Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1366 (KAR)

M. K. Raghunath Shetty v. Balakrishna Rai

2019-06-20

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. This appeal is preferred against the judgment and award dated 05.09.2011 rendered by the Senior Civil Judge and AMACT, Karkala in MVC No.268/2006 seeking enhancement of compensation. 2. The factual matrix of the appeal is as under: It is stated in the claim petition that on 30.04.2001 while the petitioner was traveling in the bus bearing Reg.No.KA-19-A-369 from Mangalore towards Belvai near Mijar Garodi of Tenkamijar Village, the driver of the Tempo bearing Reg.No.KA-19-A-1628 came from opposite side in a rash and negligent manner and due to rash and negligent manner of driving of drivers of both the vehicles, they dashed against each other, as a result of the accident, the petitioner sustained injuries and he was shifted to Vijaya Hospital, Mangalore and he took treatment as inpatient for 7 days and has undergone medical surgery and he has spent huge amount towards medical expenses. At the time of accident, he was working as agriculturist and building contractor and was earning Rs.15,000/- p.m. On account of injuries, he has been permanently disabled and not in a position to do the same work in future. On all these grounds he filed the claim petition before the MACT seeking compensation. 3. After service of notice, first respondent remained absent and was placed exparte. Third respondent though appeared did not choose to file written statement. Second and fourth respondent entered appearance and filed separate written statements denying the petition averments and sought for dismissal of the petition. 4. Based upon the pleadings, the Tribunal framed the issues. In order to prove his case, petitioner examined himself as PW.1 and got marked Exs.P1 to P12. On behalf of respondents, no documents were produced nor any evidence was adduced. After hearing the arguments of learned counsel on both sides and on appreciation of oral and documentary evidence on record, the Tribunal passed the impugned judgment, awarding compensation of Rs.78,000/- with interest on Rs.68,000/- @ 6% from the date of petition till realisation. Further, the Tribunal held that respondent nos.1 and 2 are jointly and severally liable to pay 50% of the compensation and respondent nos. 3 and 4 are jointly and severally liable to pay 50% of the compensation with proportionate interest. But the primarily liability was fixed on respondent nos.2 and 4 being the insurers. Further, the Tribunal held that respondent nos.1 and 2 are jointly and severally liable to pay 50% of the compensation and respondent nos. 3 and 4 are jointly and severally liable to pay 50% of the compensation with proportionate interest. But the primarily liability was fixed on respondent nos.2 and 4 being the insurers. It is this judgment which is under challenge in this appeal seeking for enhancement of compensation. 5. Learned counsel for the appellant contends that the award passed by the Tribunal is contrary to the oral and documentary evidence available on record and the same requires to be modified. The Tribunal has erred in awarding meager compensation towards injury, pain and suffering as against the injuries sustained by the appellant and nature of treatment taken by him. Further, the compensation awarded towards medical expenses is also lower side and the same needs enhancement. He contends that prior to accident the appellant was hale and healthy and due to the accident he has suffered permanent disability and the doctor has assessed that he is having 20% of permanent disability on right forearm. But without considering this aspect, the Tribunal has awarded lower compensation towards disability and loss of amenities. Further the appellant was doing agriculture work and earning Rs.15,000/- p.m. but whereas the Tribunal has assessed income only at Rs.3,000/- p.m. which is highly arbitrary. Further, the compensation awarded towards medical expenses, food, attendant and conveyance charges is on lower side and the same needs enhancement. On all these grounds, the learned counsel for the appellant seeks for enhancement of compensation by allowing the present appeal. 6. Per contra, Sri O. Mahesh, learned counsel for the respondent no.4 denies the accident in question and the manner in which the petitioner has alleged. He contends that the driver of the bus at the time of alleged accident has driven the same without having valid or effective driving licence. He contends that there is no proof to show that the petitioner is permanently disabled. The doctor who has issued the certificate at Ex.P9 has not been examined in order to prove the disability. Further, he contends that there is no evidence to show that the petitioner was an agriculturist and that he was a building contractor and he disputes the income of the petitioner. The doctor who has issued the certificate at Ex.P9 has not been examined in order to prove the disability. Further, he contends that there is no evidence to show that the petitioner was an agriculturist and that he was a building contractor and he disputes the income of the petitioner. The Tribunal has pragmatically assessed all these oral and documentary evidence on record and has awarded suitable compensation to the petitioner under all heads and the same does not call for any interference and prays for dismissal of the appeal. Sri M.S. Sriram, learned counsel for the respondent No.2 adopts the contentions taken by Sri O. Mahesh and seeks for dismissal of the appeal. 7. Having regard to the strenuous contentions as taken by learned counsel for the appellant and so also, counter arguments advances by learned counsel for the insurance companies, it is relevant to state that PW.1 in his evidence has stated that due to negligence on the part of drivers of both the bus and tempo, the accident in question has occurred. In support of his contention the petitioner has produced documents such as Ex.P1 FIR, Ex.P2 wound certificate, Ex.P3 spot mahazar, Ex.P5 charge sheet, Ex.P6 IMV report. On the basis of this oral and documentary evidence, the Tribunal held that the accident in question was occurred due to negligence of both drivers of tempo and bus and due to that the petitioner sustained injuries. 8. As per Ex.P2 wound certificate, the petitioner has sustained abrasion over the forearm lower 1/3rd on the dorsum and pain and swelling and creptation at the upper 1/3rd middle 1/3rd junction of the right ulna haematoma. X-ray reveals right forearm ulna fractured. Injury No.2 is grievous in nature. After the accident the petitioner has taken treatment at Vijaya clinic, Mangalore. Considering the nature of injuries sustained by the petitioner and period of treatment undergone and so also after perusal of medical bills has rightly granted Rs.15,000/- towards pain and sufferings and Rs.20,845/- towards medical expenses. There is no need to interfere with the same. 9. Further, PW.1 in his evidence has stated that while taking treatment as inpatient, he has engaged attendant and has taken special nourishment food. But however, in the absence of any documentary evidence in that regard, the Tribunal has awarded Rs.3,000/- towards food, attendant and conveyance. There is no need to interfere with the same. 9. Further, PW.1 in his evidence has stated that while taking treatment as inpatient, he has engaged attendant and has taken special nourishment food. But however, in the absence of any documentary evidence in that regard, the Tribunal has awarded Rs.3,000/- towards food, attendant and conveyance. But it could be seen from the record that the nature of injuries suffered by the petitioner required him to engage attendant and he should have taken special nourishment of food. Further, he is a resident of Kanthavara village and he has taken treatment at Mangalore Vijaya Clinic. In this regard, he might have incurred expenses towards conveyance. Keeping in view these aspects, I deem it proper to award another sum of Rs.7,000/- under this head. 10. Pw.1 in his evidence has stated that he was an agriculturist and also a building contractor and used to earn Rs.15,000/- p.m. But no documents have been produced in this regard. In the absence of the same, the Tribunal has assessed Rs.3,000/- as monthly income of the petitioner. The accident is of the year 2001. Keeping in view the year of accident and so also the avocation of the petitioner as an agriculturist and also as a building contractor, it would be just and proper, if the income is taken at Rs.6,000/- p.m. As held by the Tribunal the nature of injury sustained by the petitioner disentitles him to work for a period of three months. Accordingly, taking the income at Rs.6,000/- p.m. petitioner is entitled for compensation of Rs.18,000/- towards of loss of earning during laid up period, as against Rs.9,000/- awarded by the Tribunal. 11. Further, PW.1 in his evidence has stated that he is permanently disabled and he is not in a position to continue his work. He contends that he is having 20% permanent disability over his right forearm. Ex.P9 disability certificate discloses that the petitioner has got restriction of pronation and supination about 10 degree flexion at the elbow is restricted to 10 degree and he complains of pain in the forearm. In this regard, learned counsel for the insurance company contends that there is no proof to show that he is permanently disabled and the doctor who has issued the certificate at Ex.P9 has not been examined in order to prove the disability and it will in no way affects his work. In this regard, learned counsel for the insurance company contends that there is no proof to show that he is permanently disabled and the doctor who has issued the certificate at Ex.P9 has not been examined in order to prove the disability and it will in no way affects his work. Hence, compensation of Rs.10,000/- awarded by the Tribunal is just and proper and there is no scope for interference of this Court. 12. Section 45 of the Indian Evidence Act, 1892 is relating to opinion of experts. With regard to medical science opinion of experts, it states that the opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such evidence could be admitted or how much weight should be given thereto, lies within the domain of the court. The opinion of an expert is primarily to assist the Court in arriving at a final conclusion. In the instant case, Ex.P9 the disability certificate has been issued by Dr. P. Umananda Mallya, the doctor who treated the petitioner. The has been exhibited and marked for the purpose of evidence before the Court. The contents of the certificate cannot be ignored on the ground that the Doctor who has issued it has not been examined. Therefore, taking into consideration the scope and object of Section 45 of the Evidence Act, it requires reassessment in respect of loss of future earning capacity due to permanent disability. Though the Doctor has not been examined, having regard to the evidence of PW.1 and the contents of Ex.P9 disability certificate, I deem it just and proper to hold that the petitioner has suffered 10% permanent disability. 13. As per the claim petition, the petitioner is aged about 47 years but in Ex.P2 wound certificate, the age of the petitioner is shown as 50 years. According to the decision of the Hon'ble Supreme Court reported in (Sarla Varma and others Vs. Delhi Transport Corporation and another, (2009) ACJ 1298) while calculating the compensation towards disability, the multiplier that has to be adopted for the age group of persons between 46 50, is 13. Accordingly, the compensation towards disability would be Rs.93,600/- (Rs.6,000 x 12 x 13 x 10%) as against Rs.10,000/- awarded by the Tribunal. 14. The Tribunal has awarded Rs.10,000/- towards loss of amenities of life due to grievous injuries. Accordingly, the compensation towards disability would be Rs.93,600/- (Rs.6,000 x 12 x 13 x 10%) as against Rs.10,000/- awarded by the Tribunal. 14. The Tribunal has awarded Rs.10,000/- towards loss of amenities of life due to grievous injuries. But it is relevant to note that the petitioner has suffered permanent disability of his right forearm, and he may be having difficulty with such kind of disability and even to lift heavy articles from his right upper limb. With that infirmity he has to suffer for the rest of his life. Under such circumstances, I deem it just and proper to award another sum of Rs.10,000/- towards loss of amenities. 15. The X-ray at Ex.P12 discloses that plating was fixed to fractured right ulna. Ex.P9 disability certificate shows that implant has to be removed. Keeping this in view, the Tribunal has awarded Rs.10,000/- towards future medical expenses, which appears to be on lower side. The inpatient bill discloses internal fixators fixed and for 7 days Rs.24,000/- was incurred towards medical expenses. Therefore, another sum of Rs.15,000/- is awarded towards future medical expenses. 16. In view of the discussion made above and with the altered factors, the compensation is re-worked out as under:- Particulars Compensation awarded by MACT Compensation by this Court Pain and suffering 15,000 15,000 Medical expenses 20,845 20,845 Nourishment of food, attendant and Conveyance charges 3,000 10,000 Loss of income during laid up period 9,000 18,000 Disability 10,000 93,600 Loss of amenities 10,000 20,000 Future medical expenses 10,000 25,000 Total 77,845 2,02,445 Thus, in all the claimant is entitled to a sum of Rs.2,02,445/- as against Rs.77,845/- (rounded off to 15 Rs.78,000) awarded by the Tribunal, and the enhanced compensation would be Rs.1,24,600/-. 17. The Tribunal while dealing with liability aspect, has held that the drivers of the offending bus as well as tempo, both are responsible for the accident and respondent Nos. 2 and 4 being the insurers are liable to the extent of negligence of 50% each. I find no justifiable ground to interfere with the said finding of the Tribunal and the same shall be maintained. For the aforesaid reasons and findings, I proceed to pass the following: ORDER Appeal is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.1,24,600/- with interest @ 6% p.a. from the date of petition till realisation. I find no justifiable ground to interfere with the said finding of the Tribunal and the same shall be maintained. For the aforesaid reasons and findings, I proceed to pass the following: ORDER Appeal is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.1,24,600/- with interest @ 6% p.a. from the date of petition till realisation. The impugned judgment and award rendered by the Tribunal in MVC No.268/2006 is modified accordingly. Respondent No.2 Oriental Insurance Co. Ltd., and Respondent No.4 United India Insurance Co. Ltd being the insurers of the offending vehicles, shall deposit the enhanced compensation with interest in the ratio of 50:50, before the Tribunal, within a period of six weeks from the date of receipt of copy of this judgment and on such deposit, the same shall be released in favour of the claimant, on proper identification. Office to draw the decree accordingly.