IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD MISCELLANEOUS FIRST APPEAL NO. 11680 OF 2011 C/W MISCELLANEOUS FIRST APPEAL NO. 11679 OF 2011 IN MFA NO. 11680/2011 BETWEEN:
SRI NAYAZ PASHA SON OF ABDUL SAB, AGED ABOUT 34 YEARS NO.197, MASEEDI ROAD VIJANAPURABANGALORE (BY SRI. K. N. HARISH BABU., ADVOCATE) AND:
... APPELLANT 1. SRI SOMASHEKAR. A # 175, 1ST BLOCK, THANISANDRA, A. C. POST, BANGLORE – 560 045.
2. M/S TATA AIG GENERAL INSURANCE COMPANY 6TH FLOOR, KHANIJA BHAVAN WEST ENTRANCERACE, COURSE ROAD BANGALORE – 1.
... RESPONDENTS (BY SRI.A.RAVISHANKAR, ADVOCATE FOR R2; NOTICE TO R1 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.06.2011 PASSED IN MVC NO. 4416/2008 ON THE FILE OF PRINCIPAL MACT, CHIEF JUDGE, SMALL CAUSES BANGALORE, BANGALORE, DISMISSING THE PETITIONS AS NOT MAINTAINABLE.
IN MFA NO. 11679/2011 BETWEEN:
SRI. MUNEER AHMED SON OF CHOTA SAB AGED ABOUT 38 YEARS RESIDING AT NO. 1480/1 NEAR YELLAMMA TEMPLE VIJANPURA, BANGLAORE – 16.
(BY SRI. K. N. HARISH BABU., ADVOCATE) AND:
1. SRI SOMASHEKAR. A # 175, 1ST BLOCK, THANISANDRA, A. C. POST, BANGLORE – 560 045.
... APPELLANT 2. M/S TATA AIG GENERAL INSURANCE COMPANY 6TH FLOOR, KHANIJA BHAVAN WEST ENTRANCERACE, COURSE ROAD BANGALORE – 1.
... RESPONDENTS (BY SRI. A.RAVISHANKAR, ADVOCATE FOR R2; VIDE ORDER DATED 03.01.2017 SERVICE OF NOTICE TO R1 SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 04.06.2011 PASSED IN MVC NO. 4415/2008 ON THE FILE OF PRINCIPAL MACT, CHIEF JUDGE, SMALL CAUSES BANGALORE, BANGALORE, DISMISSING THE CLAIM PETITION COMPENSATION.
THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These appeals are by the claimants in MVC Nos.4415 and 4416 of 2008 on the file of the Principal MACT and Chief Judge, Court of Small Causes, Bangalore. The appellants’ claim petitions under section 166 of the Motor Vehicles Act, 1988 seeking compensation for the injuries suffered by them in a road accident on 15.12.2007 are dismissed by the impugned common judgment dated 4.6.2011. As such, the claimants are in appeal. The appeals are taken up for final disposal with the consent of the learned counsel for the parties.
2. The claimants filed the claim petitions asserting that on 15.12.2007, they were proceeding on their scooter bearing registration No. KA-03/EE-846 on Old Madras Road, when they were hit by the TATA SUMO vehicle bearing registration No. KA-03/MD-6170. The claimant in MVC No.4415/2008 was driving the scooter and the claimant in MVC No.4416/2008 was riding on the pillion. The claimants suffered injuries in the accident, and they were initially shifted to Patel Hospital, K.R.Puram, Bangalore. They were later shifted to HOSMAT Hospital, Bangalore. The claimant in MVC No.4415/2008 suffered multiple injuries including comminuted fracture of distal and right radius, pubic diastaisis, and the right common femoral artery occlusion. The other claimant viz., the claimant in MVC No.4416/2008 also suffered multiple fractures including comminuted fracture of right tibia and fracture of right femur. The first of the claimants was initially hospitalized until 28.12.2007 and was later hospitalized between 18.1.2008 and 21.1.2008. He was also again hospitalized for a couple of days on 14.2.2008. The second claimant was hospitalized until 22.12.2007.
3. The claimants arrayed the owner of the TATA SUMO vehicle bearing registration No.KA-03/MD-6170 (for short, the offending vehicle) and its Insurer as respondents. The owner of the offending vehicle remained ex parte but the Insurer contested the claim petitions. The Insurer contended inter alia that the offending vehicle is not involved in the accident and the vehicle is falsely implicated to make the Insurer liable.
4. The claimants examined themselves as PWs.1 and 2 and also the doctor who treated them both at HOSMAT Hospital. The claimants to prove the accident relied upon the first information of the accident lodged with the Jurisdictional Police on 24.12.2007 in Crime No.638/2007 and the other Police records, and to establish the injuries suffered and the resulting disability, the claimants relied on the medical records which include the Wound Certificate and Discharge Summary from the HOSMAT Hospital.
5. The Tribunal while considering the Issue as regards whether the claimants are able to establish that the accident is caused by the offending vehicle in the manner asserted by him, has held against the claimants concluding that the claimants have failed to establish the involvement of the offending vehicle in the accident and consequentially dismissed both the claim petitions. The Tribunal has arrived at its conclusion that the claimants have not established the involvement of the offending vehicle because of the statements as recorded in the medical record and the delay in lodging the information about the accident with the Jurisdictional Police while discarding the evidence of the Investigating Officer, who is examined as RW.2.
6. The learned counsel for the claimants submits that the claimants do not dispute that the information about the accident was not lodged with the Jurisdictional Police immediately after the accident and such information was lodged after 10 days. The claimants were unconscious after the accident, and they were shifted to the hospital by certain persons. The family members were informed about the claimants being injured in the accident only after the claimants were hospitalized and subsequently, Sri Sadiq Ahammed, the brother of the claimant in MVC No.4415/2018, lodged information with the Police. The claimants had to undergo surgery and as such, even the family members could not lodge information about the accident immediately after they were informed. The claimants have thus justifiably explained the delay.
7. However, the Tribunal has examined this explanation in the background of the medical evidence, and having thus examined, has concluded that the claimants have not established the accident. The Tribunal has opined that the medical evidence on record disclose that both the claimants were conscious and oriented as of the time of their admission and also on the subsequent days. The Tribunal has elaborately referred to the notes of the hospital and the discharge summary. The Tribunal has also placed emphasis on circumstances such as the failure to send the medico legal information to the Police and the failure to seize the offending vehicle. The Tribunal has ultimately concluded that the claimants were injured in a ‘hit and run’ case involving an unknown vehicle, but the claimants, in collusion with the Police, have falsely implicated the offending vehicle. Though the Tribunal thus answered Issue No.1, has not found it appropriate to record its finding on Issue No.2 which required the Tribunal to decide on whether the claimants were entitled for compensation and if they were entitled for compensation, then to what amount and from whom.
8. The learned counsel for the claimants and the respondent – Insurer in support of their respective cases, have taken this Court through the Tribunal’s records, including the medical records. The learned counsel in unison submit that if this Court were to interfere with the Tribunal’s finding on the question of involvement of the offending vehicle and therefore the Insurer’s liability1, given the fact that the accident is of the year 2007 and this appeal has been pending consideration for almost a decade now, in the light of the provisions of Order XLI Rule 24 CPC read with 173 of the Motor Vehicles Act and Rule 235 of the Karnataka Motor Vehicle Rules, this Court, instead of 1 The learned counsel for the Insurer does not dispute that if the driver of the offending vehicle is indeed responsible for the accident, the Insurer would be liable to pay just and reasonable compensation.
remanding the claim petitions to the Tribunal for its finding on the quantum of compensation, should decide even the question of quantum of compensation in the present appeal.
9. The questions that arise for consideration in these two appeals would be:
(i) Whether the Tribunal’s finding that the claimants were injured in a ‘hit and run case’ involving an unknown vehicle and that the offending vehicle viz., TATA Sumo bearing registration No. KA-03/MD- 6170 is falsely implicated is based on proper appreciation of evidence on record and, (ii) If the Tribunal has not properly appreciated the evidence on record, and if the claimants are able to establish that the accident was because of the rash and negligent driving of the TATA SUMO bearing registration No.KA-03/MD-6170, what would be the just and reasonable compensation that each of the claimants would be entitled to.
10. The controversy whether the offending vehicle viz., the TATA SUMO bearing No. KA-03/MD-6170 is involved in the accident or it is falsely implicated will have to be examined in the light of the undisputed fact that the claimants are injured in a road accident and they have undergone prolonged hospitalization and multiple surgeries. The controversy will also have to be examined in the light of the other undisputed fact that the information of the accident was not lodged with the jurisdictional Police either by the claimant or by the hospital authorities immediately after the accident and such information is lodged by the brother of one of the claimants/injured after about 10 days.
11. The Tribunal as it appears from its reasoning is swayed by the fact that the information was not lodged either by the claimants or their family members or the hospital authorities immediately after the accident, and such information is lodged by the brother of one of the claimants belatedly. However, it is trite that mere delay in filing the information cannot be a condition to reject a claim petition, and the veracity of the reason offered to explain the delay will have to be examined in the context of the attendant circumstances. The material attendant circumstances would be as follows. The claimant’s brother is categorical in his information to the police, which of course is delayed by 10 days, that he is not a witness to the accident and he was only informed about the accident after the injured were taken by public to the HOSMAT Hospital. He has also stated that the claimants were not coherent when he saw them in the hospital because they were injured severely. The Tribunal has concluded that the first information is not bona fide as it is contradicted by the medical records.
12. The Tribunal has referred to the notes made by the authorities at HOSMAT Hospital to conclude that the claimants were conscious and oriented at the time of admission and even later and therefore, the first information is not bona fide. The Tribunal has referred to certain notes maintained by the authorities at HOSMAT Hospital. But the learned counsel agree that the material on record do not contain any notes by the Hospital, and in fact, the only medical evidence on record is the Discharge Summary which only mentions that the claimants’ general condition was good when they were brought to the hospital. Therefore, it cannot be gainsaid that the Tribunal’s finding on the claimants’ condition when they were taken to the Hospital is extraneous to the material on record. Further, it is undisputed that the claimants have had to undergo surgeries and they have undergone such surgeries within the fortnight after the accident. The claimants were in the hospital even when the information was lodged with the Police. These circumstances contextualize the explanation for the delay. Further, the investigating officer has been summoned and examined as RW.1. He has spoken about the investigation and finding that the driver of the offending vehicle causing the accident.
13. These circumstances and the undisputed facts do indicate the involvement of the offending vehicle. The fact that the investigating officer could not locate from his file the IMV Report, one of the reasons that has weighed with the Tribunal to disregard the evidence of the said officer, cannot overwhelm these circumstances. The Tribunal’s conclusion that the claimants were injured in a ‘hit and run case’ involving an unknown vehicle, which is based on extraneous material and without considering material evidence on record, is improper appreciation of evidence. This Court, on the scale of preponderance of probabilities from the material on record, can only reasonably infer the involvement of the offending vehicle. The point for determination formulated in this regard is answered accordingly.
14. The claimant in MVC No. 4415/2008 has suffered grievous injuries which have compelled him to undergo three surgeries. He is hospitalized on three different occasions. He has had to undergo procedure for interlocking nailing in the right fingers, for fixing of external fixator of the right radius, for the tension band wiring of the right patella and for open reduction and internal fixation of pubis with a recon plate. He has had to undergo follow up surgical procedures as well. Therefore, this claimant would be entitled for compensation towards pain and suffering. However, considering that the accident is of the year 2007 and the amount that was being awarded towards pain and suffering during that time, which undisputedly is at the rate of Rs.10,000/- for every fracture, the claimant would be entitled for a sum of Rs.50,000/- towards pain and suffering. Incidental to the hospitalization, the claimant would also be entitled for a reasonable amount towards conveyance, nourishment and attendant charges. A sum of Rs.10,000/- in this regard would be appropriate given the date of the accident.
15. The learned counsel for the parties do not dispute that the actual expenses incurred by this claimant, as per the medical records, is in a sum of Rs.1,84,647/-, and therefore the claimant would be entitled to this amount as well. The doctor’s evidence is that the claimant will have to undergo further surgery for removal of implants and the approximate cost thereof would be Rs.35,000/-. The award of this amount would be just and reasonable in the light of the undisputed injuries and the procedures that the claimant has had to undergo.
16. This claimant would be entitled for loss of earning during the laid-up period and loss of future earning. The learned counsel for the parties again do not dispute that the claimant in the absence of evidence of actual income could only be entitled for determination of compensation under these two heads on the basis of notional income. The notional income as per the Schedule evolved for settlement in Lok Adalaths, which is generally adopted for reasons of uniformity and consistency in assessing compensation, in cases of accidents of the year 2007 would be Rs.4,000/- per month. The claimant would be entitled for loss of income during the laid-up period of three months i.e., in a sum of Rs.12,000/-. Insofar as the loss of future earning capacity, the doctor has assessed the permanent disability at 18% of the whole body. The claimant’s case is that at the time of accident, he was earning his livelihood as a person associated with meat industry. However, the details of his vocation are not forthcoming. The claimant would be entitled for compensation towards loss of future earning on the basis of the functional disability which could only be a function of both the permanent disability and the vocation. This Court, on the basis of the material available on record, is of the considered opinion that the assessment of functional disability could reasonable be taken at 15%. As such, the claimant would be entitled for compensation towards loss of future earning capacity computed taking the notional income at Rs.4000/- per month with the disability being taken at 15% with the multiplier being ‘15’ based on the age of the claimant. In the light of the above discussion, the claimant would be entitled for a total sum of Rs.4,00,000/- computed in the following manner:
Sl.No. Heads Amount
17. Insofar as MVC No.4416/2008, the claimant would be entitled to compensation under the head pain and suffering, and it is undisputed that he has suffered one grievous injury which had required him to undergo a surgery. A sum of Rs.25,000/- under this head would be reasonable. The claimant would also be entitled to consequential attendant charges and nourishment in a sum of Rs.10,000/-. The learned counsel do not dispute that the medical expenses incurred by this claimant as per the actual Medical Bills would cumulatively be in a sum of Rs.1,22,697/-. Even in the case of this claimant, he would have to undergo a further surgery for removal of implants and cost of such surgery is estimated Rs.20,000/-. Therefore, this claimant would be entitled to Rs.20,000/- under this head.
18. This claimant, it is also asserted that was earning his livelihood being associated with the meat industry, but the other details are not forthcoming. Therefore, the appropriate notional income will have to be taken, and as already said, the appropriate notional income would be Rs.4,000/- per month. The claimant would be entitled for loss of income during the laid-up period of two months and that would be in a sum of Rs.8,000/-. The doctor has opined the permanent disability suffered by this claimant because of the injuries suffered as 14% of the whole body. As the details of the business and the nature of the work are not spoken about by the claimant in his evidence, the functional disability is taken at 10%. Therefore, towards the loss of future earning, the claimant would be entitled to Rs. 72,000/- capitalized as stated below. In which event, the claimant would be entitled to a total sum of Rs.2,58,000/- computed as follows:
For the foregoing, the following:
ORDER The appeals are allowed in part and the impugned judgments and awards in MVC Nos.4415 and 4416 of 2008 on the file of the Court of the Principal MACT & Chief Judge, Court of Small Causes, Bangalore are set aside. The claim petitions filed by these claimants – appellants are allowed in part granting compensation of Rs.4,00,000/- and Rs.2,58,000/- respectively. The respondent No.2 – Insurance Company shall deposit such amounts along with interest at the rate of 6% per annum from the date of the petition before the Tribunal till the date of actual deposit. However, the respondent No.2 will not be liable to pay interest on the amount awarded to the claimants as future medical expenses. The insurer – respondent No.2 shall deposit the aforesaid amounts within six weeks from the date of receipt of a copy of this judgment.
nv Ct:sr SD/- JUDGE