Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1379 (KAR)

Manjula v. Sannabora

2019-06-21

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Though these appeals were listed for admission, but with the consent of the learned counsel for the appellants and the learned counsel for the respondents in both the appeals, the matter is taken up for final disposal. 2. MFA No.7430/2012 is filed by the claimant/injured against the judgment and award rendered by the Tribunal in MVC.No.447/2010 dated 28.12.2011, whereby the Tribunal has awarded compensation in a sum of Rs.1,47,300/- with interest at 6% per annum. The appellant/claimant has filed this appeal seeking enhancement of compensation on the ground that the compensation awarded by the Tribunal is inadequate and also on the lower side. 3. MFA No.4725/2012 is filed by the Insurance Company challenging the judgment and award rendered by the Tribunal in MVC.No.447/2010 dated 28.12.2011, whereby the Tribunal has awarded compensation to the claimant, said to be the injured, directing the Insurance Company to pay the compensation on the ground that the respondent No.1 -driver of the goods tempo was having a valid and effective driving license. The appellant -Insurance Company has filed this appeal seeking intervention of this court on the ground that the Tribunal has erroneously recorded a finding that the driver of the goods tempo was holding a valid and effective driving license to drive the vehicle. 4. The factual matrix leading to these appeals are as under: It is stated in the claim petition that the claimant Smt. Manjula, aged about 28 years, was working as a worker in Poornima Industries, situated at Hebbal Industrial Area, Mysore and drawing salary in a sum of Rs.4,000/- per month. On 13.07.2009, she was unloading the cardboard paper sheets from the goods tempo bearing registration No.KA-09-A-7651 in the aforesaid factory premises. At that time, the aforesaid vehicle suddenly moved towards backwards and backside body of the tempo dashed to the claimant and as a result, she sustained grievous injuries over abdomen and other parts of her body. Immediately, she was shifted to Chandrakala Hospital, Mysore wherein she was admitted as inpatient from 13.07.2009 to 21.08.2009 for a period of 40 days. During hospitalization, she was completely bedridden and after discharge, she had undergone further treatment and took complete bed rest for six months at home. Immediately, she was shifted to Chandrakala Hospital, Mysore wherein she was admitted as inpatient from 13.07.2009 to 21.08.2009 for a period of 40 days. During hospitalization, she was completely bedridden and after discharge, she had undergone further treatment and took complete bed rest for six months at home. The accident occurred due to negligence on the part of the driver/respondent No.1 of the offending vehicle which belongs to the respondent No.2 and it was duly insured with the respondent No.3 - Insurance Company and the claim petition was filed before the Tribunal seeking suitable compensation. 5. After service of notice, the driver, owner and insurer of the offending vehicle appeared before the Tribunal, filed their written statement in detail, denying the claim made in the claim petition and disputing the place, date and time of accident, age, occupation, monthly income, manner of accident as well as nature of injuries said to have been suffered by the claimant. On these grounds, respondents prayed for dismissal of the claim petition. 6. Based upon the pleadings of the parties, the Tribunal has framed the issues and considered the evidence of PW.1 - Smt. Manjula (claimant), PW.2 - Doctor, PW.3 and PW.4 - Manager and co-worker of Poornima Industries, RW.1 - Manager of respondent No.3 Insurance Company and RW.2 -driver of the offending vehicle and relied upon the documents Ex.P1 to Ex.P12(a) and Ex.R1 and Ex.R2. During the enquiry before the Tribunal, the claimant has established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage. 7. The Tribunal, after evaluation of the oral and documentary evidence, has held that the accident had occurred due to rash and negligence of the driver of the offending vehicle and consequently, awarded total compensation of Rs.1,47,300/- with interest at 6% per annum from the date of petition till the date of deposit under the following heads: Sl.No. Particulars Compensation awarded by MACT 1. Pain and agony Rs.40,000/- 2. Medical Expenses Rs.36,300/- 3. Loss of earnings Rs.14,000/- 4. Attendant Charges Rs. 3,500/- 5. Special Diet Rs. 3,500/- 6. Loss of amenities Rs.50,000/- TOTAL Rs.1,47,300/- 8. Sri. Pain and agony Rs.40,000/- 2. Medical Expenses Rs.36,300/- 3. Loss of earnings Rs.14,000/- 4. Attendant Charges Rs. 3,500/- 5. Special Diet Rs. 3,500/- 6. Loss of amenities Rs.50,000/- TOTAL Rs.1,47,300/- 8. Sri. P. Nataraju, learned counsel for the appellant in MFA No.7430/2012 vehemently submitted that the Tribunal erred in not awarding any amount towards disability and future loss of income and that the compensation awarded towards pain and suffering, loss of amenities in life, loss of income during the period of treatment, medical expenses and incidental charges are on the lower side and prays for enhancement of the compensation. The appellant has taken me through the evidence of PW.1, PW.2 - Doctor who has assessed the disability at 36% to the whole body, Ex.P8 - salary certificate which shows that the claimant was working as a worker on a monthly salary of Rs.4,000/- and after the accident, she was paid monthly salary of Rs.2,500/-. Learned counsel for the appellant contended that the Tribunal has erroneously taken the income of the claimant at Rs.2,500/- per month, which requires intervention of this court, keeping in view the evidence of PW.1 and the evidence of the Doctor - PW.2 that the claimant has suffered disability at 36% to the whole body and also the wound certificate - Ex.P7, X-rays - Ex.P11. It is further contended by the learned counsel that, on account of the accident, the claimant had suffered bilateral fracture of ramus of pubis and ischium, fracture of both illium and fracture of left ala of sacrum and was treated as inpatient for a period of 40 days and the same has not been properly considered by the Tribunal while computing the award. It is further contended that the injured claimant was working in the Poornima Industries and drawing a salary of Rs.4,000/- per month. But on account of the injuries sustained the accident, she was not able to do the work which she was earlier discharging and now she is drawing salary in a sum of Rs.2,500/- per month. These vital evidence have not been appreciated by the Tribunal and the compensation awarded by the Tribunal is inadequate and on the lower side and it requires enhancement. Therefore, learned counsel for the appellant is seeking enhancement of compensation under all the heads which are incorporated in para 18 of the impugned judgment. 9. Sri. These vital evidence have not been appreciated by the Tribunal and the compensation awarded by the Tribunal is inadequate and on the lower side and it requires enhancement. Therefore, learned counsel for the appellant is seeking enhancement of compensation under all the heads which are incorporated in para 18 of the impugned judgment. 9. Sri. D.S. Sridhar, learned counsel for the appellant - Insurance Company in MFA No.4725/2012 and respondent No.3 in MFA No.7430/2012, addresses common arguments in both the appeals. Learned counsel contended that the Tribunal has not properly appreciated both oral and documentary evidence on record and has erred in awarding compensation in a sum of Rs.1,47,300/- with interest at 6% p.a. It is vehemently contended that the Tribunal ought to have held that the offending insured vehicle is not involved in the alleged accident and that in order to make a wrongful gain by the claimant, a false complaint has been lodged with the police after nine hours of the accident and based on her complaint, FIR has been recorded and thereafter, the police have investigated the matter. It is further contended that the Tribunal has erred in recording a finding that the claimant has narrated about the incident before the Doctor at 11.15 a.m. on 13.07.2009 as per the entries in wound certificate - Ex.P7, in fact the said entries are regarding the claimant being examined by the Doctor at 11.15 a.m., and the said document is issued on 9.8.2009, and as such the said entries are done on the date of issue of the document and that the entries are not done on 13.07.2009. These factual aspects are not considered by the Tribunal. Learned counsel contends that the Tribunal has not properly appreciated Ex.P10(b) and Ex.P10(c) entries which run contrary to each other. These factual aspects are not considered by the Tribunal. Learned counsel contends that the Tribunal has not properly appreciated Ex.P10(b) and Ex.P10(c) entries which run contrary to each other. Learned counsel for the appellant contends that Ex.P10(b) - Medical records (discharge summary) discloses that the claimant had suffered injures due to fall from a height of 6 feet in her house at about 10.30 a.m. on 13.07.2009 and Ex.P10(c) discloses that the claimant suffered injuries on account of a hit by four wheeler at Poornima Industries at about 9.45 a.m. on 13.07.2009 and that the same is an insertion by the hospital authorities at a later point of time in order to help the claimant to see that the incident of fall from height at home is converted to road traffic accident to help the claimant to make a wrongful gain out of unfortunate incident. FIR - Ex.P2 has been recorded by the police based on the complaint at Ex.P1. Based on the said FIR - Ex.P1, spot mahazar - Ex.P3, spot sketch - Ex.P4, IMV report - Ex.P5, charge sheet - Ex.P6 has been laid. 10. It is relevant to note, at this stage, the submission made by the learned counsel for the appellant Sri. P. Nataraju in MFA.No.7430/2012 that on account of the injuries suffered by the claimant in the accident, she has been given a reduction in salary and now she is drawing salary of Rs.2,500/- per month, Rs.1,500/- less than what she was earlier drawing, but the same has not been considered by the Tribunal in proper perspective. The driver of the offending vehicle has pleaded guilty in the case registered against him. These are the submissions made by the learned counsel in respect of the appeal preferred by the claimant injured for seeking suitable compensation. 11. Having regard to the strenuous contentions as taken by learned counsel for the claimant and so also the insurance company, it is relevant to note that PW.1 has alleged in the complaint - Ex.P1 that while she was unloading the goods from the Goods Tempo bearing Reg.No.KA-09-A-7651 at about 9.45 am, on 13.07.2009 in the factory premises with co-workers, the goods tempo rolled back suddenly, thereby she fell down and sustained injuries on her abdomen. The case was registered as per Ex.P2-FIR, Ex.P3 is the mahazar, Ex.P4 is the spot sketch, Ex.P7 is the wound certificate, Ex.P10(a to c) case sheets. 12. In Ex.P10 - MLC extract, it is mentioned that patient sustained injuries due to fall from 6' height in her house at about 10.30 a.m. on that morning. Again in the same case sheet, the patient has given a history stating that she was hit by 4 wheeler Tata bearing reg.No.KA-09-A-7651 at about 9.45 a.m. on 13.07.2009 at Poornima Industries. The said entries are marked as per Ex.P10b and P10c respectively. It is relevant to notice that as per Ex.10b, it is not mentioned as to who gave the history of fall from 6', but as per Ex.P10c, the petitioner herself has given the history of accident. The writing at Ex.P10b must be without the personal knowledge of the petitioner. In this regard, the Tribunal on consideration of documents such as complaint, FIR, charge sheet, spot mahazar and sketch and oral evidence of the driver who pleaded guilty before the criminal court, has held that the accident in question occurred due to rash and negligent driving of the Tempo bearing Regn.No.KA-09-A7651 driven by the first respondent as a result, petitioner sustained injuries. The said finding of the Tribunal is based on evaluation of entire oral and documentary evidence on record and I find no justifiable ground to interfere with the same. 13. As per Ex.P7 - wound certificate coupled with the documentary evidence of PW.2 - Dr. Devaiah, it could be seen that the petitioner had tenderness over hip region and abdomen with immobility to move the lower limbs. CT-scan pelvic and abdomen, shows small contusion 0.7 cm of right lobe of liver, minimal haempoeritoneum, fracture of both illum bone, both superior public rami and ischiopubic ramus of publis and ischiopubic and Ala of sacrum. Considering the nature of injuries sustained by the petitioner, I deem it appropriate to award another sum of Rs.10,000/- in addition to Rs.40,000/- awarded by the Tribunal towards pain and agony. 14. Petitioner has took treatment as an inpatient in Chandarkala Hospital, Mysore from 13.07.2009 to 18.08.2009 for a period of 35 days. Considering this aspect, the Tribunal has awarded Rs.3,500/- towards extra nourishment and Rs.3,500/- towards attendant charges. 14. Petitioner has took treatment as an inpatient in Chandarkala Hospital, Mysore from 13.07.2009 to 18.08.2009 for a period of 35 days. Considering this aspect, the Tribunal has awarded Rs.3,500/- towards extra nourishment and Rs.3,500/- towards attendant charges. But the same appears to be on lower side having regard to the gravity of injuries and nature of treatment taken. Hence, I deem it just and proper to award another sum of Rs.23,000/- under these heads. 15. It is contended by the appellant that prior to the accident she was hale and healthy. She was working in the Factory and getting salary of Rs.4,000/- p.m. Now on account of the injuries sustained in the accident, she is unable to do the work as earlier. Now she is getting the salary of Rs.2,500/- p.m. Even though the Doctor has assessed disability at 36% to the whole body, the Tribunal has erred in not awarding any amount towards loss of future income due to disability. Hence, the same has to be considered in this appeal. According to the evidence of Doctor - PW.2, the injuries sustained by the petitioner are grievous in nature. He has opined that in view of the patient condition, there is multiple pelvic bone fractures with hypovolemic shock and patient was treated conservatively with pelvic traction, blood transfusion and symptomatic medications. On clinical evidence and as per X-ray of the pelvis it shows malunion of the pelvic bones. On all these evidence and radiological findings, he opined that patient is having permanent disability of 36% to the whole body. Considering this medical evidence on record, I deem it just and proper to hold that the petitioner has suffered 20% disability to the whole body. Further, the age of the petitioner at the time of accident is 30 years. As per the decision of Hon'ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation and another, (2009) ACJ 1298, the multiplier for the age group of persons of 30 years is 17'. Accordingly, the compensation of Rs.61,200/- (Rs.1,500 x 12 x 17 x 20%) is awarded towards loss of future income. 16. As per Ex.P12, attendance register, the petitioner was absent from the job from 14.07.2009 upto 1st November for a period of 4 1/2 months. Accordingly, the compensation of Rs.61,200/- (Rs.1,500 x 12 x 17 x 20%) is awarded towards loss of future income. 16. As per Ex.P12, attendance register, the petitioner was absent from the job from 14.07.2009 upto 1st November for a period of 4 1/2 months. Having regard to the nature of injuries sustained by the petitioner and duration of treatment taken and loss of income during the period of treatment, it is just and proper to award another sum of Rs.10,000/- towards loss of earnings during laid up period in addition to Rs.14,000/- awarded by the Tribunal. 17. However, the compensation awarded by the Tribunal under other heads appears to be just and proper and the same does not call for interference of this Court. 18. Sri D.S. Sridhar, learned counsel for the insurance company in support of his contention has placed reliance on a decision of Hon'ble Supreme Court reported in between North West Karnataka Road Transport Corporation vs. Gourabai and others, (2009) 15 SCC 165 wherein it is held as under: "Motor Vehicles Act, 1988 - S.147 - Motor accident - if established - medical evidence (Ext.R-1) showed that deceased suffered injury due to fall in his own house - His brother stated that he did not know what was written in the document and his signature was taken on it - Held that a doctor will not take a signature on a paper mentioning something incorrect. Ex.R1 establishes that the injuries sustained were not on account of any vehicular accident - Tort Law - Negligence" Relying on the said judgment, learned counsel for the insurance company would contend that in the present case, the Tribunal ought to have held that Smt. Manjula, being the claimant had fallen from 6' height in her house as per the medical records which is at Ex.P-10(b) and the Tribunal has erred in not holding the same. It is pertinent to note that on perusal of Ex.P10(b), it is not mentioned as to who gave the history of fall from 6', but on perusal of the endorsement at Ex.P10(c), the petitioner herself has given the history of accident and accordingly, in all other records it is mentioned as MLC case. The writing at Ex.P10(b), was not within the personal knowledge of the petitioner. The writing at Ex.P10(b), was not within the personal knowledge of the petitioner. Even PW.4 - Smt. Suguna has deposed before the Court that she gave such a history before the Doctor, due to shock. Under the facts and circumstances, the decision relied on by learned counsel is not applicable to the instant case. Further, he has placed reliance on a judgment of this Court in MFA No.14501/2007 c/w 14502/2007 disposed on 17.08.2012. But the facts and circumstances of this case is altogether different as the vehicles involved in the accident were scooter and tractor - trailer and the manner in which the alleged accident described in the documentary evidence are totally contrary to the statements given by the claimants at the time of their admission to the hospital. But in the present case, there is abundant documentary evidence like complaint, FIR, charge sheet, spot mahazar and sketch and the oral evidence of the driver who has pleaded guilty before the criminal court. Only on a single and stray entry at Ex.P10b which is contrary to the other documentary evidence, cannot be believed by accepting the contention of the insurance company. The Tribunal has rightly held that the accident in question had occurred due to rash and negligent driving of the offending tempo. Under these circumstances, the decisions relied on by the learned counsel for the insurance company is not helpful to him, warranting interference of this Court. 19. 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 agony 40,000 50,000 Medical expenses 36,300 36,300 Loss of earnings 14,000 24,000 Loss of future income - 61,200 Attendant charges 3,500 30,000 Special diet 3,500 Loss of amenities 50,000 50,000 Total 1,47,300 2,51,500 Thus, in all the claimant is entitled for a sum of Rs.2,51,500/- as against Rs.1,47,300/- awarded by the Tribunal, and the enhanced compensation would be Rs.1,04,200/-. For the aforesaid reasons and findings, I proceed to pass the following: ORDER MFA No.7430/2012 filed by the appellant/claimant is allowed in part. The appellant/claimant is entitled for enhanced compensation of Rs.1,04,200/- with interest @ 6% p.a. from the date of petition till realisation. MFA No.4725/2012 filed by the appellant/insurance company is dismissed. The impugned judgment and award dated 28.12.2011 rendered by the Tribunal in MVC No.447/2010 is modified accordingly. The appellant/claimant is entitled for enhanced compensation of Rs.1,04,200/- with interest @ 6% p.a. from the date of petition till realisation. MFA No.4725/2012 filed by the appellant/insurance company is dismissed. The impugned judgment and award dated 28.12.2011 rendered by the Tribunal in MVC No.447/2010 is modified accordingly. The Reliance General Insurance Company Limited being the insurer, shall deposit the entire compensation with accrued interest, 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. The amount in deposit, if any, shall be transmitted to the Tribunal, forthwith. Office to draw the decree accordingly.