IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL NO.4321 OF 2012 [MV] BETWEEN SRI. VENKATASWAMY, AGED ABOUT 36 YEARS, S/O. LATE GOVINDAPPA, R/AT SINGARAPPA BUILDING, GOVINDA SHETTY PALYA, ELECTRONIC CITY POST, OPP. MILK DAIRY, BANGALORE SOUTH. ... APPELLANT [BY SRI. K.T.GURUDEVA PRASAD, ADVOCATE] AND 1. V. MAHESH, MAJOR, S/O. VENUGOPAL, BELLANDURU, SARJAPURA ROAD, BANGALORE-560 037.
2. THE NEW INDIA ASSURANCE CO. LTD., NO.67/1, 1ST FLOOR, REDDY COMPLEX, WHITEFIELD ROAD, MAHADEVAPURA POST, BANGALORE-560 048. ... RESPONDENTS [BY SRI. A.N.KRISHNASWAMY, ADVOCATE FOR R-2.
NOTICE TO R-1 IS DISPENSED WITH VIDE COURT ORDER DATED 26.02.2015] THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.04.2011 PASSED IN MVC NO.3384/2010 ON THE FILE OF THE XVI ADDITIONAL JUDGE, MACT., BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR FINAL DISPOSAL, THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant in M.V.C. No.3384/2010 on the file of the Court of Motor Vehicle Accident Claims Tribunal, Bengaluru City [‘Tribunal’ for brevity] has preferred this appeal seeking enhancement of compensation.
2. I have heard the learned counsel for the appellant and also the learned counsel for respondent No.2/Insurance Company.
3. It is the case of the appellant that on 05.04.2010 at about 9.30 a.m., he along with his wife and minor son, who are the petitioners in M.V.C. No.3153 and 3154/2010 were proceeding on a motorcycle bearing reg. No.KA-05/EM- 5089 and when they reached near ‘Subba Reddy Neelagiri Thopu’, all of a sudden, the tractor bearing reg. No.AT0 2274 driven by its driver came from Central Silk farm in a rash and negligent manner, without observing any of the traffic rules and regulations and dashed against the aforesaid motorcycle, on account of which all of them fell down and sustained grievous injuries all over the body and the motorcycle was also badly damaged.
It is the case of the appellant/claimant that he was an employee in GE Thermometrics Private Limited and was earning Rs.12,000/- p.m. and was aged 34 years. On account of the accident, he sustained grievous injuries. His right leg was fixed with ring fixtator and he was unable to move around and the doctor has advised that his right leg may have to be amputated after 6 months. It is his further case that he was an inpatient for a total period of 140 days and as a result of the accident he has been permanently disable and it is affecting his avocation and activities.
Before the Tribunal, the claimant got examined P.Ws.1 to 5 and got marked Exs.P1 to 41. On behalf of the respondents, Ex.R1-Policy copy was produced and marked.
The Tribunal after perusing the material and evidence on record, awarded a total compensation of Rs.12,83,800/- under the following heads:
Particulars Amount in Rs.
1. Pain and suffering. … 1,00,000 2. Loss of income during treatment period … 1,20,000 3. Medical expenses. 4,77,000 4. Future loss of earning. … 4,60,800 5. Loss of amenities. … 30,000 6. Conveyance, attendant’s charges nourishment & diet.
… 20,000 7. Future surgery. …… 60,000 8. Vehicle repair. … 16,000 Total 12,83,800 4. Learned counsel for the appellant would submit that the compensation awarded under different heads are on the lower side. The Tribunal has taken the permanent disability at 20% as against 35% assessed by the doctor. He would contend that the appellant was treated as an inpatient for 140 days and he was treated for the injuries sustained by conducting following procedure:
1. Wound debridement and application of external fixator to right leg was done on 06.04.2010.
2. Interlocking nailing was done on 06.04.2010 for fracture shaft of right femur.
3. Wound debridement and free vastus lateralis myocutaneous flap cover was done on 07.04.2010.
4. Wound debridement of the flap margin necrosis was done on 22.04.2010.
5. Wound debridement with readjustment of external fixator was done on 30.04.2010.
6. Wound debridement and SSG was done on 08.05.2010.
7. Operation of Saphenous loop construction over right leg on 30.07.2010, free fibula microvascular osteocutaneous flap was done on 06.08.2010.
5. The learned counsel for the appellant has filed I.A. No.1/2013 for production of additional documents as additional evidence, seeking permission to permit him to rely on the said evidence for arriving at a proper conclusion and to enhance the compensation awarded by the Tribunal.
6. Learned counsel for respondent No.2/Insurance Company vehemently contends that the documents now produced by the appellant cannot be taken into consideration in this appeal as the said documents are disputed and the appellant may be put to strict proof of the same. He would submit that the Tribunal after considering the entire evidence has rightly awarded a just and reasonable compensation and it does not call for any interference and accordingly, he seeks to dismiss the appeal.
7. It is seen that there is no dispute with regard to the negligence on the part of the driver of the tractor in question and the liability of the Insurance Company to pay the compensation. However, the learned counsel for respondent No.2 has seriously disputed the additional evidence, which are relied upon by the learned counsel for the appellant. The list of additional documents which are sought to be produced are as under:
1. Copy of appointment order dated 20.08.2000.
2. Copies of seven salary certificates.
3. Copy of certificate issued by the Employer dated 08.08.2015.
4. Copy of the Bank statement.
5. Copy of Discharge Summary.
6. Copies of medical bills.
7. Copies of prescriptions.
8. Copy of one X-ray.
8. According to the claimant, he suffered multiple injuries all over the body including compound comminuted fracture of right leg tibia and right ankle joint and also fracture of right femur. He was treated at Sparsh Hospital by undergoing lot of treatment procedure with operation and thereby suffered heavy medical expenditure and also loss of income and thereby suffering 100% functional disability. It is his further submission that he has undergone bone grafting and fixator to his right leg and ankle joint. The learned counsel for the appellant would further submit that the claimant was working as a supervisor in M/s. GE Thermometrics Private Limited and was earning Rs.17,340/-
p.m. and now he is not being paid any salary by his employer and in that regard a certificate dated 08.08.2015 has been issued. Accordingly, the learned counsel submits that the additional factors have to be taken into consideration for awarding just and proper compensation by enhancing the compensation awarded by the Tribunal.
9. The aforesaid documents produced as additional evidence by the learned counsel for the appellant has been seriously disputed by learned counsel for respondent No.2/Insurance Company. He would submit that the claimant has to establish his claim by adducing evidence and in that event, sufficient opportunity be given to the Insurance Company to oppose the claim and hence, he submits that the matter may be remanded to the Tribunal for proper adjudication.
10. Considering the rival submission and the additional evidence sought to be produced by the appellant/claimant, I deem it proper to remand the matter to the Tribunal for considering the case afresh by permitting the parties to lead additional evidence if so advised. Accordingly, I pass the following:
ORDER The appeal is allowed. The Judgment and Award dated 01.04.2011 passed in MVC No.3384/2010 on the file of the XVI Additional Judge, MACT, Bangalore is set aside. The matter is remanded back to the Tribunal for consideration of additional evidence sought to be produced by the appellant/claimant.
The Tribunal is directed to permit the appellant/claimant to lead additional evidence if so advised for considering enhancement of compensation. In that event, the respondents shall be given an opportunity to oppose the same. The evidence already on record shall remain intact.
I.A. No.1/2017 filed for production of documents is disposed of accordingly.
The office is directed to send back the Lower Court Records forthwith.
Sd/- JUDGE.
Ksm*