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2019 DIGILAW 1567 (KAR)

Bhanumathy v. Chandrakanthu R Patel Major

2019-07-04

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. Though these appeals were listed for admission, with the consent of the learned counsel for both the parties, the appeals are taken up for final disposal. 2. These appeals are preferred by the appellants/claimants against the judgment and award dated 07.01.2012 rendered by the Tribunal in MVC Nos.6431/2010 and 6432/2010 respectively, whereby the Tribunal has awarded compensation in a sum of Rs.1,39,000/- and Rs.96,800/- with interest at 6% p.a., The compensation awarded by the Tribunal in the aforesaid cases are found to be inadequate and also on the lower side. Therefore, the learned counsel for the appellants in these appeals seek for modification of the impugned judgment rendered by the Tribunal and suitable compensation be awarded. 3. The factual matrix of these appeals are as under: It is stated in the claim petition that on 16.09.2007 at about 5.15 p.m., while the petitioner in MVC No.6432/2010 was proceeding in a motorcycle bearing Regn. No.KA-02-EM-2555 as a pillion rider and the petitioner in MVC No.6431/2010 was riding the aforesaid Motorcycle on the extreme left side of the Kolar-Bangalore (MH-4) Road, near Battarahalli, Opposite to Ashraya Upachar Hotel, the driver of the Car bearing Registration No.KA-01/MB-2079 came from opposite direction i.e., from Bangalore towards Kolar and dashed against the motorcycle and caused the accident. Due to the impact, both the petitioners fell down and sustained grievous injuries as narrated in the claim petition made by them. Immediately, they were shifted to Deepa Hospital, K.R. Puram, where they took first aid treatment and then shifted to Hosmat Hospital, where the petitioners took treatment from 16.09.2007 to 22.09.2007. They have spent huge amount towards medical expenses. Due to the rash and negligent driving of the driver of the Car, Hoskote Traffic Police have registered a case in Crime No.579/2007 for the offence punishable u/s.279, 337 and 338 of IPC. 4. In pursuance of the notice issued in the claim petitions, the first respondent did not participate in the proceedings throughout, but the second respondent who has appeared through the counsel and filed written statement in detail resisting the averments made in the claim petition and contended that the first respondent has violated the terms of the policy by entrusting the Car to his driver who has no driving licence. Though the second respondent admits the issuance of Insurance Policy in respect of offending Car, but the liability is subject to the terms and conditions of the policy. The Petitions are bad for non-compliance of Section 134(c) and Section 158(6) of MV Act and prayed for dismissal of the claim petitions filed by the claimants. 5. Based on the pleadings of the parties, the Tribunal has framed issues in both the petitions and rendered common judgment by evaluating the evidence of PW-1 Palaniswamy, PW-2 Bhanumathi and PW-3 Dr.B.K. Sudhakanth. The claimants are said to be the husband and wife. The claimants have produced the documents at Exhibits P-1 to P-19 in order to substantiate their case. It is relevant to state that the wound certificate of PW-1 is marked at Ex.P2. Discharge summary report of PW-1 is marked at Ex.P8 and the discharge summary report of PW-2 is marked at Ex.P-11. Ex.P-6 is the Voluntary Retirement Certificate issued by Volvo Company, where PW-1 the injured was working. PW-1 has also produced two service certificates of him as per Ex.P7. Ex.P-10 is the X-rays of PW-1 (Four in number). Ex.P-13 is the X-rays of PW- 2 (Four in number). Ex.P-16 is another X-ray of PW-1 and Ex.P-19 is another X-ray of PW-2. These are all the documentary evidence coupled with the evidence of PWs.1 & 2 has been considered by the Tribunal apart from the evidence of PW-3, being the doctor who provided treatment to them in the Hosmat Hospital. On consideration of the evidence placed by them, the Tribunal has been awarded compensation which incorporated in the operative portion of the judgment. The same has been challenged in these appeals by urging various grounds. 6. Heard the learned counsel appearing for the parties and perused the oral and documentary evidence adduced and produced before this court. 7. Sri M.Babu, learned counsel for the appellants in these appeals has taken me through the evidence of PWs.1 & 2 who are the husband and wife, who met with an accident on 16.09.2007 at about 5.15 p.m., and the same has been revealed in the claim petitions claiming suitable compensation, contending that the Tribunal has erred in not properly assessing the disability and loss of earning capacity. But the Tribunal has not considered the evidence of PW-2 Bhanumathy, petitioner in MVA No.6432/2010, though she has been subjected to examination. But the Tribunal has not considered the evidence of PW-2 Bhanumathy, petitioner in MVA No.6432/2010, though she has been subjected to examination. PW-3 being the doctor has deposed in his evidence that PWs.1 & 2 came to his Hospital with the history of road traffic accident and on examination, found PW-1 has sustained fracture of left femur (intertrochantrice) lacerated wound over forehead and opined that petitioner has suffered permanent disability at 49% and whole body at 20% and also deposed that the petitioner has to undergo further surgery for removal of implants costing Rs.25,000/-. Further, the notional income taken by the Tribunal is also on the lower side and the same needs to be modified. The doctor has further deposed that PW-2 Bhanumathy had sustained fracture of neck of right femur with Ipsilateral fracture, shaft right femur and other injuries all over the body, she underwent operation for closed reduction with internal fixation right femur with inter locking nail, cannullated cancelous and screw fixation right neck of femur done on 17.09.2007. PW-3 has further deposed that he has examined PW-2 Bhanumathy on 09.07.2011 and found that healed surgical scar present over right hip and right thigh, movements of right hip and right knee are restricted and painful and gave his opinion that petitioner PW-1 has suffered permanent disability of right lower limp by 44% and whole body disability is 18%. The same has not been considered by the Tribunal, but considered only 10% disability for the whole body. Therefore, the disability factor held by the Tribunal requires interference, stating that the award of the Tribunal is inadequate and also on the lower side. It is further contended that the Tribunal has considered the income of the claimant PW-2 Bhanumathy in a sum of Rs.3,000/- per month. Merely because she is a house wife, though she has sustained injuries, which indicates in the discharge summary issued by PW-3 Doctor, the compensation awarded under all the heads by the Tribunal also found to be inadequate and also on the lower side. Further, the evidence of the doctor examined as PW-3 reveals that for removal of the implant, another sum of Rs.30,000/- is required. Further, the evidence of the doctor examined as PW-3 reveals that for removal of the implant, another sum of Rs.30,000/- is required. These are all the contentions taken up by the learned counsel for the appellants seeking the intervention of the Judgment and award passed by the tribunal by this court and prays for allowing the appeals by enhancing the compensation awarded by the Tribunal. 8. Per contra, the learned counsel appearing for the respondent No.2 Insurance Company submits that the contention taken up by the appellants in these appeals are vexatious and frivolous and are contrary to law and facts of the case. He has denied all the averments made in the claim petition, except which are specifically admitted. Further, it is contended that the first respondent has violated the terms of the policy by entrusting the Car to his driver, who do not possess driving licence nor obtained specific endorsement to drive the same. The respondent admits the issuance of the policy but the liability is subject to the terms and conditions of the policy and the petition is bad for non-compliance of Section 134(c) and Section 158(6) of the MV Act. Further, it is submitted that the Tribunal, on appreciation of oral and documentary evidence/material on record has rightly assessed the compensation and awarded just and fair compensation, which does not call for interference by this court and accordingly, prayed to dismiss these appeals. 9. It is the case of the appellants that, petitioner in MVC No.6431/2010 was examined as PW-1. The learned counsel for the appellants has taken me through the evidence of PW-1, who is no other than the husband of the injured Bhanumathy. It is stated that he was riding the Motorcycle and the petitioner in MVC No.6432/2010 Bhanumathy was a pillion rider of the Motorcycle bearing registration No.KA-02/EM-2555 and both were proceeding in the said motorcycle on Kolar- Bangalore road and when they came near Battarahalli, Opposite to Ashraya Upahar Hotel, suddenly the driver of the car bearing Registration No.KA-01-MB-2079 came from opposite direction and dashed against the motorcycle and caused grievous injuries to them and therereafter, they were shifted to Deepa Hospital at K.R. Puram, where they were given first aid treatment and shifted to Hosmat Hospital. 10. 10. In so far as the injured Palaniswamy in MVC No.6431/2010 is concerned, it is on record that he has sustained fracture of left femur (entrochanterio), communited fracture left greater trochanter with subcapital fracture neck of left femur and all over the body, and the same was reflected in the wound certificate issued by PW-3 being the doctor. The injured Palaniswamy, has further deposed that he underwent operation for open reduction internal fixation left hip with D.H.S. with circlage wire done and the movements of right hip and right knee are restricted and painful and PW-3 being the doctor who has provided treatment has assessed the permanent disability for right lower limb is 44% and whole body disability is 18%. But the Tribunal has considered disability factor as 10% and has not considered the income of the injured working in Volvo Company. Though the service record has produced, the Tribunal has held his income in a sum of Rs.5,000/- per month. Therefore, it requires interference by re-appreciating the evidence adduced and documents produced by PW-1. In respect of other heads also, the compensation awarded by the Tribunal are found to be on the lower side. Therefore, it requires consideration and to award suitable compensation even to the extent of medical expenses. These are all the grounds urged by the learned counsel for the appellants and seek for intervention of the impugned judgment rendered by the Tribunal in MVC Nos.6431/2010 and 6432/2010, by enhancing suitable compensation under all the heads. 11. The appellant in MFA No.4742/2012, the petitioner in MVC No.6431/2010 has sustained grievous injuries as stated above, for which the Tribunal has granted towards pain and sufferings in a sum of Rs.20,000/-. Having regard to the evidence of the doctor and the nature of the injuries suffered and keeping in view the fracture suffered by the appellant Palaniswamy, the Tribunal has considered Multiplier 9 and the same shall be retained. Both the injured Palaniswamy and his wife Bhanumathy were treated by PW-3 doctor in Hosmat Hospital, Bangalore, but the Tribunal has considered the income of PW-1 in a sum of Rs.5,000/- per month and the income of PW-2 in a sum of Rs.3,000/- per month. Both the injured Palaniswamy and his wife Bhanumathy were treated by PW-3 doctor in Hosmat Hospital, Bangalore, but the Tribunal has considered the income of PW-1 in a sum of Rs.5,000/- per month and the income of PW-2 in a sum of Rs.3,000/- per month. However, keeping in view the evidence of PWs.1 & 2, so also the relevant document produced by them, the Tribunal has been considered the income of the appellants, but there is no specific document produced by them derived by the income of both Palaniswamy and Bhanumathy, but the Tribunal has been considered the income at Rs.5,000/- so also the income at Rs.3,000/- respectively. 12. Keeping in view of the oral and documentary evidence adduced and produced by the parties, it is just and proper to enhance the compensation arrived by the Tribunal in respect of Palaniswamy is as under: 12.1 The Tribunal has awarded Rs.20,000/- towards Pain and Suffering, which is found to be inadequate and is on the lower side and therefore, it is just and proper to enhance the compensation under this head in a sum of Rs.60,000/-. Towards medical expenses, the Tribunal has granted an amount of Rs.40,000/-, and the same is required to be enhanced to Rs.45,000/-. Towards loss of amenities and future discomfort, the Tribunal has awarded a sum of Rs.10,000/-. As the petitioner has sustained grievous injuries and he has to undergo further surgery for removal of implants, which made the petitioner discomfort and therefore, the same requires to be enhanced to Rs.30,000/- . Towards loss of future earning capacity due to disability, the Tribunal has assessed the disability at 10% and granted a sum of Rs.54,000/-. But, the disability ought to be taken as 15% instead of 10%. Therefore, the compensation under the head loss of future income due to permanent disability would be Rs.81,000/- [Rs.5,000 x 12 x 9 x 15/100] . 12.2 Further, the Tribunal has awarded a sum of Rs.5,000/- only towards future medical expenses. Keeping in view the evidence of PW-3, I feel it is just and proper to enhance compensation to a sum of Rs.25,000/-. 12.2 Further, the Tribunal has awarded a sum of Rs.5,000/- only towards future medical expenses. Keeping in view the evidence of PW-3, I feel it is just and proper to enhance compensation to a sum of Rs.25,000/-. Sl.No. Heads Enhanced Compensation 1 Pain and Sufferings 60,000/- 2 For medical expenses and other incidental charges 45,000/- 3 Loss of amenities and future discomfort 30,000/- 4 Loss of earnings during the treatment 10,000/- 5 Loss of future earning capacity due to disability 81,000/- 6 Future medical expenses 25,000/- Total 2,51,000/- 13. In so far as, enhancement of compensation to the appellant in MFA No.4743/2012, the petitioner in MVC No.6432/2010, it is stated that the appellant Bhanumathy examined as PW-2 had sustained fracture of left neck of femur with ipsilateral fracture, shaft right femur and other injuries all over the body, for which the Tribunal has granted compensation towards pain and sufferings in a sum of Rs.20,000/-. Having regard to the evidence of PW-3 the doctor and keeping in view the fracture sustained by PW-2 Bhanumathy, the Tribunal has taken the Multiplier 13' and the same shall be retained as it does not call for interference. Both the injured Palaniswamy and his wife Bhanumathy were treated by PW-3 doctor in Hosmat Hospital, Bengaluru, the Tribunal has considered the income of PW-2 in a sum of Rs.3,000/- per month. However, keeping in view the evidence of PWs.1 & 2, so also for non-production of the relevant documents the Tribunal has considered the income of the appellant P.W-2, Bhanumathy, in a sum of Rs.3,000/- respectively. Discharge summary Ex.P.11 produced discloses that the Bhanumathy has sustained grievous and fractural injuries. Fixation of screw on the right neck was done. 14. In view of the above and Keeping in view the oral and documentary evidence adduced and produced by the parties, it is just and proper to enhance the compensation arrived by the Tribunal in respect of Bhanumathy is as under: 15. The Tribunal has awarded Rs.20,000/- towards Pain and Suffering, which is found to be inadequate and is on the lower side and therefore, it is just and proper to enhance the compensation under this head to a sum of Rs.50,000/-. Towards medical expenses, the Tribunal has granted an amount of Rs.9,000/-, and the same is required to be enhanced to Rs.14,000/-. Towards medical expenses, the Tribunal has granted an amount of Rs.9,000/-, and the same is required to be enhanced to Rs.14,000/-. Towards loss of amenities and future discomfort, the Tribunal has awarded a sum of Rs.8,000/-. As the petitioner has sustained permanent disability for right lower limb is 44% and whole body disability is 18% and she has produced Ex.P-17 to P-19 Outpatient record and inpatient record and X-rays yjr disability uis ought to be taken at 15%. The age of the appellant is mentioned as 48 years in the petition and 45 years in the discharge summary as per Ex.P-11. Therefore, loss of amenities requires enhancement and it is enhanced to Rs.28,000/- under this head. Towards loss of earning during laid up period and treatment, the tribunal has awarded a sum of Rs.18,000/- which appears to be just and proper and does not call for interference. Towards loss of future earning capacity due to disability, the Tribunal has assessed disability at 10% and granted a sum of Rs.46,800/-. But, the disability ought to be taken as 15% instead of 10%. Therefore, the compensation under the head loss of future income due to permanent disability would be Rs.70,200/- [Rs.3,000 x 12 x 13 x 15/100] . 16. Further, towards future medical expenses, the Tribunal has awarded in a sum of Rs.5,000/-. Keeping in view the evidence of PW-3, considering the nature of injuries sustained and disability it is just and necessary to enhance compensation in a sum of Rs.25,000/-. Sl.No. Heads Enhanced Compensation 1 Pain and Sufferings 50,000/- 2 For medical expenses and other incidental charges 14,000/- 3 Loss of amenities and future discomfort 28,000/- 4 Loss of earnings during the treatment 8,000/- 5 Loss of future earning capacity due to disability 70,200/- 6 Future medical expenses 25,000/- Total 1,95,200/- 17. In view of the above, the appellants/claimants are entitled for the enhanced compensation of Rs.1,12,000/- and Rs.98,400/- with interest at the rate of 6% p.a., from the date of petition till the date of deposit. Accordingly, the following order is passed: ORDER The appeals are allowed in part. The judgment and award dated 07.01.2012 passed by the Tribunal in MVC Nos.6431/2010 and 6432/2010 are hereby modified. Accordingly, the following order is passed: ORDER The appeals are allowed in part. The judgment and award dated 07.01.2012 passed by the Tribunal in MVC Nos.6431/2010 and 6432/2010 are hereby modified. The appellants (Claimants-1 and 2) are entitled for the enhanced compensation of Rs.1,12,000/- and Rs.98,400/- respectively with interest at the rate of 6% pa., in addition to the compensation awarded by the Tribunal from the date of petition till the date of deposit. The respondent Insurance Company is directed to deposit the aforesaid enhanced compensation with accrued interest before the Tribunal within a period of six weeks from the date of receipt of the copy of this order. On such deposit, the impugned judgment and award, in so far as it relates to deposit is concerned, the same shall remain unaltered. Office to draw the decree accordingly.