IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B.A.PATIL MISCELLANEOUS FIRST APPEAL NO.1513 OF 2012 (MV) BETWEEN:
M/S SRIRAM GENERAL INSURANCE COMPANY LTD., NO-5, 2ND FLOOR, MONARCH CHAMBERS INFANTRY ROAD BENGALURU-560 001 REPRESENTED BY ITS LEGAL OFICER … APPELLANT (BY SRI. H.N. KESHAVA PRASHANTH, ADV.) AND:
1. VIJAYALAKSHMI AGED ABOUT 47 YEARS W/O RAMESH H.K., R/AT NO.2, SIDHI VINAYAKA LAYOUT VIRUPAKSHIPURA, VIDYARANYAPURA OPP: MOTHER FRIDE APARTMENTS KODIGEHALLI BENGALURU-560 097 2. PRABHA J S/O JAYAKUMAR NO.1130, S.H. LAYOUT KAVAL BYRASANDRA R.T. NAGAR BENGALURU-560 032 … RESPONDENTS (BY SRI S.N. ASWATHA NARAYAN, ADV., FOR R-2) (R-1 SERVED AND UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.08.2011 PASSED IN MVC NO.3519/2010 ON THE FILE OF THE II ADDITIONAL JUDGE, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.3,22,600/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL DEPOSIT IN THE TRIBUNAL.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The present appeal has been filed by the appellant – respondent No.1 – Insurance Company assailing the judgment and award passed by the Motor Accident Claims Tribunal, Bengaluru (SCCH- 13) in MVC No.3519/2010 dated 21.08.2011.
2. Though the appeal is listed for admission, with the consent of learned counsel on both sides, it is finally heard.
3. The brief facts leading to the case are that; on 29.04.2010 at about 9.30 a.m when the petitioner was walking on Kodigehalli main road near Tennis Court, Bengaluru, the motor bike bearing registration No.KA-04-EG-4521 came rashly and negligently from behind and dashed against the petitioner. Due to the said impact, petitioner fell down and sustained the injuries. Immediately, she was taken to Columbia Asia Hospital, Hebbal for treatment and there she was got admitted to the said injuries and she has spent huge amount for the purpose of treatment. He further contends that because of the injuries, now she is unable to do any work. It is further contended that the petitioner was doing saree business and was earning Rs.5,000/- per month and for having sustained loss and injuries she filed the claim petition for claiming the compensation.
4. In pursuance of the notice, respondent No.1 – Insurance Company appeared and filed the written statement denying the contents of the petition. It is further contended that the policy was in force and has been issued in the name of respondent No.2 and the liability of the insurance company depends upon the terms and conditions of the policy and subject to the holding of the valid driving licence by the rider of the motor bike. On these grounds he prayed for dismissal of the petition.
5. Respondent No.2 did not appear before the Court inspite of service of notice and he has been placed exparte.
6. On the basis of the above pleadings, the Tribunal framed the following issues:
1. Whether the petitioner proves that on 20.04.2010 at about 9.30 a.m. when she was walking on the left side of the road cautiously, the rider of motor cycle bearing No.KA 04 EG 4521 came in a rash or negligent manner so as to endanger human life and dashed against her due to which she fell down and sustained injuries?
2. Whether the petitioner is entitled for compensation? If so, to what extent and from whom?
3. What Order or Award?
7. In order to prove the case of the petitioner, the petitioner got examined herself as PW1 and also got examined two witnesses as PWs.2 and 3 and got marked 12 documents as Exs.P1 to P12. On behalf of the respondents no evidence has been lead.
8. After hearing the parties to the lis, the impugned order came to be passed wherein the Tribunal has awarded compensation of Rs.3,22,600/. Assailing the said order, respondent No.1 is before this Court.
9. The main grounds urged by the learned counsel for the appellant – Insurance Company is that though the petitioner has produced the wound certificate as per Ex.P5 and discharge summary as per Ex.P6 of Columbia Asia Hospital, it does not disclose that the petitioner has sustained the fracture of occipital bone and she has been treated for the said injury. Further, he contends that when the petitioner has not sustained the fracture, then under such circumstances, question of granting any compensation for the disability by holding that the petitioner has sustained 25% disability is not correct. He further contended by drawing my attention to the evidence of PW3 – doctor who has been examined on behalf of the petitioner that the doctor during the course of cross examination has admitted that in the discharge summary, it has not been mentioned that there is a fracture of frontal bone and he has also further admitted that in the hospital records there is no mention of any fracture and he has also admitted that he has not treated the patient and only has assessed the disability and examined the petitioner on 20.04.2011. He has also further deposed that on the date of recent examination, no C.T. Scan was done. He further contends that even the compensation awarded on loss of future income without there being any disability and without there being any fracture appears to be not justifiable. He further contended that even the compensation awarded under the head pain and sufferings is also on the higher side. On these grounds, he prays for allowing the petition by modifying the award passed by the Tribunal.
10. Per contra, learned counsel appearing on behalf of respondent No.2 – owner of the vehicle vehemently contended by supporting the impugned judgment and award passed by the Tribunal and prayed for dismissal of the appeal.
11. The occurrence of the accident is not in dispute, so also the involvement of the vehicle in the accident and the said vehicle has been insured with Respondent No.1 – Insurance Company. As could be seen from the impugned award, the Tribunal after taking into consideration Ex.P5 – wound certificate, has come to the conclusion that the petitioner has sustained the lacerated injury over the back of scalp and that the C.T.Scan showed the fracture of occipital bone and SAH cerebral Oedema and frontal contusion and head injuries and thereafter, relying upon the evidence of PW3 – doctor who has deposed that the petitioner has suffered permanent physical disability of 25% due to the head injury and the cranial nerves also affected to the head and upper and lower limb due to which she has been prevented from doing her routine work and it is going to affect the future career of the petitioner, has come to the conclusion and has awarded an amount of Rs.1,17,600/- towards loss of future income. When the discharge summary Ex.P6 does not disclose that the petitioner has sustained fracture of occipital bone and SAH cerebral oedema and frontal contusion and mental conditions and under such circumstances, the Trial Court ought not have relied upon the evidence of PW3 – doctor. Even as could be seen from the evidence of PW3 which clearly indicates the fact that he is not the doctor who has treated the petitioner and he has not examined as per the notes and he has only examined the patient clinically and he has come to the conclusion that there is 25% physical impairment to the whole body due to the injury. The said assessment which has been arrived at by PW3 is not acceptable and does not base on any of the norms laid down by the Apex Court by assessing the disability. Under the said facts and circumstances of the case, I feel that the petitioner has permanent functional disability to the body to the extent of 25% is not correct and is not acceptable. If that is taken into consideration in the light of the above discussion, the compensation awarded under the head loss of future income to the extent of Rs.1,17,600/- is also not justifiable.
12. But however, though the petitioner has taken the treatment in Columbia Asia Hospital and she has been admitted in the hospital for a period of 13 days and was under the observation, subsequently she might have also taken the rest during the said period. The petitioner has taken the treatment for a period of two months, then under such circumstances, the petitioner is entitled to an amount of Rs.11,000/-(Rs.5,500/-x2) towards loss of income during the laid up period. Even as could be seen from the records, sofar as the medical and hospitalization charges are concerned, the Tribunal has awarded Rs.90,000/- basing upon the document which have been produced by the petitioner and the same appears to be just and proper, may not require any interference.
13. Even though the amount awarded under the head Conveyance, nourishment etc., and loss of amenities and future happiness does not require any interference. By taking into consideration, the injuries suffered by the petitioner, the compensation awarded under the head pain and sufferings, it appears to be on higher side and it requires to be reduced and the claimant – petitioner is entitled to (Rs.60,000/- - Rs.20,000/-) Rs.40,000/- for pain and sufferings. If the above said compensation is awarded by taking into consideration the evidences and the documents produced in this behalf, the said award appears to be just and proper.
14. Hence, the respondent – claimant is entitled for total compensation as mentioned below:
Pain and sufferings Rs. 40,000 Medical & hospitalization charges Rs. 90,000 Conveyance, nourishment etc., Rs. 15,000 Loss of amenities and future happiness Loss of income during the laid up period (Rs.5,500x2) Rs. 40,000 Rs. 11,000 TOTAL Rs.1,96,000 15. Keeping in view the aforesaid discussions, the respondent – claimant is entitled to compensation of Rs.1,96,000/-. After deducting the same out of Rs.3,22,600/-, there is excess of Rs.1,26,600/-. Keeping in view above aspect, I pass the following:
ORDER i) Accordingly the appeal is allowed in part.
ii) The judgment and award passed by the Tribunal in MVC No.3519/2010 is modified as indicated above.
iii) The appellant – insurance company is directed to deposit the compensation of Rs.1,96,000/- with 6% interest within a period of six weeks from the date of receipt of certified copy of this order.
iv) The respondent shall reimburse the amount in deposit to the claimant.
v) The registry is directed to draw the award accordingly.
vi) The statutory amount as well as the amount in deposit before this Court be transferred forthwith to the jurisdictional Tribunal.
SD/- JUDGE GH