Nasrulla v. Icici Lambard General Insurance Co Ltd. By Its Manager, Bangalore
2020-06-18
K.NATARAJAN
body2020
DigiLaw.ai
JUDGMENT K. Natarajan, J. - This appeal is filed by the appellant-claimant being aggrieved by the award passed by the Principal Civil Judge (Sr.Dn.) and Additional M.A.C.T., Chitradurga (hereinafter referred to as 'Tribunal') in MVC No.544/2009, dated 12.08.2011. 2. Heard the arguments of learned counsel for the appellant-Sri N.Spoorthy Hegde as well as learned counsel for respondent No.1-Sri A.M.Venkatesh. 3. The status of the parties before the Tribunal is retained for the sake of convenience. 4. The case of the claimant is that he has filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'M.V. Act') for claiming compensation of Rs.3,00,000/- for the injuries sustained by him in the road traffic accident, inter-alia contending that on 24.01.2009 when the petitioner while cleaning the bus in front of the bus owner's house at J.P.Nursing Home at Chitradurga at about 9.30 p.m., at that time the driver of tractor-trailer bearing Registration No.KA-16/T-821 & 822 came from V.P.Extension side in a rash and negligent manner and dashed to the petitioner. Due to which, he sustained grievous injuries, took treatment in the hospital and spent Rs.30,000/- towards medical expenses. Hence, claimed the compensation on various heads. 5. Respondent Nos.1 and 2 appeared through their counsel. However, respondent No.2-Insurance Company filed the objection by denying all the averments made in the petition as false and further denied the rash and negligent driving of the driver of the tractor-trailer. The vehicle was also not insured with the respondent and hence, prayed for dismissing the claim petition. 6. Based upon the pleading, the Tribunal has framed the following issues: "i) Whether the petitioner proves that he sustained injuries in the alleged R.T.A. occurred on 24-01-2009 at about 9.30 P.M., beside J.P.Nursing Home, in front of Mruthyunjaya Bus owner's house, Chitradurga on account of actionable rash and negligence of driver of Tractor trailer bearing No.KA-16/T-821? ii) Whether the petitioner proves that he is entitle for compensation? If yes, how much and from whom? iii) What order or award?" 7. To substantiate the contentions, the petitioner got examined himself as PW.1 and got marked five documents. Respondent No.2 has not led any oral evidence except marking Ex.R1-copy of the policy. After hearing the arguments, the Tribunal answered issue No.1 in the affirmative and awarded compensation of Rs.20,000/-. Assailing the same, the claimant has filed this appeal for enhancement of compensation. 8.
Respondent No.2 has not led any oral evidence except marking Ex.R1-copy of the policy. After hearing the arguments, the Tribunal answered issue No.1 in the affirmative and awarded compensation of Rs.20,000/-. Assailing the same, the claimant has filed this appeal for enhancement of compensation. 8. Learned counsel appearing for the claimantappellant has strenuously contended that the Tribunal has committed error in awarding a meager compensation of Rs.20,000/- for the grievous injuries and two simple injuries sustained by the petitioner. In spite of production of wound certificate marked under Ex.P3, which clearly shows that the claimant has sustained fracture of humerus bone. The Tribunal also not awarded any compensation towards food, nourishment, attendant charges, loss of income during the laid-up period and hence, prayed for enhancing the compensation by allowing the appeal. 9. During the pendency of this appeal, the learned counsel has also filed Interlocutory Application No.1/2015 under Order 41 Rule 27 of Code of Civil Procedure, 1908 (for short 'CPC') for seeking permission to produce additional evidence and for accepting the documents in respect of treatment taken by the claimant along with the photographs. Learned counsel for the appellant has further contended that these documents were unable to produce by the claimant before the Tribunal due to the mistake of the counsel and due to the ignorance of the law by the injured claimant. If the said document is considered, then the award of compensation would be more. Therefore, prayed for enhancing the compensation based upon the additional documents produced along with the Interlocutory application. 10. Per contra, learned counsel appearing for the insurer has seriously objected the production of the documents by the claimant and contended that the accident was occurred on 24.01.2009. Even if the claimant had took treatment in the hospital as inpatient, but no document produced to show that what was the medical expenses incurred by him. That apart, if at all any disability, that might have occurred due to some other reasons, but not due to the injury sustained in the said accident, the disability certificate produced by the claimant was issued by a nontreating doctor on 26.02.2015 after a lapse of six years. That cannot be considered for assessing any loss of income on the ground of disability.
That cannot be considered for assessing any loss of income on the ground of disability. If at all, these documents are admitted in the evidence, the matter is required to be remanded back to the Tribunal for giving an opportunity to the Insurance Company for cross-examining the claimant as well as the Doctor who has issued the disability certificate. Therefore, without any document to show that the claimant was continuously under the treatment for the injury sustained by him in the accident, the Court cannot enhance the compensation by granting any award under the head of loss of earning capacity due to the disability. Therefore, prayed for dismissing the appeal as well as Interlocutory application. 11. On the other hand, the learned counsel for the appellant has further contended by way of reply that even if the disability certificate is not considered, though the claimant is suffering from 53% of disability to the left upper limb, but the case sheet issued by the Government Hospital, Chitradurga cannot be discarded as the case sheet reveals that the petitioner was got treated in the hospital from 24.01.2009 and discharged on 17.02.2009 and he was continuously under the treatment. There is a reference available that he has undergone treatment as in-patient for more than 20 days which goes to show that the injury is a fracture and grievous injury. Therefore, prayed for accepting the documents as additional evidence. 12. Upon hearing the arguments and rival contention of both the counsel for the parties and on perusal of the records, the points that arise for my consideration are: "1. Whether the appellant has made out sufficient ground to allow the Interlocutory Application under Order 41 Rule 27 of CPC for production of additional evidence. 2. Whether the claimant is entitled for enhancement of compensation." 13. On perusal of the record, it is not in dispute that the accident dated 24.01.2009 was occurred due to the rash and negligent driving of the driver of the tractortrailer, due to which, the claimant has sustained injuries. Out of which, he has sustained two simple injuries and one fracture injury as per Ex.P3-the wound certificate issued by the Government Hospital. Admittedly, the claimant has not adduced any additional evidence in order to show that he was suffering from disability by examining any Doctor during the pendency of the claim petition and not produced any disability certificate.
Out of which, he has sustained two simple injuries and one fracture injury as per Ex.P3-the wound certificate issued by the Government Hospital. Admittedly, the claimant has not adduced any additional evidence in order to show that he was suffering from disability by examining any Doctor during the pendency of the claim petition and not produced any disability certificate. Based on the document Ex.P3, the Tribunal has awarded Rs.20,000/- as a global compensation without assailing any proper reason for not awarding any compensation under the heads of food, nourishment, attendant charges, loss of income towards laid up period and loss of amenities, if any. Even though the claimant is not able to produce any disability certificate, but the Tribunal while assessing the compensation has to consider the injuries sustained by the claimant and award just and fair compensation to the injured claimant or legal heirs of the deceased who died in the accident. The Tribunal cannot blindly award a meager amount by stating that there is no evidence produced. Even the Tribunal can award a proper compensation by looking to the wound or disability by making a Court observation. Therefore, I hold that the Tribunal had erred in awarding meager compensation. The additional document produced by the claimant is case sheet issued by the District Hospital, Chitradurga which go to show that he was treated as in-patient from 24.01.2009 till 17.02.2009. It is clearly mentioned that he has sustained fracture of lower end of left humerus along with other two simple injuries as per Ex.P3. There is no dispute that the claimant has suffered a grievous injury in the accident apart from two simple injuries. Such being the case, the additional document i.e., the case sheet produced by the claimant is required to be considered as additional evidence for the purpose of assessing a fair compensation. The photographs and the X-ray film which also reveals the malunion of the humerus bone. Though the disability certificate is issued by the doctor on 26.02.2015, but in view of the inordinate delay in getting the disability certificate after six years of the accident and without any connecting evidence for taking continuous treatment, the said disability certificate cannot be permitted to produce as additional evidence at this stage after six years.
Though the disability certificate is issued by the doctor on 26.02.2015, but in view of the inordinate delay in getting the disability certificate after six years of the accident and without any connecting evidence for taking continuous treatment, the said disability certificate cannot be permitted to produce as additional evidence at this stage after six years. Even if the matter is remanded back to the Tribunal for giving finding on the disability certificate, that will not serve any purpose and it may cause further delay in disposal of the petition, since, this appeal itself is pending nearly for eight years. Therefore, looking to the facts and circumstances of the case, the claimant is permitted to produce only case sheet and his photographs and not the disability certificate. Accordingly, I.A.No.1/2015 is allowed-in-part. 14. On perusal of the records and as per Ex.P3, the additional documents i.e., hospital case sheet, the claimant sustained two simple injuries and one fracture injury. The claimant would have suffered lot of pain and agony. Therefore, he is entitled for Rs.25,000/- towards pain and suffering. 15. The claimant was also admitted in the hospital nearly for 24 days. He could have spent some amount towards food, nourishment and attendant charges, hence, I propose to award Rs.5,000/- towards food, nourishment and attendant charges. 16. The claimant would have spent some amount towards conveyance charges, therefore, I propose to award Rs.8,000/- towards conveyance charges. Though the petitioner has not produced any medical bills but that itself is not a ground to reject the claim. Since he might not have preserved the medical bills and even he could have purchased the medicines after the discharge from the hospital, therefore, he is entitled for Rs.5,000/- towards minimum medical expenditure. The claimant could have taken bed rest for three months and therefore, he is entitled for loss of income during the laid-up period. If Rs.4,000/- is considered as income per month, it comes to Rs.12,000/- (4,000 x 3 months). Hence, the claimant is entitled for Rs.12,000/- towards loss of income during the laid-up period. 17. Though the claimant has suffered the fracture of humerus bone and as per the case sheet, the photographs and the X-ray film other than the disability certificate, it clearly reveals that the claimant is suffering from disability towards his left hand.
Hence, the claimant is entitled for Rs.12,000/- towards loss of income during the laid-up period. 17. Though the claimant has suffered the fracture of humerus bone and as per the case sheet, the photographs and the X-ray film other than the disability certificate, it clearly reveals that the claimant is suffering from disability towards his left hand. The claimant should suffer the loss of amenities throughout his lifetime due to the infirmity in the left hand. Therefore, by looking to the facts and circumstances of the case, the claimant is entitled for loss of amenities. Therefore, I propose to award Rs.25,000/- towards loss of amenities. The claimant is entitled for the compensation as under: Heads Compensation awarded by this Court (in Rupees) Towards pain and suffering 25,000/- Towards Food, Nourishment and Attendant Charges 5,000/- Conveyance Charges 8,000/- Towards medical expenditure 5,000/- Loss of income towards laid-up period for three months (3 months x Rs.4,000/- p.m.) 12,000/- Towards loss of amenities 25,000/- Total 80,000/- Accordingly, I pass the following order: The appeal is allowed-in-part The claimant is entitled for Rs.60,000/- with 6% interest per annum from the date of the petition till realization, in addition to the compensation of Rs.20,000/- awarded by the Tribunal.