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Karnataka High Court · body

2019 DIGILAW 1290 (KAR)

Srinivasa v. N. Nagaraju

2019-06-17

K.SOMASHEKAR

body2019
JUDGMENT : K. SOMASHEKAR, J. 1. Though these matters are listed for admission, with the consent of learned counsel on both sides, the same are taken up for final disposal. 2. Mfa No.6238/2012 and MFA No.6239/2012 are preferred by the claimants against the judgment and award dated 16.11.2011 rendered by the Prl.Senior Civil Judge and CJM, Tumkur in MVC Nos.53/2009 and 54/2009, respectively. 3. Mfa Crob Nos.115/2013 and 116/2013 are preferred by the insurance company against the judgment and award dated 16.11.12011 rendered by the Prl.Senior Civil Judge and CJM, Tumkur in MVC Nos.53/2009 and 54/2009 respectively. 4. Brief facts of the case is that on 13.07.2008 at about 3.45 p.m. the claimant in both the cases were standing on the left side of the road near the Hospital, Hoskere, Hagalawadi Hobli, to catch the bus to return to his native place. At that relevant point of time, the driver of the Bajaj Luggage Auto bearing Regn.KA-06 B 5957 drove the same in a rash and negligent manner with high speed and dashed against the claimants in both the cases and caused the accident. Due to the said incident, the claimants in both cases sustained injuries. Immediately they were shifted to the General Hospital, Chelur, after first aid they were shifted to General Hospital, Tumkur for further treatment and admitted as inpatient and took treatment and spent Rs.50,000/- and Rs.5,000/- respectively towards medical expenses. Prior to accident, they were hale and healthy and doing carpenter and agriculture work and due to the injuries sustained, they are not in a position to attend their regular work as prior to the accident. On these grounds, they filed separate claim petitions before the Tribunal, seeking compensation. 5. In lieu of service of notice, first respondent remained absent and was placed exparte. Second respondent entered appearance and filed its written statement denying the petition averments and sought for dismissal of the claim petitions. 6. Based on the pleadings of the parties, the Court below framed the issues. In order to prove their case, claimants in both the petitions were examined as PW.1 and PW.2 and besides examined one doctor as PW.3 and got marked Exs.P1 to Ex.P13. On behalf of respondents, RW.1 was examined and Exs.R1 to R7 were got marked. 6. Based on the pleadings of the parties, the Court below framed the issues. In order to prove their case, claimants in both the petitions were examined as PW.1 and PW.2 and besides examined one doctor as PW.3 and got marked Exs.P1 to Ex.P13. On behalf of respondents, RW.1 was examined and Exs.R1 to R7 were got marked. After hearing arguments of learned counsel for the parties and on appreciation of oral and documentary evidence available on record, the Court below passed the impugned common judgment, awarding Rs.21,600/- in MVC No.53/2009 and Rs.2,500/- in MVC No.54/2009. It is this judgment which is under challenge in these appeals and cross objections. 7. Learned counsel for the claimants in MFA No.6238/2012 contends that without considering the facts and circumstances of the case and without proper assessment of the injuries sustained by the claimant, the court below has proceeded to award lower compensation towards pain and suffering, loss of earnings during treatment and conveyance and incidental charges. Further, the court below has not awarded any compensation under loss of amenities of life, happiness, frustration and loss of future income. The income of the injured assessed by the court below is also on lower side and the same needs to be enhanced. 8. In MFA No.6239/2012 it is contended that as per Ex.P9 wound certificate, the claimant has suffered tenderness present over both legs. But the court below has awarded compensation of only Rs.2,500/- towards pain and suffering including medical expenses and the same needs to be enhanced. No compensation is awarded towards medical expenses, loss of future income, loss of amenities of life, happiness, enjoyment of life etc. and the same needs to be awarded in the present appeal. On these grounds, learned counsel for the claimants in both the appeals prays for enhancement of compensation by allowing the appeals. 9. Per contra, Sri E.I.Sanmathi, learned counsel for the insurance company in his cross objections contends that the impugned judgment passed by the court below is contrary to the materials available on record and against to the facts of the case and the same is liable to be set-aside. Further, he contends that the court below ought to have seen that as per the MLC extract produced by RW.1, the vehicle in question got turtled and it was not mentioned that claimant was pedestrian in the said extract. Further, he contends that the court below ought to have seen that as per the MLC extract produced by RW.1, the vehicle in question got turtled and it was not mentioned that claimant was pedestrian in the said extract. Since, the claimants were traveling in goods auto as gratuitous passenger, by colluding with police authorities have shown themselves as pedestrians to make illegal gain from the insurer. The court below ought to have seen that if the claimants were to shown as gratuitous passengers, then they would not have got compensation from the insurer. PW.2, the doctor had admitted the contents of the MLC extract and that itself was sufficient to dismiss the case against the insurer. It is further contended that the court below, on appreciation of the evidence and material on record has rightly awarded just and fair compensation, which does not call for interference and prays for confirming the judgment and award passed by the court below. 10. In the context of these strenuous contentions as taken by learned counsel for the claimants and so also, learned counsel for the insurance company, it is relevant to refer to Ex.P6 wound certificate which reveals that claimant in MVC No.53/2009 has sustained lacerated wound over the left side of scalp and fracture of left 1/3rd of femur, tenderness and swelling present over left thigh. As per the opinion of Doctor, injury no.2 is grievous in nature and injury no.1 is simple. Considering the nature of injuries, the court below has awarded Rs.17,000/- towards pain and suffering. In the absence of medical bills, Rs.2,000/- has been awarded towards medical expenses and Rs.2,600/- towards loss of earning during treatment. 11. Though the claimant has let in evidence of Doctor as PW.3, he has not produced disability certificate in this regard. Hence, the court below did not award any amount towards disability. PW.3 Doctor in his evidence has stated that claimant is suffering 39% disability with lower limb and 13% to the whole body. Further, he has opined that injury No.2 is grievous in nature which is fracture of femur and injury No.2 is simple in nature. Hence, the court below did not award any amount towards disability. PW.3 Doctor in his evidence has stated that claimant is suffering 39% disability with lower limb and 13% to the whole body. Further, he has opined that injury No.2 is grievous in nature which is fracture of femur and injury No.2 is simple in nature. By taking into consideration the gravity of injuries and nature of treatment taken by the claimant and so also on appreciation of oral and documentary evidence on record, I find it just and appropriate to award a global compensation in a sum of Rs.30,000/- to the claimant in addition to Rs.21,600/- awarded by the Tribunal. 12. In so far as claim in MVC No.54/2009 is concerned, the court below has awarded compensation of Rs.2,500/- to the claimant. As per Ex.P9 wound certificate, the claimant has suffered tenderness present over both the legs and as per the opinion of the Doctor, the said injury is simple in nature. The claimant has not produced any medical bills. But however, taking into consideration the nature of injuries sustained by the claimant, the compensation awarded by the Tribunal in a sum of Rs.2,500/- appears to be on lower side. Hence, I deem it appropriate to award a global compensation of Rs.7,500/- in addition to what has been awarded by the Tribunal. 13. Sri E.I.Sanmathi, learned counsel for the insurance company contends that there is delay in lodging FIR and the claimants were traveling goods auto as gratuitous passengers and falsely the offending vehicle has been fixed to claim compensation. But no convincing and acceptable evidence has been placed before the court below in this regard. If there is any delay in lodging complaint, it would in no way affect the right of the claimant in claiming the compensation. Mere taking contentions would not support the case of the insurance company in the absence of proving the said aspect by convincing and acceptable evidence. The court below has rightly held the liability on the insurance company to pay the compensation. I do not find any justifiable ground to interfere with same. For the aforesaid reasons and findings, I proceed to pass the following: ORDER MFA No.6238/2012 is allowed in part. The appellant/claimant is entitled for global compensation of Rs.30,000/- in addition to Rs.21,600/- awarded by the court below. MFA No.6239/2012 is allowed in part. I do not find any justifiable ground to interfere with same. For the aforesaid reasons and findings, I proceed to pass the following: ORDER MFA No.6238/2012 is allowed in part. The appellant/claimant is entitled for global compensation of Rs.30,000/- in addition to Rs.21,600/- awarded by the court below. MFA No.6239/2012 is allowed in part. The appellant/claimant is entitled for global compensation of Rs.7,500/- in addition to Rs.2,500/- awarded by the court below. The global compensation awarded in both the appeals shall not carry any interest. MFA Crob.Nos.115/2013 and 116/2013 filed by the insurance company are hereby rejected. The impugned judgment and award rendered by the Court below in MVC Nos.53/2009 and 54/2009 is modified accordingly. The insurance company shall deposit the global compensation before the court below, within six weeks, from the date of receipt of copy of this judgment, and on such deposit, the same shall be disbursed to the claimants, on proper identification. Office to draw the decree accordingly.