IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.2049/2010(MV) BETWEEN:
NATIONAL INSURANCE CO., LTD., DO-8, BANGALORE -04.
THROUGH ITS REGIONAL OFFICE #144, SUBHARAM COMPLEX M.G.ROAD, BANGALORE – 560 001. REP. BY ITS ADMINISTRATIVE OFFICER MR.KHAJA PASHA.
..APPELLANT (BY SRI LAKSHMINARASAPPA, ADVOCATE) AND:
SRI M.D RAMACHANDRA RAO S/O M.S DWARAKANATH AGED ABOUT 24 YEARS RESIDING AT No.11, 8TH MAIN 3RD STAGE, 4TH BLOCK BASAVESHWARANAGAR BANGALORE – 560 079.
..RESPONDENT (BY SMT. G .K SREEVIDYA, FOR SRI T.N VISHWANATH, ADVOCATE FOR C/R) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:21.10.2009 PASSED IN MVC No.9189/2008 ON THE FILE OF XVI ADDITIONAL JUDGE, MACT, BANGALORE CITY AWARDING A COMPENSATION OF Rs.3,35,600/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DATE OF REALISATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Though the appeal is listed for `Admission’, with the consent of the learned counsel appearing for the parties, it is taken up for final disposal.
2. This appeal is preferred by the insurance company which is respondent No.1 before the Tribunal against the Judgment and award dated 21.10.2009 passed in MVC No.9189/2008 by the MACT, Bangalore, wherein the Tribunal has awarded compensation of Rs.3,35,600/- with interest @ 6% p.a.
3. In order to avoid confusion and overlappings, the parties are hereinafter referred with reference to their status and rankings as it stood before the Tribunal.
4. The accident that gave rise to initiating proceedings is that one M D Ramachandra Rao aged 22 years was working as System Engineer and earning Rs.15,000/- per month. When he was proceeding on his motorcycle bearing registration No.KA-02-EL-2170 on Kasturba Road near Siddalingaiah Circle, Bengaluru, by that time a motor car bearing registration No.KA-04-B-7486 driven in a rash and negligent manner dashed against the petitioner’s vehicle because of which he fell down and sustained grievous injuries and was admitted to Mallya Hospital and because of the accident he became permanently disabled.
5. A criminal case came to be registered against the driver of the car in Crime No.169/2008 for the offence punishable under Sections 279 and 337 of IPC. The claimant filed claim petition claiming compensation of Rs.8,00,000/- for the injuries sustained.
6. Respondent No.2 remained absent and was placed exparte. The petition was contested by the insurance company. The learned Member was accommodated with oral evidence of PW-1 and PW-2 and documentary evidence Exhibits P-1 to P-18. Respondents marked Ex.R-1 copy of the policy.
7. Learned counsel for appellant would submit that they are disputing the quantum of compensation. Income and incurring of medical expenses are disputed. He would submit that the double benefit is obtained by the claimant. Further the Tribunal erred in granting `loss of future earning’ at Rs.1,29,600/-. Learned counsel for appellant would submit that employment of petitioner is not terminated and he continues to get salary. Thus, he is not entitled for compensation under the head `loss of future earning’. In this connection the learned Member towards compensation under the head `loss of future earning’ has considered salary at Rs.4,000/- per month against the claim of the petitioner at Rs.15,000/- per month and pay slip marked at Exhibit P-10 the salary is stated at Rs.12,875/-. The substantial dispute between the claimant and respondent-insurance company is with regard to salary at Rs.12,875/- (Rs.15,000/-) claimed by the petitioner. Rs.4,000/- has been considered by the learned Member. Further aspect of `loss of future earning’ ought to have been Rs.1,29,600/- and more as contended by the claimant. `Nil’ as contended by the insurance company.
8. Following are the injuries sustained by the claimant as per wound certificate Exhibit P-6:
1. Deformity, tenderness, abnormal mobility and creptus were proximal 1/3rd of right thigh 2. X-ray of right femur showed fracture upper 3rd shaft right femur 3. Laceration on right forearm As per the opinion of the doctor –PW2, injury No.1 and 2 are grievous in nature.
9. In the circumstances of the case, insofar as medical expenses is concerned learned counsel for appellant stated that benefit of claiming refund twice is not permitted more particularly in respect of medical expenses.
10. In the circumstances, I find that in the instant case the refund of medical expenses is not by virtue of a contract of insurance or otherwise by the claimant and on the other hand he has obtained refund of Rs.94,000/-.
11. Learned counsel for the appellant would submit that respondent/claimant has received the refund of medical expenditure and at the same time he continues to be in job, as such, there is no question of granting compensation towards future medical expenses. He further submits that Ex.P.11 – termination letter filed by the respondent/claimant before the Court below stating that respondent was terminated from the job is false, in proof of which learned counsel for the appellant has filed a letter along with a memo dated 04.01.2019 issued by the Company stating that respondent/claimant is continuing in his job. The document – Ex.P.11 – termination letter and the document stated by the learned counsel for appellant are stated to have been issued by the same authority and the position is that appellant is disputing the document of the respondent and vice versa.
12. In the context and circumstances of the case, the stand of the insurance company is to the effect that respondent/claimant is still working in the same job which is denied by the counsel for the claimant. Thus, an enquiry may be necessary in this connection to find out the authenticity of the documents filed both by the appellant and the respondent as the Court below has not gone into verifying this aspect and therefore, the points in controversy stands unanswered.
Accordingly, I pass the following:
ORDER (i) Appeal is allowed and the matter is remanded to the Tribunal.
(ii) Judgment and award dated 21.10.2009 passed by the MACT, Bangalore (SCCH-14) passed in MVC No.9189/2008 is set-aside with a direction to the Tribunal to consider the entire matter afresh after giving opportunity for the parties to file additional documents if any, to adduce evidence within a period of 30 days from the date of appearance and to hear them afresh.
(iii) The parties shall appear before the Tribunal on 05.03.2019 and the matter shall be disposed of within 60 days from the first date of hearing. In order to avoid wastage of judicial time in the matter, no further notice would be issued to the parties.
Registry to transmit the entire records along with the memo filed today in this Court to the Tribunal forthwith.
Sd/- JUDGE SBN/BRN