IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL No.7677 of 2011 (MV-I) C/W MISCELLANEOUS FIRST APPEAL No.1061 of 2011 (MV-I) IN MFA No.7677 OF 2011: BETWEEN:
SRI P. UMESH, S/O. PATELAPPA, AGED ABOUT 25 YEARS, FABRIC WORK IN VENKATESHWARA CLOTHING GARMENTS, RESIDING AT AROHALLI, GANTIGANAHALLI, SINGANAYATHAHALLI POST, YELAHANKA HOBLI, BANGALORE - 64.
(BY SRI MUSHTAQ AHMED AND SRI ABDUL KHADDAR, ADVOCATES) AND:
1. MANJULA ABHAYA CHANDRA, W/O. ABHAYA CHANDRA, AGED ABOUT 43 YEARS, RESIDING AT RAJAVATHI MANSION, ... APPELLANT JAINPET, MUDABIDARE, SOUTH CANARA DISTRICT (MANGALORE).
2. THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, 3RD FLOOR, GANESH BUILDING, BANTWAL CROSS ROAD, BANTWAL, SOUTH CANARA DISTRICT (MANGALORE). REPRESENTED BY ITS MANAGER.
.. RESPONDENTS (BY SRI O. MAHESH, ADVOCATE FOR R2; R1: NOTICE DISPENSED WITH VIDE COURT ORDER DATED 20.12.2013) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 26.06.2010 PASSED IN MVC No.1793 of 2008 ON THE FILE OF THE CIVIL JUDGE (SENIOR DIVISION), MACT, KUNIGAL, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
IN MFA No.1061 OF 2011: BETWEEN:
NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, 3RD FLOOR, GANESHA BUILDING, BANTWAL CROSS ROAD, BANTWALA, SOUTH CANARA, BY NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, No.144, SUBHARAM COMPLEX, M.G. ROAD, BANGALORE - 560 001. BY ITS MANAGER.
(BY SRI O. MAHESH, ADVOCATE) ... APPELLANT AND:
1. P.UMESH, S/O. PATELAPPA, AGED ABOUT 25 YEARS, FABRIC WORK IN VENKATESHWARA CLOTHING GARMENTS, RESIDENT OF AROHALLI, GANTIGANAHALLI, SINGANAYATHAHALLI POST, YELAHANKA HOBLI, BANGALORE - 560 064.
2. MANJULA ABHAYA CHANDRA, W/O. ABHAYA CHANDRA, MAJOR, RESIDENT OF RAJAVATHI MANSION, JAINPET, MUDABIDARE, SOUTH CANARA DISTRICT (MANGALORE).
... RESPONDENTS (BY SRI MUSHTAQ AHMED, ADVOCATE FOR R1;
R2: NOTICE DISPENSED WITH VIDE COURT ORDER DATED 28.07.2011) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 26.06.2010 PASSED IN MVC No.1793 of 2008 ON THE FILE OF THE CIVIL JUDGE (SENIOR DIVISION) AND ADDITIONAL MACT, KUNIGAL, AWARDING COMPENSATION OF Rs.3,46,000/- WITH INTEREST @ 6% PER ANNUM FROM THE DATE OF PETITION TILL DEPOSIT.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, NATARAJAN J., DELIVERED THE FOLLOWING:
JUDGMENT Though these appeals are listed for admission, with the consent of learned counsel on both sides, they are heard finally.
2. Miscellaneous First Appeal No.7677 of 2011 is filed by the injured claimant seeking enhancement of compensation, while Miscellaneous First Appeal No.1061 of 2011 is filed by the insurer seeking reduction in the compensation awarded by the Civil Judge (Senior Division) and Additional Motor Accident Claims Tribunal (hereinafter referred to as ‘Tribunal’, for the sake of convenience), at Kunigal, by assailing the judgment and award dated 26.06.2010 passed in MVC No.1793 of 2008.
3. We have heard arguments of the learned counsel for the appellant-insurance company as well as the respondent-claimant.
4. For the sake of convenience, the parties would be referred to in terms of their status before the Tribunal.
5. The claimant-Umesh filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation of Rs.20,00,000/- for the injuries sustained by him in a road traffic accident, inter alia, contending that on 01.11.2008 at about 12.45 am, the claimant along with other claimants in the connected matters before the Tribunal, were traveling in Tata Qualis vehicle bearing registration No.KA-02-P-7496 from Bangalore to Dharmasthala via Kunigal. When they reached near Sapthagiri Nursing College cross, C.T. Palya, Kunigal taluk, they stopped the vehicle to answer nature’s call. At that time, a bus belonging to Sugama Travels bearing registration No.KA-21-8209 driven by its driver with high speed in a rash and negligent manner, dashed to the Qualis vehicle. As a result, the claimant-Umesh and Chandrappa, sustained grievous injuries and Rangaram sustained multiple injuries and he later succumbed to the injuries. The claimant, initially took first aid at Kunigal Government Hospital. Later he was shifted to NIMHANS, then to Victoria hospital and was further treated at Sushrutha Nursing Home and Mallige Nursing Home, Bangalore. He has spent lakhs of rupees towards medical expenses. He has undergone surgeries. Due to the injuries, he is suffering disability. Hence, he filed the petition claiming compensation on various heads.
6. In pursuance to the notice, first respondent, being the owner of the vehicle, did not appear and was placed ex parte. The second respondent-insurer appeared through their counsel and filed statement of objections contending that the accident had taken place due to the negligence on the part of the driver of the Quails vehicle bearing registration No.KA-02-P- 7496 but the police had filed a false case against the driver of the bus and had further taken contention that the driver of the offending bus was not holding a valid driving licence. That the petition is bad for non- joinder of necessary parties. Further, it denied the averments made by the claimant in the claim petition in respect of nature of injuries, occupation, income and disability, as false and prayed for dismissal of the claim petition.
7. Based on the rival pleadings, Tribunal framed the following issues:
“1. Whether the petitioner proves that on 01.11.2008 at about 12.45 a.m. while the petitioner was traveling in Tata Qualis bearing Reg.No.KA-02-P-7496 near Sapthagiri Nursing College Cross, NH 48 road, C.T. Palya, Kunigal taluk to go to Dharmasthala, the driver of Sugama Travels Bus bearing Reg.No.KA-21-8209 drove the same in a rash and negligent manner and dashed against Tata Qualis vehicle and has caused the accident?
2. Whether the 2nd respondent proves that the accident has taken place due to negligence on the part of the driver of the Tata Qualis vehicle bearing Reg.No.KA-02-P-7496?
3. Whether the 2nd respondent proves that the petition is bad for non- joinder of necessary parties?
4. Whether the 2nd respondent proves that the driver of the sugama Travels Bus bearing Reg.No.KA-21-8209 was not holding a valid and effective driving licence?
5. Whether the petitioner is entitled for any compensation and if so, at what quantum and from whom?”
8. In order to substantiate his contentions, the claimant-Umesh examined himself as PW-2 and altogether including this claimant and other claimants, got marked 44 documents. The respondents did not let in any evidence except marking a copy of the insurance policy.
9. Considering the evidence on record, the Tribunal answered issue No.1 in the affirmative; issue Nos.2
10. Assailing the judgment and award passed by the Tribunal, the claimant had filed appeal in MFA No.7677 of 2011 seeking enhancement of compensation. On the other hand, respondent- insurance company has filed Miscellaneous First Appeal No.1061 of 2011 seeking reduction of compensation awarded by the Tribunal.
11. Learned counsel for the appellant-claimant contended that the claimant sustained grievous injuries namely, fracture of tibia and fibula on the left leg and also fracture of left clavicle and other injuries. The Tribunal instead of awarding Rs.2,00,000/-, has awarded a meager amount of Rs.50,000/- under the head pain and suffering. The claimant has spent lot of amount towards food, nourishment, transportation charges and other incidental charges, but the Tribunal has awarded only a meager amount on the said head. The claimant also requires future medical expenditure but the Tribunal has not considered the same. The claimant spent more than Rs.3,86,000/- towards medical expenses but the Tribunal has awarded only Rs.2,82,000/-. That income of the claimant taken by the Tribunal at the rate of Rs.3,000/- per month is very meager and in spite of suffering from disability, the Tribunal has not awarded any amount towards loss of earning capacity. Therefore, he prayed for awarding compensation under the head of loss of earning capacity as well as to enhance the total compensation.
12. Per contra, learned counsel appearing for the insurer contended that the medical expenditure awarded by the Tribunal is exorbitant. The medical bills are produced in duplication and the same has been paid by the Tribunal without verification. The claim of the petitioner is exorbitant and excessive under the head pain and suffering and hence prayed for reduction of the award amount.
13. Upon hearing the arguments of both the counsel and on perusal of the records, the points that arise for our consideration are:
“i) Whether the judgment and award of the Tribunal calls for interference by this Court?
ii) Whether the claimant is entitled for enhanced compensation or reduction of compensation as contended by the insurance company?
iii) What order?”
14. The claimant has established the factum of accident that occurred on 01.11.2008 at about 12.45 a.m., when he along with two other inmates were proceeding in Tata Qualis and when they reached near Sapthagiri Nursing College cross, C.T.Palya, Kunigal Taluk, they stopped the vehicle on the left side of the road for attending to nature’s call. At that time, a bus belonging to Sugama Travels bearing registration No.KA-21-8209 driven by its driver came and dashed to Tata Qualis, due to which the claimant and one Chandrappa sustained grievous injuries and the other inmate Rangaram succumbed to the injuries. The claimant in this appeal was shifted to NIMHANS and later took treatment at various hospitals. The accident occurred due to the rash and negligent driving by the driver of Sugama bus. The police registered a case against the driver of the bus for rash and negligent driving and also filed charge sheet. Ex.P-1 is the copy of the FIR. Ex.P-2 is the copy of the charge sheet and Ex.P-3 is the IMV report. Ex.P- 13 is the wound certificate of the appellant-claimant. Exs.P-14 to 23 are the medical bills pertaining to the claimant. The Tribunal, after considering the evidence on record held that the accident has occurred due to rash and negligent driving by the driver of the bus bearing registration No.KA-21-8209. Though the insurer has filed the appeal, it has not challenged the finding on the negligence but has challenged the quantum of compensation awarded by the Tribunal. Therefore, the only controversy in these appeals required for consideration is, as to, whether, the quantum of compensation awarded by the Tribunal is insufficient as contended by the claimant or exorbitant as contended by the insurance company.
15. Ex.P-13-wound certificate of the claimant shows that the claimant has suffered three fractures namely fracture of left tibia, fracture of left fibula and fracture of left clavicle. As per the opinion of the doctor, all the three fractures are grievous in nature. Ex.P-14 is referral card of the hospital. Ex.P-15 is the certificate issued by NIMHANS, Bangalore. Ex.P-16 is the medical certificate issued by Dr. N. Rama Reddy, Medical Superintendent of Mallige Hospital, which shows, the claimant had undergone surgery for the fractured bones. The claimant also examined PW-4 Dr. H.P. Shanthakumar. As per the evidence of the Doctor PW-4, the claimant-appellant was treated by Dr. S.Muthu, consultant Orthopedic surgeon and also by him. Claimant has undergone surgery of right femur bone and implants were fixed. He also identified Ex.P-39. Though the suggestion from the side of the respondent’s counsel that ‘he (PW-4) had not treated the claimant, the same was denied by the witness and he has stated that he along with Dr. S. Muttu treated the injured person. However, the claimant has not produced any disability certificate to show what was the actual disability suffered by him due to the fractured injuries. The Tribunal, by considering the evidence of the doctor and the claimant, has held that as there is no material produced before the Court, there is no functional disability suffered by the claimant. In our considered opinion, the finding of the Tribunal is incorrect.
Merely because the claimants have not elicited anything in respect of the disability from the doctor, a duty was cast upon the respondent’s counsel to ascertain what was the functional disability sustained by the claimant. It is seen from the evidence of the claimant that he has undergone surgery and implants are fixed and was admitted to the hospital on 01.11.2008 and was discharged on 19.11.2008. Therefore, duty is also cast upon the Tribunal, while awarding compensation, to ascertain what was the percentage of disability due to the injuries sustained by the claimant. So, by looking into the evidence of PWs.3 and 4 and the medical records, we propose to consider 20% as the disability to the whole body as the claimant has suffered three fracture injuries.
16. As regards income, the claimant has stated that he was earning gross salary of Rs.3,510/- and Rs.300- 975/- per day as part time salary. He has also produced Ex.P-34 salary certificate issued by one Venkateshwara Clothing Company-II, KHB Colony, Indultrial Estate, Yelahanka, Bangalore-64. The author of the said document has not been examined by the claimant to prove the income. Therefore, the Tribunal rightly disallowed Ex.P-34, however, considered the salary of Rs.3,500/- per month showing as notional income. When the claimant has specific case that he was earning Rs.3,500/- per month, the Court cannot consider the notional income of the claimant. Therefore, we propose to consider Rs.3,500/- as income per month. If Rs.3,500/- is the income and 20% of disability is considered, which comes to Rs.700/- per month and is multiplied by 12 and by adopting appropriate multiplier of 18, it comes to Rs.1,51,200/-(20% of 3500x12x18) and we propose to award Rs.1,51,200/- towards loss of earning capacity.
The Tribunal has awarded Rs.50,000/- towards pain and suffering. We are of the opinion that the said amount awarded by the Tribunal is adequate. Further, the Tribunal has awarded Rs.9,000/- towards loss of income during laid up period. By looking to the nature of the injuries, fractures and prolonged treatment, we are of the opinion that the claimant might have taken bed rest for at least six months. Therefore, we propose to award Rs.21,000/-(3,500x6) towards loss of income during the laid up period.
17. The claimant’s counsel contended that the claimant has undergone continuous treatment in the hospital. He has produced number of medical bills amounting to more than Rs.4,00,000/-. But the Tribunal has considered and awarded only Rs.2,82,000/-, which is meager.
18. Per contra, learned counsel for the insurance company vehemently contended that though the medical bills are produced, same are mixed up with the bills of other claimants and there is duplication in the medical bills. Therefore, he prayed for reduction in the award of compensation under the head medical expenses.
19. The counsel for the appellant-claimant also filed memo of calculation. The same was cross-checked by us. We find, some of the bills with respect to advance payments made to Mallige Hospital, are produced in duplication. On careful scrutiny and verification of the entire medical bills, we find, claimant has spent Rs.1,82,806/- towards medical expenses. Therefore, we propose to reduce the compensation towards medical expenses to Rs.1,82,806/- instead of Rs.2,82,000/- awarded by the Tribunal.
20. The Tribunal has also not awarded any compensation towards incidental charges for nourishment, attendant and conveyance charges. Therefore, we propose to award a sum of Rs.20,000/- towards nourishment, attendant charges and other incidental charges. However, the Tribunal has also not awarded any amount towards loss of amenities. By looking to the fractures of femur bone, tibia and fibula as well as clavicle bones, definitely, the claimant has to suffer loss of amenities through out his life. Therefore, considering the facts and circumstances of the case, we propose to award Rs.50,000/- under the head loss of amenities.
21. The re-assessed compensation in Miscellaneous First Appeal No.7677 of 2011 is as under:
Heads Compensation awarded by this Court (in Rs.)
The enhanced compensation shall also carry interest at the rate of 6% per annum from the date of claim petition till realization.
In the circumstance, though the insurance company has been successful in getting reduction of compensation on the head of ‘medical expenses’, nevertheless, the increase in the award of compensation on the other heads ultimately would result in the appeal filed by the injured claimant in Miscellaneous First Appeal No.7677 of 2011 being allowed-in-part and the appeal filed by the insurer in Miscellaneous First Appeal No.1061 of 2011 is dismissed.
Amount in deposit to be transmitted to the Tribunal forthwith.
Parties to bear their respective costs.
Registry to transmit the original record to the Tribunal forthwith.
Sd/- JUDGE Kmv/mv Sd/- JUDGE