed his claim petition in MVC.No.24/2009, which is partly allowed by the Tribunal granting a total sum of Rs.2,50,000/- along with interest at the rate of 6% per annum from the date of petition till the date of deposit calling upon the appellant to pay the compensation awarded. The cross objection in M.F.A.CROB.No.133/2010 is filed by the injured- respondent No.2 seeking enhancement in the compensation.
2. The respondent No.2 died during the pendency of the proceedings and his legal representatives have been brought on record. The respondent No.2 filed his petition contending that while he was traveling in the appellant’s goods vehicle (referred to as “the offending vehicle”) on 26.03.2008, the vehicle met with an accident because the driver of the said vehicle was rash and negligent. The accident occurred around 1:00 p.m. He sustained grievous injuries to his head and spine. He was initially shifted to K.R.Hospital, Mysuru and later to B.M.Hospital, Mysuru.
He underwent surgeries for the injuries suffered in the accident, and he has suffered partial permanent disability. He filed the claim petition for compensation in a sum of Rs.10,57,541/-. Initially, the driver of the offending vehicle was arrayed as the respondent No.1. However, he was subsequently deleted. The appellant, the owner of the offending vehicle filed his written statement denying negligence on the part of the driver and also personal liability to pay compensation. The respondent No.1, the insurer of the offending vehicle filed its objection statement denying the accident and the hospitalization of the respondent No.2 with B.M.Hospital, Mysuru.
3. The injured-respondent No.2 examined himself as PW.1, and another Smt. Renuka as PW.2. He relied upon different exhibits including the Police records and the medical records. Insofar as the medical records, the injured-respondent No.2 relied upon wound certificate issued by K.R.Hospital, Mysuru and also another wound certificate issued by B.M.Hospital, Mysuru apart from the medical bills. The appellant did not examine anybody in support of his defence, but the respondent No.1-insurer examined one of its Officers as RW.1.
4. The Tribunal has opined that the accident was because of the rash and negligent driving of the offending vehicle, and insofar as the quantum of compensation and from whom the deceased respondent No.2 would be entitled for compensation, the Tribunal has opined that the injured- respondent No.2 was traveling as a gratuitous passenger in the offending vehicle, a goods vehicle, and as such, the respondent No.1 would not be liable to pay compensation. As regards the quantum of compensation, the Tribunal without much discussion, granted a sum of Rs.50,000/- towards injuries, a sum of Rs.1,00,000/- towards medical expenses and a further sum of Rs.1,00,000/- towards disability.
5. The appellant has filed the appeal on three grounds:
Firstly, the Tribunal has erred in concluding that the injured-respondent No.2 was traveling as a gratuitous passenger in a goods vehicle. The evidence on record is that the injured-respondent No.2 was traveling in the cabin of the vehicle and therefore, it could not be said that he was traveling as a gratuitous passenger. If the injured- respondent No.2 was not traveling as a gratuitous passenger, the respondent No.1/Insurance Company would be liable.
Secondly, the injured-respondent No.2 has not been able to establish that he did suffer injuries that necessitated hospitalization with B.M.Hospital, Mysuru. The wound certificate issued by K.R.Hospital, Mysuru shows that he had only suffered simple injuries viz., he suffered only lacerated wound in the parietal area. However, the injured-respondent No.2 has produced wound certificate dated 13.05.2008 to contend that he had not only suffered lacerated wound in the parietal area and forehead but also blunt injury in the chest and fracture of T4, T5, 56 and dislocation of T4. The injured-respondent No.2 had not examined any person to corroborate the contents of wound certificate dated 13.05.2008.
Thirdly, the Tribunal without examining the nature of injuries suffered and the consequential disablement had granted a sum of Rs.50,000/- towards injuries and another sum of Rs.1,00,000/- towards disablement and further sum of Rs.1,00,000/- towards medical expenses.
6. The learned counsel for the appellant reiterating these submissions also contended that with the demise of the respondent No.2, his legal representatives would not be entitled for any compensation asserting that the right to compensation being a personal right, would not survive in favour of the legal representatives in view of the provisions of Section 306 of the Indian Succession Act, 1925.
7. The learned counsel for the respondent No.2 submits that the contention by the learned counsel for the appellant that the legal representatives of the injured- respondent No.2 would not be entitled for compensation upon his demise, cannot be accepted in view of the decision of the Full Bench of this Court in Uttam Kumar Vs Madhav and Another reported in ILR 2002 KAR 1864. However, insofar as cross objection for enhancement, the learned counsel submits that the same would not survive for the reasons exposited by the Full Bench of this Court in the aforesaid decision.
8. The learned counsel refuted the submissions on behalf of the appellant that the grant of sum of Rs.2,50,000/- as a compensation is unjustified while not disputing that the deceased respondent No.2 did not examine the Doctor or any other person to establish the wound certificate dated 13.05.2008 issued by B.M.Hospital, Mysuru. The learned counsel relied upon the medical bills to submit that these bills were for the period immediately after the date of accident and this demonstrate that the deceased respondent No.2 had indeed suffered injuries as mentioned in the wound certificate dated 13.05.2008. As such, the compensation awarded by the Tribunal as regards medical expenses and injuries and disability is justified.
9. The Full Bench of this Court in Uttam Kumar’s case (supra) has reiterated the declaration of law in the earlier Full Bench decision in Kanamma Vs Deputy General Manager reported in ILR 1990 KAR 4300, wherein it is held as follows:
“(iii) A claim by a person for compensation for personal injuries, be it pending before the Claims Tribunal, be it pending in the first Appellate Court or be it pending in the second appellate Court, does not survive on such person’s death not caused as a consequence of personal injuries, to his legal representatives;
(iv) A claim of a person for compensation for personsal injuries if has resulted in award of the Claims Tribunal or decree of the Appellate Court, survives to his legal representatives on his death, even if such death is not the consequence of personal injuries sustained by him and hence, if such award or decree is disputed in the first Appellate Court or the second Appellate Court, the same could be resisted by the legal representatives of the claimant.”
10. In the light of this pronouncement, the submission by the learned counsel for the appellant that the legal representatives of the injured-respondent No.2 would not be entitled for any compensation, cannot be accepted, and similarly, the MFA.Crob.No.133/2010 also cannot be maintained. The legal representatives of the injured-respondent No.2, would only be entitled to resist the challenge by the appellant to the compensation already awarded and they cannot seek enhancement.
11. Therefore, the only question that survives for consideration is, “Whether the Tribunal is justified in awarding a total sum of Rs.2,50,000/- to the respondent No.2”.
12. The accident is not disputed, nor the fact that the deceased respondent No.2 was injured in the accident is disputed. The injured-respondent No.2, as demonstrated in wound certificate as per Ex.P6 issued by K.R.Hospital, Mysuru, only suffered simple injuries. There is nothing on record to substantiate that the deceased respondent No.2 was hospitalized with B.M. Hospital, Mysuru except the wound certificate dated 13.05.2008. However, in his oral evidence he states that he was hospitalized for the injuries mentioned in the wound certificate dated 13.05.2008 as per Ex.P.7 and that he suffered such injuries in the accident involving the appellant’s vehicle. He also states in his cross examination that he was unconscious because of the injuries suffered in the accident and he regained consciousness only in B.M.Hospital, Mysuru. He further states that he is unable to state for how many days he was hospitalized with K.R.Hospital, Mysuru before being shifted to B.M.Hospital, Mysuru, while stating categorically that he has no other documents except the wound certificate dated 13.05.2008 and the medical bills. Neither the ocular evidence of the injured-respondent No.2 nor the documentary evidence would therefore suffice to conclude that he had suffered injuries as found in wound certificate dated 13.05.2008 (Ex.P7). The wound certificate as per Ex.P.7 by itself without being corroborated by independent evidence, cannot also be accepted as proof of the assertion that the injured-respondent No.2 suffered such injuries in the accident involving the appellant’s offending vehicle. The injured-respondent No.2 should have examined the Doctor, who treated him or the authorities from B.M.Hospital, Mysuru to discharge the onus of establishing that he had indeed suffered the injuries described in the wound certificate dated 13.05.2008 (Ex.P.7) in the accident involving the appellant’s vehicle. The Tribunal has not at all examined this facet. As such, the injured-respondent No.2 could not have been entitled for compensation on the ground that he had suffered injuries as per wound certificate dated 13.05.2008 (Ex.P.7). The wound certificate dated 13.05.2008 issued by the K.R.Hospital, Mysuru, which is in the immediate vicinity of the accident, mentions that the injured-respondent No.2 only suffered lacerated wound in the parietal area and forehead.
Infact, these injuries have been mentioned as simple injuries in the wound certificate. Therefore, the claimant would be entitled for a lump sum amount for the injuries suffered.
13. This Court on a conspectus reading of the evidence on record is of the considered view that a lump sum amount of Rs.50,000/- would be just and reasonable compensation. This Court, while arriving at this figure is cognizant of the fact that the injured-respondent No.2 has not led in any evidence to establish disability because of the lacerated injuries suffered in the parietal area and forehead. Therefore, the following order ORDER The appeal in M.F.A.No.6148/2010 is allowed in part, and the M.F.A.Crob.No.133/2010 is dismissed. The judgment and award in M.V.C.No.24/2009 on the file of the Fast Track Court and Motor Accident Claims Tribunal, Kollegal is modified restricting the compensation to Rs.50,000/- along with interest at the rate of 6% per annum from the date of petition till the date of deposit.
The legal representatives of the deceased respondent No.2 shall be entitled to this amount, and the amount in deposit, if any, shall be transmitted to the Tribunal for disbursement.
Sd/- Judge RB