IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR.JUSTICE L.NARAYANA SWAMY MISCELLANEOUS FIRST APPEAL NO.1756 OF 2013 (MV) C/W MFA.CROB NO.138 OF 2014 IN MFA NO.1756 OF 2013 IN MFA No.1756/2013 BETWEEN:
UNITED INDIA INSURANCE CO. LTD. CHANNAGIRI ROAD BHADRAVATHI REPRESENTED BY ITS THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD. DIVISIONAL OFFICE P.B.NO.88, B.H.ROAD SHIMOGA – 577 201 … APPELLANT (BY MR.M.U.POONACHA, ADVOCATE) AND:
1. SRI.SURESH S/O B.BORAIAH AGED ABOUT 47 YEARS R/AT UPPER UTTA BHADRAVATHI 2. SRI.PUTTASWAMY S/O GOVINDAPPA AGED ABOUT 43 YEARS R/AT S.K. STREET OLD TOWN, BHADRAVATHI 3. SRI.B.S.MALLESH S/O SIDDAIAH AGED ABOUT 43 YEARS R/AT ‘MAHADESHWARA NILAYA’ HEBBANDI ROAD KAVALGUNDI BHADRAVATHI … RESPONDENTS (MR.SHARATH S.GOWDA, ADVOCATE FOR RESPONDENT NO.1 RESPONDENT NOS.2 AND 3 - SERVED) ***** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.11.2012 PASSED IN MVC No.9025/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ADDITONAL MACT–14, BHADRAVATHI, AWARDING A COMPENSATION OF RS.1,10,000/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
IN MFA CROB. No.138/2014 BETWEEN:
SRI.B.SURESH S/O B.BORAIAH AGED ABOUT 48 YEARS R/AT UPPER UTTA BHADRAVATHI PIN CODE – 577 301 … CROSS OBJECTOR (BY MR.SHARATH S.GOWDA, ADVOCATE) AND:
1. PUTTASWAMY S/O LATE GOVINDAPPA AGED ABOUT 45 YEARS R/AT S.K. STREET OLD TOWN, BHADRAVATHI PIN CODE – 577 301 2. B.S.MALLESH S/O SIDDAIAH AGED ABOUT 45 YEARS R/AT ‘MAHADESHWARA NILAYA’ HEBBANDI ROAD KAVALGUNDI BHADRAVATHI PIN CODE – 577 301 3. UNITED INDIA INSURANCE CO. LTD. CHANNAGIRI ROAD KAVALUGUNDI BHADRAVATHI PIN CODE – 577 301 REP. BY ITS DIVISIONAL MANAGER POLICY NO.240402 VALID FROM 31.10.2011 … RESPONDENTS (MR.M.U.POONACHA, ADVOCATE FOR RESPONDENT NO.3) ***** THIS MFA CROSS OBJECTION IS FILED UNDER ORDER 41, RULE 22 R/W SEC.173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 21.11.2012 PASSED IN MVC No.9025/2011 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ADDITONAL MACT–14, BHADRAVATHI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE APPEAL AND CROSS OBJECTION COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The insurance company has filed the appeal for setting aside the judgment and award of the Tribunal. The claimant has filed the cross objection seeking for enhancement of compensation awarded by the Tribunal.
2. The learned counsel for the insurance company submits that the claimant has made a false statement that he suffered injuries in a motor vehicle accident. In support of his claim, the claimant has produced Ex.P10 – the case sheet of Meena Nursing Home. In the case sheet the history of incident is mentioned as fall on 2.12.2010. It is submitted that if the claimant had suffered injury due to motor vehicle accident, it should have been recorded as RTA or MLC.
Secondly, in the case sheet it is mentioned that the claimant had taken treatment from 2.12.2010, whereas, Ex.P2 – FIR is dated 19.12.2010. Therefore, it is submitted that lodging the complaint is an after thought. It is further submitted that PW2–Dr.H.R.Narendra in his examination-in- chief has stated that he treated the claimant for having suffered injuries in a motor vehicle accident. But, in the cross-examination, he has deposed that on 2.10.2010, the claimant had visited the hospital for having suffered injuries due to a fall. After 17 days, the claimant had requested him to refer the case as MLC to the police. Consequently, the doctor has written to the police resulting in registration of a case in Crime No.149/2010 for the offence punishable under the provisions of IPC and Motor Vehicle Act. It is therefore submitted by referring to Exs.P2 and 10 and the evidence of PW2 that the claimant in order to get compensation has made a false claim. Therefore, submits to set aside the judgment and award of the Tribunal.
3. The learned counsel for the claimant, who is the cross objector, vehemently argues to dismiss the appeal filed by the insurance company. It is submitted that as per Ex.P10, on 2.12.2010 at about 10.30 a.m., the claimant was hit by a bike. But, it has not been properly recorded by the doctor. Hit by a bike is also considered as an accident for the purpose of the Motor Vehicle Act. Ex.P6–wound certificate issued by Meena Nursing Home and Ex.P10 – Medico Legal Certificate in certificate No.1437/2010 dated 13.12.2010 specifically refer about the road traffic accident. On the basis of the complaint the police have summoned IMV report. It is true that since the doctor had not properly recorded the case as RTC or MLC for the purpose of registration of the case, the claimant has reminded the doctor by requesting him to forward his case to the police to register the same. Consequently, it was forwarded. Therefore, there is no error on the part of the doctor and there is no contradictions and infirmity in the evidence of PW2.
4. It is further submitted that as per Ex.P6–wound certificate, the claimant has suffered two grievous injuries and the evidence of PW2–the doctor supports the case of the claimant. It is submitted that the Tribunal has awarded a very meager compensation. Hence, it is submitted to enhance the compensation proportionate to the injuries suffered by the claimant.
5. Heard the learned counsel for the respective parties.
6. The learned counsel for the insurance company has strenuously relied on Ex.P10–case sheet and evidence of PW2–the doctor. Before going further it should be borne in mind, that the Tribunal is neither a trial court nor civil court nor a criminal court. The proceedings is summary in nature. For the purpose of considering a medico legal case, examination is registration of FIR, the investigation done, charge sheet filed, IMV report and the mahazar. In this case, these documents are available on file and the same were perused by the Tribunal.
7. In order to examine the case of the insurance company, I have gone through the Ex.P10–certificate issued by Meena Nursing Home. It reveals that the claimant was treated for the injuries suffered by him due to hit by a bike. He has taken treatment from 2.12.2010. But, the case was not referred to the police. Hence, he had requested the doctor, who has admitted in his cross- examination about forwarding the report to the police on the basis of the request made by the claimant. There is nothing strange in doing so. Ex.P2 – FIR was registered on 19.12.2010. Under the relevant column for occurrence of vehicle accident, the date is mentioned as 2.12.2010. That covers the date of accident. The evidence of PW2-the doctor, the wound certificate, x-rays along with case sheet, medical bills reveal that the claimant had suffered fractures. In the circumstances, I hold that there is material in order to arrive at a conclusion that the claimant had suffered injuries in a motor vehicle accident to claim compensation.
8. The Tribunal has referred to the nature of injuries suffered by the claimant at paragraph 17, to the effect that Ex.P6–wound certificate and Ex.P10–case sheet reveal that the claimant sustained fracture of middle and lateral malleous of right ankle and he had taken treatment for 22 days in Meena Nursing Home, from 2.12.2010 to 24.12.2010 and undergone surgery on 13.12.2010 and implants were inserted. Ex.P8–31 prescriptions and Ex.P9-
53 payment receipts also are made available in the LCR. Considering the nature of injuries and medical records, the compensation of `40,000/- awarded towards ‘pain and suffering’, is on the lower side. Hence, additional compensation of `10,000/- is awarded towards ‘pain and suffering’.
9. The Tribunal has awarded `20,000/- towards ‘loss of amenities, future unhappiness and discomforts’. The same is on the lower side. Hence, the same is enhanced to `40,000/-.
10. The compensation of `39,600/- awarded towards medical expenses is just and proper and the same is retained.
11. The Tribunal has awarded compensation of `5,000/- towards ‘loss of income during treatment and laid up period’. The same is on the lower side. Considering the occupation of the claimant and the laid up period, an additional compensation of `10,000/- is awarded towards loss of income during treatment and laid up period.
12. The compensation of `5,400/- awarded towards ‘attendant charges and miscellaneous expenses’ is just and proper and the same is retained.
13. The claimant had undergone surgery and implants were inserted. The same are to be removed. However, the Tribunal has not awarded any compensation towards removal of implants. Hence, I feel it just and proper to award a sum of `20,000/- towards ‘future medical expenses’.
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14. Therefore, the claimant is entitled to compensation as follows:
Pain and suffering Loss of amenities, future unhappiness and discomforts Medical expenses Loss of income during treatment and laid up period Attendant charges and miscellaneous expenses Future medical expenses TOTAL 15. The appeal filed by the insurance company is dismissed. The cross objection filed by the claimant is allowed in part. The claimant is entitled to compensation of `1,70,000/- as against `1,10,000/- awarded by the Tribunal, with interest at 6% from the date of petition till payment.
Sd/- JUDGE AHB