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2020 DIGILAW 1543 (KAR)

Ramesh P. A. v. National Insurance Co. Ltd.

2020-08-06

ALOK ARADHE, H.T.NARENDRA PRASAD

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JUDGMENT : ALOK ARADHE, J. 1. This appeal under Section 173 (1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has been filed by the injured claimant seeking enhancement of the amount of compensation against judgment dated 27.02.2016 passed by the Motor Accident Claims Tribunal. 2. Facts leading to filing of this appeal briefly stated are that on 11.05.2014 at about 8.20 p.m. the appellant was proceeding in his Innova Car from Poojanahalli to Devanhalli. When he reached near Kannamangala Palya over bridge another Innova Car bearing registration No.KA02-MA-2016 which was being driven in a rash and negligent manner came from the opposite direction and dashed the road divider and the car of the appellant. As a result of the aforesaid accident, appellant sustained grievous injures and was shifted to Shirdi Sai Hospital and thereafter to Columbia Asia Hospital for treatment. The appellant remained inpatient for a period from 11.05.2014 to 18.05.2014. 3. The appellant filed a petition under Section 166(1) of the Act inter-alia on the ground that prior to accident, the appellant was working as machine operator and was earning a sum of Rs.45,000/- and was also carrying out agricultural operations and was earning Rs.5 Lakhs to Rs.6 Lakhs per year. However, it was pleaded that on account of accidental injuries, the appellant has lost his earning capacity and has suffered permanent disability. It was also pleaded that the accident took place due to rash and negligent driving of the offending vehicle. The appellant claimed compensation to the tune of Rs.30 lakhs along with interest. The respondent No.1 filed the written statement, in which inter alia it was admitted that the vehicle in question was insured with it. It was further pleaded that the driver of the offending vehicle did not have the valid and effective driving licence as on the date of the accident and the vehicle was not having the fitness certificate and the permit and respondent No.2 violated the terms and conditions of the policy. It was also pleaded that the accident took place on account of rash and negligent driving of the vehicle by the appellant and the compensation claimed by the appellant is excessive and is exorbitant. It was also pleaded that the accident took place on account of rash and negligent driving of the vehicle by the appellant and the compensation claimed by the appellant is excessive and is exorbitant. The respondent No.2 filed the written statement, in which inter-alia it was pleaded that the appellant in collusion with the police authorities has falsely implicated the offending vehicle and the vehicle at the time of the accident was being driven by an employee of respondent No.2 who is a necessary party to this petition and the petition is bad for non-joinder of necessary parties. It was also pleaded that the insurance company in any case is liable to indemnify the respondent No.2 as the vehicle at the time of accident was insured. 4. The claims tribunal on the basis of pleadings of parties framed issues and recorded evidence. The appellant examined himself as PW1 and Dr.D.J.Naveen Chand as PW2 and exhibited 32 documents viz., Ex.P1 to Ex.P32. The respondents examined one witness viz., the employer of the appellant H.S.Ramesh as RW1 and got exhibited pay slips of the appellant as Ex.P1 to Ex.P11. The claims tribunal inter alia held that the accident took place due to rash and negligent driving of the driver of the Innova car bearing registration No.KA01-MD-7133. It was further held that the appellant has suffered commuted displaced shaft of right femur (thigh bone) and blunt injury to the chest as well as other injuries on account of the accident and awarded a sum of Rs.1,70,000/- as compensation. 5. Learned counsel for the appellant submitted that the tribunal grossly erred in not awarding a sum of Rs.1,98,669/- to the appellant on account of the medical expenses incurred by him on the ground that same have been reimbursed by the employer. It ought to have been appreciated that a sum of Rs.325/- p.m. was being deducted from the salary of the appellant and out of the aforesaid fund, the amount of medical expenses was reimbursed to the appellant. In this connection our attention has also been invited to Ex.P15. It is further submitted that the appellant did not attend the duties for a period from 12.05.2014 to 11.11.2014 and for the aforesaid period the appellant ought to have been awarded the income. In this connection our attention has also been invited to Ex.P15. It is further submitted that the appellant did not attend the duties for a period from 12.05.2014 to 11.11.2014 and for the aforesaid period the appellant ought to have been awarded the income. It is further submitted that in any case, the appellant is entitled to loss of incentive for the period of treatment and the amount of Rs.45,000/- and Rs.10,000/- awarded on account of loss of amenities as well as towards food, conveyance, nourishment and attendant charges is on the lower side. It is further submitted that the appellant has suffered permanent disability to the extent of 20% in respect of whole body and prior to accident, he was employed as technician but after the accident he has been given a sitting job and therefore, the appellant ought to have been awarded compensation on account of loss of future income. 6. On the other hand learned counsel for the insurance company has submitted that the employer of the appellant has reimbursed the medical expenses and the appellant who has been examined as PW1 in paragraph 5 of his cross-examination has admitted that there is a medical reimbursement facility in the company. While inviting the attention of this court to the findings recorded in paragraphs 16, 20 and 21 of the judgment of the tribunal, it is contended that there has been no loss of income either on account of hospitalization or on account of future income and the fracture has been united. It is further submitted that the amount of compensation awarded by the tribunal is just and proper. 7. We have considered the submissions made on both the sides and have perused the record. The appellant was admittedly employed as a technician in Mico Bosch Company. In paragraph 5 of the cross examination he has admitted that there is a medical reimbursement facility in the company and a sum of Rs.1,90,000/- towards medical expenses has been reimbursed by the company. However, in paragraph 6 it is stated that every month an amount of Rs.325/- is deducted from his salary. From perusal of Ex.P15 i.e., the salary slip of the appellant, it is evident that a sum of Rs.325/- per month has been deducted as hospital contribution fund from the salary of the appellant. The employer of the appellant viz. However, in paragraph 6 it is stated that every month an amount of Rs.325/- is deducted from his salary. From perusal of Ex.P15 i.e., the salary slip of the appellant, it is evident that a sum of Rs.325/- per month has been deducted as hospital contribution fund from the salary of the appellant. The employer of the appellant viz. H.S. Ramesh (RW1) in the cross examination has admitted that workman are reimbursed from the contingency fund an amount of Rs.325/- per month is deducted from the salary of each employee. Thus, the version put forth by the appellant that he has been paid an amount of Rs.1,90,000/- towards medical expenses from the contingency fund maintained by the employer to which he has contributed a sum of Rs.325/- per month appears to be trustworthy. The aforesaid fact is also fortified from the salary slip of the appellant viz., Ex.P15. However, the tribunal has failed to appreciate the aforesaid material evidence on record and has held that since, a sum of Rs.1,91,000/- has been paid by the employer. Therefore, the appellant is not entitled to any amount towards medical expenses. The aforesaid finding has been recorded without taking into account the material evidence on record referred to supra. Therefore, the same is reversed and it is held that the appellant is entitled to a sum of Rs.1,91,000/- on account of medical expenses incurred by him. Admittedly, the appellant has been paid salary and allowance for the period for which he was on leave on account of injuries sustained by him in the accident i.e., from 12.05.2014 to 11.11.2014. However, it is axiomatic from the statement of the employer of the appellant made in the cross-examination that no incentive was paid to the appellant. The incentive at the relevant point of time i.e., for the month of April 2014 was Rs.10,362/-. Since, the appellant has already been paid salary and allowances and has not been paid the incentives. Therefore, we hold that he is entitled to incentive for a period from 12.05.2014 to 11.05.2014 which is quantified at Rs.72,534/-. 8. From evidence of RW1 i.e. the employer of the appellant it is evident that even after the accident the appellant is still working in Bosch company and his salary has been raised after the accident. Therefore, the appellant is not entitled to any amount on account of loss of future income. 8. From evidence of RW1 i.e. the employer of the appellant it is evident that even after the accident the appellant is still working in Bosch company and his salary has been raised after the accident. Therefore, the appellant is not entitled to any amount on account of loss of future income. However, we find that the amount of Rs.45,000/- granted by the tribunal under the head of pain and agony is on the lower side and the same is enhanced to Rs.70,000/-. Thus, in all the appellant is held entitled to an enhanced sum of Rs.2,88,534/- (Rs.1,91,000+Rs.72,534+Rs.25,000) as compensation. To the aforesaid extent, the award passed by the claims tribunal is modified. Needless to state that the aforesaid amount shall carry interest at the rate of 6% per annum from the date of filing of the petition till payment is made. To the aforesaid extent the award is modified. 9. Accordingly, the appeal is disposed of.