IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.7453/2014 [MV] BETWEEN:
SRI R MURALIDHARA S/O L.S. RAMAMURTHY AGED ABOUT 42 YEARS RESIDING AT NO.649 BHAVANINAGAR, 2ND STAGE NEAR VIDYANIKETHANA SCHOOL ULLAL UPANAGAR MAIN ROAD BANGALORE.
(BY SRI.V JAVAHAR BABU, ADV.) AND:
BANGALORE METROPOLITAN TRANSPORT CORPORATION K.H. ROAD, BANGALORE REPRESENTED BY ITS MANAGING DIRECTOR.
(BY SRI D VIJAYA KUMAR, ADV.) ... APPELLANT ... RESPONDENT THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 13.10.2014 PASSED IN MVC NO.5716/2009 ON THE FILE OF THE IX ADDITIONAL SMALL CAUSE JUDGE & XXXIV ACMM, MEMBER, MACT-7, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The Claimant’s appeal for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 13.10.2014 passed in MVC No.5716/2009 on the file of the 9th Additional Small Causes and Additional Motor Accident Claims Tribunal, Bangalore (hereinafter referred to as ‘the Tribunal’ for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained by the claimant in a road traffic accident. It is stated that on 03.07.2003, when the claimant was waiting for the bus at Ullas bus stop, a BMTC bus bearing registration No.KA-01/F-783 came in a rash and negligent manner and dashed to the claimant. Due to which, he sustained injuries over the right orbit with laceration just above the eyebrow on the right side and there was mild cerebral oedema and abrasions all over the body. It is stated that he was working as labourer at Small Scale Industry, Peenya. He was inpatient for a period of 12 days.
3. On issuance of notice, the respondent/ Corporation appeared and filed its written statement denying the claim petition averments. Further, it stated that the accident had not occurred on 03.07.2003 and denied the involvement of the bus. It also stated that the claimant has created a concocted story and made false claim.
4. The claimant got examined himself as P.W.1 and also examined the doctor as P.W.2 and another witness, sister of the claimant as P.W.3., apart from marking the documents as Ex.P1 to Ex.P14. The respondent/ Corporation examined two witnesses as R.W.1 and R.W.2 apart from marking two documents Ex.R1 and Ex.R2.
5. The Tribunal initially, on assessing the material on record by its judgment and award dated 16.03.2011 dismissed the claim petition on the ground that the claimant has not proved the accident, against which, the claimant herein filed an appeal in MFA No.5130/2011, which was allowed by this Court by judgment dated 18.03.2014 and the matter was remanded to the Tribunal for considering the claim petition on merits. Subsequently, the Tribunal under the impugned judgment and award dated 13.10.2014 in appeal, awarded total compensation of Rs.4,16,900/- with interest at the rate of 6% p.a., from the date of petition till realization, excluding the future medical expenses of Rs.10,000/-, on the following heads:
1. Loss of future income arising out of 25% disability ::Rs.2,88,000/-
2. Pain and sufferings ::Rs. 25,000/-
3. Loss of amenities of life ::Rs. 30,000/-
4. Loss of marriage prospects ::Rs. 25,000/-
5. Loss of income during laid up period ::Rs. 18,000/-
6. Actual medical expenses ::Rs. 900/-
7. Future medical expenses ::Rs. 10,000/-
8. Conveyance ::Rs. 5,000/-
9. Attendant charges ::Rs. 5,000/- 10.Food, nourishment & diet charges ::Rs. 10,000/-
Total Rs.4,16,900/-
While awarding the above compensation, the Tribunal assessed the income of the claimant at Rs.6,000/- p.m. and assessed the whole body disability at 25%. The claimant, not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court praying for enhancement of compensation.
6. Heard the learned counsel for the appellant/claimant and learned counsel for the respondent/Corporation. Perused the entire lower court records, certified copy of which was made available by the learned counsel for the respondent, during the course of hearing.
7. Learned counsel for the appellant/claimant would submit that the quantum of compensation awarded by the Tribunal is on the lower side and seeks for enhancement of compensation . It is his submission that the doctor-P.W.2 has deposed that the claimant suffers from 50% of the whole body disability whereas the Tribunal without there being any reason and against the evidence of P.W.2-doctor assessed the whole body disability at 25% which is wholly erroneous and perverse. He further submits that the doctor-P.W.2 has given his opinion with regard to disability based on the guidelines of DGHS, WHO and AIMS. He further submits that the claimant has sustained injury to right orbit with laceration just above the eyebrow on the right side. He further submits that the claimant suffers mild cerebral oedema due to which the claimant has lost 50% of his memory. Hence, the Tribunal ought to have taken the whole body disability at 50% as deposed by the doctor-P.W.2. He submits that the claimant was inpatient for 12 days for treatment to the injuries sustained in the accident. It is further submitted by the learned counsel for the claimant that the Tribunal has awarded compensation of Rs.10,000/- on the head future medical expenses, which is on the lower side. Looking to the injuries suffered and evidence of the doctor, the claimant needs huge amount towards future medical treatment. Thus, he prays for enhancement of compensation on the head of future medical expenses.
8. Per contra, learned counsel for the respondent/ Corporation would submit that the compensation awarded by the Tribunal is just compensation, which needs no interference. It is his submission that the claimant was inpatient from 03.07.2003 to 14.07.2003. Ex.P7/discharge summary would indicate that as on the date of discharge he was stable and normal. He has not produced any material to establish that he had taken further treatment from 2003 onwards till the claim petition was filed in the year 2009. It is his submission that even though the accident had taken place on 03.07.2003, the claim petition came to be filed six long years after the accident i.e., on 19.08.2009. The delay for filing the claim petition is not explained by the claimant. No material is placed on record to indicate the treatment taken by the claimant between 2003 to 2010. The doctor in his evidence has stated that the claimant was discharged on 14.07.2003 and thereafter he examined him only on 02.02.2010. Further, he submits that the doctor-P.W.2 deposed before the Tribunal after more than 7 years from the date of discharge of the claimant from the hospital where he took treatment as inpatient. Further, learned counsel submits that the claimant himself has admitted in his cross-examination that he has not lost his memory and that he can travel in bus from one place to another. It is also on record that the claimant has not produced any documents in respect of his avocation. Looking to the evidence of P.W.1 and P.W.2-doctor, the compensation awarded by the Tribunal is much more than what he is entitled. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the certified copy of the lower court records, the only point which falls for consideration is as to whether the claimant has made out any ground for enhancement of compensation?
10. Answer to the above point would be in the negative for the following reasons:
The accident is of the year 2003. The accident occurred involving the bus bearing registration No. KA-01/F-783 and the accidental injuries suffered by the claimant are not in dispute in this appeal. Claimant’s appeal is for enhancement of compensation on the ground that the assessment of whole body disability is on the lower side and the Tribunal has failed to award proper compensation on the head of future medical expenses. In support of his claim, the claimant has examined the doctor as P.W.2 and placed on record Ex.P4-wound certificate, Ex.P7-discharge summary, Ex.P10-inpatient record. Ex.P4/wound certificate indicates that the claimant has suffered concussive head injury. Ex.P7-discharge summary indicates that the claimant was inpatient from 03.07.2003 to 14.07.2003. It further discloses that at the time of discharge i.e., on 14.07.2003, the claimant was stable and normal.
11. As per P.W.2-doctor, the claimant suffered from mild cerebral oedema with no intracranial bleed. P.W.2- doctor in his evidence further stated that the patient has memory disfunction and was advised neuropsychological assessment. Neuropsychological assessment showed diffuse involvement of lobe function with recent memory impairment. Hence he states that the claimant suffers from 25% disability. But, in the cross-examination, P.W.2-doctor has stated as follows:
“It is true that condition of the patient was fit for discharge on 14.07.2003”.
P.W.1/claimant himself in his cross-examination stated that “It is true that in Ex.P7 it has mentioned that condition of the patient was normal and stable”.
He has also further stated that he has not produced any document in support of memory loss and he can travel in bus from one place to another place. To a specific suggestion, the claimant states as follows:
“ My memory is not lost”
The claimant has come before the Court and deposed stating that he has not lost memory. When the claimant himself states that he has not lost memory, on what basis, P.W.2-doctor has come to the conclusion that the claimant suffers from 50% whole body disability is not known. The claimant has not suffered any fracture, but the injury suffered by the claimant is mild cerebral oedema. The doctor P.W.2 stated that he examined the claimant after 7 years from the date of discharge form hospital. When the evidence of P.W.1 and P.W.2 and documents Ex.P7 are read together, I am of the view that the claimant would not be entitled for enhancement of compensation.
12. The claimant states that the tribunal has awarded only Rs.10,000/- towards future medical expenses. The claimant has not placed on record any material to say that he requires future medical treatment and he has also not produced any medical records to show that he had taken treatment subsequent to his discharge on 14.07.2003. It is interesting to note that the accident had taken place on 03.07.2003, the claimant was inpatient from 03.07.2003 to 14.07.2003 for 12 days. Ex.P7-discharge summary would indicate that at the time of discharge, the claimant was stable and fit for discharge. The claim petition was filed after more than six years i.e., on 19.08.2009. The claimant has not placed on record any material to establish that he had taken treatment subsequent to his discharge from hospital i.e., on 14.07.2003 till filing of the claim petition or subsequent to filing of claim petition. Thus, on close scrutiny of the entire medical records and deposition of P.W.1/claimant, P.W.2-Doctor, it could be concluded that the claimant is not entitled for enhancement of compensation and the appeal is liable to be rejected. Accordingly, the appeal stands rejected.
Sd/-
JUDGE mpk/-* CT:bms