IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.NO.3491/2012 C/W.
M.F.A. CROB. NO.125/2012 (MV) IN M.F.A.NO.3491/2012 BETWEEN:
THE NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE SHIMOGA THROUGH REGIONAL OFFICE P. KALINGA RAO ROAD BENGALURU-27.
BY DULY CONSTITUTED ATTORNEY. … APPELLANT (BY SRI. K. SURYANARAYANA RAO, ADVOCATE) AND:
1. B.S. PRAVEEN S/O. B.Y. SREEKANTA AGED ABOUT 42 YEARS AGRICULTURIST AND COFFEE PLANTER R/O. BILUVE MANDAGADDE HOBLI THIRTHAHALLI TALUK.
2. D.S. NAGARAJA PRABHU S/O. DEVARAJU PRABHU AGED ABOUT 53 YEARS KALYANI NILAYA BETTAMAKKI SEGEBYLU THIRTHAHALLI.
3. H.R. RAVI S/O. RANGAPPA AGED ABOUT 45 YEARS. ... RESPONDENTS (BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE FOR R1 R2 SERVED VIDE ORDER DATED 23.04.2014 R3 NOTICE DISPENSED WITH) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 15.11.2011 PASSED IN MVC NO.267/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-7, SHIMOGA, AWARDING A COMPENSATION OF RS.10,19,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT.
IN M.F.A. CROB NO.125/2012 BETWEEN:
SRI B.S. PRAVEEN AGED ABOUT 42 YEARS S/O. SRI B.Y. SRIKANTA AGRICULTURIST AND COFFEE PLANTER R/A. BILUVE MANDAGADDE HOBLI THIRTHAHALLI TALUK SHIMOGA DISTRICT. … CROSS OBJECTOR (BY SRI. K.T. GURUDEVA PRASAD, ADVOCATE) AND:
1. NEW INDIA ASSURANCE CO. LTD. DIVISIONAL OFFICE SHIMOGA THROUGH: REGIONAL OFFICE P. KALINGA RAO ROAD BENGALURU-560 027.
BY DULY CONSTITUTED ATTORNEY.
2. SRI. D.S. NAGARAJA PRABHU AGED ABOUT 53 YEARS S/O. DEVARAJU PRABHU R/O. KALYANI NILAYA BETTAMAKKI SEGEBYLU THIRTHAHALLI. ... RESPONDENTS (BY SRI. K. SURYANARAYANA RAO, ADVOCATE) THIS M.F.A CROB IN MFA NO.3491/2012 IS FILED UNDER ORDER 41 RULE 22 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND AWARD DATED 15.11.2011 PASSED IN MVC NO. 267/2009 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT-7, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE M.F.A. AND M.F.A. CROB COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal and cross objection is filed by the insurance company and cross objector respectively against the judgment and award passed in M.V.C.No.267 of 2009 dated 15.11.2011 on the file of the II Additional Senior Civil Judge and AMACT-7 at Shivamogga challenging the quantum of compensation and also with regard to the tribunal not considering the contributory negligence.
2. In M.F.A.No.3491 of 2012, the insurance company would contend that the Court below has committed an error in not considering the evidence of R.W.1, the driver of the bus. His evidence is clear that the claimant was riding the jeep with two dogs and dogs jumped from the jeep and he lost the control of the jeep and dashed against the bus and the same has not been considered by the tribunal fixing the contributory negligence on the part of the claimant. The other contention raised in the appeal is that the Court below has committed an error in awarding a compensation of Rs.1,00,000/- towards loss of amenities in the absence of any evidence that on account of injury, he had suffered disability. The tribunal has erred in awarding Rs.2,50,000/- on the head of future loss of income holding that though the Doctor has not stated the disability, the Court has to workout some measures to award compensation under the said head and awarding a sum of Rs.2,50,000/- is untenable in law. It is also his contention that the tribunal has failed to notice that claimant was an Agriculturist and Coffee Planter and according to his evidence, the lands are looked after by his father. In the absence of evidence as to occupation and income of the claimant, awarding an amount of Rs.50,000/- is without any basis. The tribunal has also committed an error in awarding a sum of Rs.1,00,000/- towards pain and suffering and the same is not reasonable and excess and hence, it requires interference of this Court.
3. The claimant has also filed cross objection in M.F.A. Crob. No.125 of 2012 contending that the learned Judge has failed to appreciate the fact that the claimant has spent more than Rs.8,00,000/- towards medical expenses and even the medical bills worth of Rs.9,02,822/- have been produced and without proper appreciation of these medical bills, the tribunal has considered only an amount of Rs.4,34,000/- without any reason. The tribunal has also failed to take note of the fact that the claimant is a native of Thirthahalli Taluk and he was treated at Bengaluru and towards conveyance itself, he has spent huge amount, as he used to travel in a hired vehicle and the tribunal has only awarded Rs.15,000/- towards conveyance charges. The tribunal also failed to appreciate the evidence of the Doctors, who have been examined as C.Ws.1 and 2, whose evidence is clear that there is a disfigurement and the claimant has to undergo plastic surgery and to set right the disfigurement, he requires multiple operations of various dimensions and the tribunal without proper appreciation of these aspects, awarded only an amount of Rs.2,50,000/- as global compensation towards future loss of income. Hence, the compensation awarded by the tribunal is very meager and it requires enhancement.
4. The learned counsel appearing for the insurance company in his argument vehemently contended that the Court below, without any basis has awarded an amount of Rs.1,00,000/- on the head of pain and suffering, an amount of Rs.2,50,000/- on the head of future loss of income and an amount of Rs.1,00,000/- on the head of loss of amenities and has committed an error in awarding exorbitant compensation in favour of the claimant. The other contention of the learned counsel for the insurance company is that, the tribunal without any basis has awarded a sum of Rs.50,000/- on the head loss of expectation of life. It is also his contention that the tribunal has failed to take note of the evidence of R.W.1, who has categorically deposed that, there was contributory negligence on the part of the claimant, who was carrying two dogs in the jeep which has suddenly jumped from the jeep, as a result of which, the claimant has dashed against the bus.
5. Per contra, learned counsel appearing for the claimant in M.F.A. Crob. No.125 of 2012 in his argument vehemently contended that the Court below did not consider the material available on record, particularly the medical bills and has only awarded an amount of Rs.4,34,000/- on the head of medical expenses, even though the claimant has spent more than Rs.9,00,000/-. Apart from that, the evidence of the doctor is very clear that though he has not assessed the permanent disability, he has categorically deposed that the claimant requires a plastic surgery and there is a disfigurement. Hence, the amount awarded by the tribunal under this head is very meager and it requires interference of this Court. The learned counsel would also contend that loss of income during treatment period was not considered by the tribunal in a right perspective since, the claimant was under treatment from the year 2008 to 2011 and hence, it requires interference of this Court.
6. Having heard the arguments of learned counsel for the claimant and also the learned counsel for the respondent and keeping in view the contentions urged by learned counsel for both the parties, the points that arise for consideration of this Court are:
1. Whether the tribunal has committed an error in not considering the contributory negligence as contended by the learned counsel for the insurance company and whether it requires interference of this Court?
2. Whether the tribunal has committed an error in awarding exorbitant compensation as contended by the learned counsel for the insurance company and it requires interference of this Court?
3. Whether the tribunal has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
4. What order?
Point No.1:
7. The main contention of the learned counsel for the insurance company is that the claimant himself was carrying two dogs in the jeep and the dogs have suddenly jumped from the jeep, as a result of which the claimant has lost the control and he himself dashed against the bus and hence, there is contributory negligence on the part of the claimant as well. In order to substantiate the claim of the insurance company, the insurance company has examined a witness as R.W.1, who is the driver of the bus and though he reiterates the grounds urged in the appeal in his evidence, in the Cross-examination, he has categorically admitted that he himself pleaded guilty before the Court. However, the explanation offered by the R.W.1 in his evidence is that, in order to avoid repeatedly appearing before the Court, he pleaded guilty and the said explanation offered by the R.W.1 cannot be accepted. In order to substantiate the contention of the learned counsel for the insurance company, nothing is placed on record and the criminal court record also does not disclose anything about carrying dogs in the jeep. When such being the case, the very contention of the learned counsel for the insurance company that the tribunal has committed an error in not appreciating the evidence of R.W.1 cannot be accepted Therefore, in the absence of cogent evidence and material on record, the Court also cannot presume the things and hence I do not find any error committed by the tribunal in not considering the contributory negligence as contended by the learned counsel for the insurance company. Accordingly, I answer point No.1 as ‘negative’.
Point Nos.2 and 3:
8. Regarding quantum of compensation is concerned, on perusal of the judgment and award of the tribunal, it is evident that the tribunal has taken note of the wound certificate which is marked as Ex.P6 and has also taken note of Ex.P7, discharge summary and Ex.P8, discharge summary of Sparsh Hospital. The tribunal has also taken note of the medical bills which are marked as Exs.P9 to P51, 42 medical bills in total, additional medical bills Exs.P52 to 64, 14 bills, Exs.P65 to 67, bills and Exs.P76 to P93, 20 medical bills in total. Exs.P65 to P67 in respect of repair of the jeep, photographs Exs.P68 to P70 of the jeep, Ex.P94, 1 lab report, Exs.P95 to P97, discharge summaries and Ex.P98, IMA report.
9. Though the claimant claims that he was in hospital for a period of three years from 2008 to 2011, the same is not supported by any documentary proof. The discharge summary which is marked as Ex.P7 discloses that the claimant was admitted to Nanjappa Hospital, Shivamogga on 02.09.2008 and discharged on the same day. Thereafter, in terms of Ex.P8, the claimant was admitted to Sparsh Hospital on 03.09.2008 and was discharged on 16.09.2008 i.e., for a period of 13 days, wherein he was treated for open reduction and internal fixation with reconstruction plate done on 06.09.2008. Open reduction and internal fixation of the lateral part of the supraorbital rim done on 04.09.2008 along with carpeting of ACF with the neurosurgeons. Wound debridement and primary closure of the left supraorbital wound and left upper eyelid. Manipulation and closed reduction of the nasal bones with repair of the medical canthi. Open wound involving the left eyebrow and the left upper eyelid. As per Ex.P96, the claimant was admitted to Mallya hospital on 29.07.2009 and was discharged on 30.07.2009. As per Ex.P97, again the claimant was admitted to Mallya hospital on 04.02.2010 and was discharged on 06.02.2010 wherein he was treated for watering from right eye and post Traumatic Dacrocystitis with encysted mucocele. As per Ex.P190, the discharge summary, the claimant was admitted to BGS Global Hospital on 29.03.2011 and was discharged on 05.04.2011.
10. The other document relied upon by the claimant is Ex.P98 for having admitted to Mallya Hospital again on 07.09.2010 and discharged on the same day. Thereafter, against he was admitted to the very same hospital on 08.11.2010 and was discharged on 10.11.2010 in terms of Ex.P99. Apart from these documents, the claimant has also examined two Doctors C.Ws.1 and 2, who have deposed before the Court with regard to nature of injuries sustained by the claimant. No doubt, the records reveal that the claimant was admitted to different hospitals at different dates from the year 2008 to 2011, the evidence of the Doctor, C.W.1 is that the claimant has sustained facial disability, on account of which he is not able to catch the smell and is also having breathing problem. The claimant also has scar on his face and disability relating to dislocation which will have pain and stiffness of hip joint and unable to sit and difficulty in using Indian toilet. The other Doctor, C.W.2 states that the claimant has lost the capacity of sense of smell and is also having a problem of watering in the eye and disfigurements of face. The loss of expectation to inhale is a permanent disability to cure but for disfigurement, it requires multiple operations in various dimensions. However, the Doctors have not assessed the permanent disability, except deposing with regard to loss of smell and water from the eye and disfigurement. The tribunal while awarding compensation on different heads, awarded a sum of Rs.1,00,000/- on the head pain and suffering.
11. Having considered Ex.P6, wound certificate and the nature of injuries sustained by the claimant which are grievous in nature and the discharge summaries to substantiate the fact that the claimant was admitted to different hospitals for a differing periods and having considered the nature of injuries i.e., disfigurement on the face and loss of smelling and watering from the eye, since he has suffered head injury, I do not find any reason to interfere with the order of the tribunal in awarding a sum of Rs.1,00,000/- on the head of paid and suffering.
12. The tribunal while awarding the compensation towards medical expenses has awarded a sum of Rs.4,34,000/- and has made an observation that the claim made as per Exs.P61 and P64 is a double claim and hence, the said claim is rejected. The learned counsel appearing for the claimant is unable to point out which are the bills which are not being considered by the tribunal and when such being the case, this Court do not find any error committed by the tribunal in awarding the compensation towards medical expenses. Towards loss of income and attendant charges during treatment and rest period, the tribunal has awarded a sum of Rs.50,000/-. The records would disclose that the claimant was inpatient in different hospitals on different dates. Hence, I do not find any error committed by the tribunal in awarding a sum of Rs.50,000/- towards loss of income and attendant charges during treatment and rest period.
13. The other contention of the learned counsel appearing for the claimant is that, only a sum of Rs.15,000/- is awarded towards conveyance charges and it requires enhancement. Having considered the fact that the claimant was inpatient in different hospitals on different dates in the intervening period from the year 2008 to 2011, a sum of Rs.15,000/- awarded towards conveyance charges is very meager and the tribunal ought to have awarded a sum of Rs.50,000/- instead of Rs.15,000/- and the same is enhanced.
14. Towards loss of amenities of life, happiness and frustration, a sum of Rs.1,00,000/- is awarded by the tribunal taking into consideration the age of the claimant as 39 years and the injuries sustained. In the absence of the permanent disability stated by the Doctors, the same appears to be on the higher side no doubt, the claimant was in a treatment for a long period from 2008 to 2011. Hence, the same is reduced to Rs.50,000/- as against Rs.1,00,000/-.
15. Towards loss of expectation of life, a sum of Rs.50,000/- is awarded by the tribunal and the same appears to be on the higher side, when the Doctors are unable to assess the permanent disability. The assessment is only with regard to loss of smelling sense and water from the eye. Though the Doctors have stated that the claimant requires multiple surgeries for disfigurement, nothing is placed on record to show that he was subjected to multiple surgeries. Hence, the same is reduced to Rs.25,000/- as against Rs.50,000/-
16. Towards loss of future income, the tribunal has globally awarded a sum of Rs.2,50,000/-, the same is also not on any basis. No doubt, he has got the loss of smelling and watering from the eye and also disfigurement, the photos which are produced before the Court also disclose that there is disfigurement on his face, as already pointed out, when no surgery was conducted with regard to disfigurement, awarding a sum of Rs.2,50,000/- is also on higher side and the same is reduced to Rs.1,50,000/- considering the period & treatment.
17. Towards future medical expenses, the tribunal has awarded a sum of Rs.20,000/- and the same appears to be meager since, he has suffered head injury and it also requires treatment for loss of smell and also watering from the eye, the same is enhanced to Rs.50,000/- as against Rs.20,000/-. Accordingly, in view of the discussions made above, I answer point Nos.2 and 3 accordingly.
18. The other contention of the learned counsel for the claimant is that, no amount is awarded towards damage of the vehicle. In order to substantiate the same, the claimant has relied upon Exs.P65 to P67. Except the said exhibits, the claimant has not produced any documentary proof and also not examined the mechanic working in the garage to substantiate his claim. However, the photo which is marked as Ex.P59 and IMA report which is marked as Ex.P98 disclose that the damages caused to the vehicle and the bills at Exs.P65 to P67 discloses the amount spent for repair to the extent of Rs.15,050/-, Rs.23,850/- and Rs.17,700/- respectively, the same is not proved by examining the author of the documents. Further, the claimant has also failed to produce the RC Book before the Court to show that he is the owner of the vehicle. Hence, in the absence of any documentary proof with regard to the ownership, the claimant is not entitled for any compensation for repair of the vehicle.
19. In view of the discussions made above, I pass the following:
ORDER (i) The appeal filed by the insurance company in M.F.A.No.3491 of 2012 is allowed in part. The judgment and award passed by the tribunal is modified granting a compensation of Rs.9,09,000/- as against Rs.10,19,000/- awarded by the tribunal with interest at 6% per annum.
(ii) The appeal filed by the claimant in M.F.A. Crob.No.125 of 2012 is dismissed.
(iii) The amount in deposit is ordered to be transmitted to the tribunal, forthwith.
(iv) Registry is directed to send the lower Court records to the Court below, forthwith.
(v) The order of the tribunal in respect of apportionment and depositing the compensation amount in fixed deposit shall remain unaltered.
Sd/- JUDGE ST