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2020 DIGILAW 1819 (KAR)

Divisional Manager, Reliance Gen Ins Co. Ltd. , Desai Circle, Deshapande Nagar, Hubli v. Chandrakant

2020-09-21

SURAJ GOVINDARAJ

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JUDGMENT Suraj Govindaraj, J. - The Insurance Company is before this Court being aggrieved by the judgment and award dated 27.06.2012 passed by the Court of Fast Track and MACT, Hukkeri ('Tribunal', for short) in MVC No.530/2011, allowing the claim petition filed by the 1st respondent-claimant thereby awarding an amount of Rs.3,28,800/- as compensation with interest @ 6% p.a. from the date of petition till realization. 2. Learned counsel for the 1st respondent/claimant submits that they have not filed any appeal seeking for enhancement of compensation. 3. Heard. Admit. 4. With the consent of both the sides, the above appeal is taken up for final disposal at the stage of admission itself. 5. The fact of occurrence of accident and coverage of the Insurance Policy is not in dispute. In view of the same, it is not required to advert to the facts leading up to the accident. The appellant-Insurance Company is before this Court only challenging the quantum of compensation awarded in favour of the claimants. 6. Sri. Nagaraj C. Koollori, learned counsel for the appellant/Insurance company would submit that the awardal of the amounts by the Tribunal on various heads of accounts is improper. 7. The Tribunal after consideration of the matter has awarded a compensation of Rs.3,28,800/- under the following heads: Sl.No. Heads of accounts Amount (Rs.) 1 Pain and sufferings 30,000.00 2 Medical expenditure 1,70,000.00 3 Attendant charges & Special diet charges 8,800.00 4 Permanent disability and loss of future amenities 30,000.00 5 Loss of Income during treatment period 90,000.00 Total 3,28,800.00 8. Learned counsel for the appellant/Insurance Company submits that the Tribunal has awarded a sum of Rs.1,70,000/- on account of the medical expenses which could not have been so awarded when the claimant had not produced medical bills. In fact the bills were produced by the treating doctor, which were in the duplicate. The claimant being a policeman in employment of the government, the government would have borne the said cost and would have reimbursed the expenses and it is for this reason that the claimant has not produced the original medical bills. This fact ought to have been taken into account by the Tribunal and in the absence of production of the original bills by the claimant, the said amount ought not to have been awarded. 9. This fact ought to have been taken into account by the Tribunal and in the absence of production of the original bills by the claimant, the said amount ought not to have been awarded. 9. He further submits that the Tribunal has awarded a sum of Rs.90,000/- on account of loss of income during treatment period. The claimant not having produced any document to establish that he was on leave without pay, this amount could not have been awarded merely on the ground that the claimant was laid up. Since the claimant would have received the salary either being considered as medical leave or earned leave, this awardal has to be set aside. 10. Per contra, Smt. Sunanda P. Patil, learned counsel for the respondent No.1/claimant would submit that the fact of production of bills either by the hospital or by the treating doctor or by the claimant would not make much of the difference. As long as the said bills have been produced, the Tribunal is required to award the amounts, which the Tribunal has rightly done. 11. She further submits that, it is a fact that the claimant was hospitalized for a period of 45 days, had suffered fracture of the lower 1/3rd of tibia and 1/3rd of fibula, as also fracture of medial malicious and having suffered three fractures, he was laid up for further period of at least five months, which has been rightly considered by the Tribunal. No Government organization would give earned leave for five months and as such, she submits that the finding of the Tribunal ought not to be interfered with. 12. Heard Sri. Nagaraj C. Kolloori, learned counsel for the appellant/Insurance Company and Smt.Sunanda P. Patil, learned counsel for respondent No.1/claimant. Perused the papers. 13. Medical Expenditure It is a fact that the claimant had not produced the bills issued by the hospital towards the medical expenditure. In the absence of such production, the Tribunal could not have relied upon the duplicate bills produced through the treating doctor. Since those would not indicate whether the claimant had received reimbursement or not, it was for the claimant to lead evidence to show that there is no reimbursement of expenses received by him in order to claim the said amounts. Since those would not indicate whether the claimant had received reimbursement or not, it was for the claimant to lead evidence to show that there is no reimbursement of expenses received by him in order to claim the said amounts. No such evidence having been led, the awardal of Rs.1,70,000/- by the Tribunal in this head of account is improper and is set aside. 14. Loss of income during treatment period Even as regards the loss of income during the treatment period, the claimant has not produced any evidence to establish that he did not receive salary during that period. In the absence of such evidence being on record, it would have to be presumed that the claimant received the salary and as such, the awardal of this amount also is improper. 15. Though the claimant has not filed any appeal seeking for enhancement of compensation, this Court would have to consider the justness and equitableness of the compensation that is awarded to an injured/claimant. Taking into account the decision of the Division Bench of this Court in the case of Oriental Insurance Company Ltd., Vs. Akkayamma, (2009) ILR(KAR) 24 , this Court would have the power to make an order to render complete justice between the parties, which would include correction of the awardal of compensation and/or enhancing the compensation awarded, if this Court, even in appeal by the Insurance Company finds that the amount awarded does not appear to be complete compensation or if the same is not just and equitable. 16. Pain and sufferings The Tribunal has awarded a sum of Rs.30,000/- towards pain and suffering. Considering that the claimant has been hospitalized for a period of 44 days and laid up for a period of 5 months, which is not in dispute, the said amount of Rs.30,000/- is on very low end. Hence the same is enhanced to Rs.1,00,000/- . 17. Attendant charges & Special Diet charges The Tribunal has awarded a sum of Rs.8,800/- towards attendant charges and Special diet charges. Again considering that the claimant had been hospitalized for a period of 45 days and laid up for five months, the same is enhanced to Rs.50,000/-. 18. Permanent Disability & Loss of amenities The Tribunal has awarded a sum of Rs.30,000/- towards Permanent disability and loss of future amenities. For the same reason as aforesaid, the same is enhanced to Rs.50,000/-. 19. 18. Permanent Disability & Loss of amenities The Tribunal has awarded a sum of Rs.30,000/- towards Permanent disability and loss of future amenities. For the same reason as aforesaid, the same is enhanced to Rs.50,000/-. 19. Thus, in view of the above, the comparative table of compensation awarded by the Tribunal and by this Court is under: Sl. No Heads of account Compensation awarded by the Tribunal (Rs.) Compensation awarded by this Court (Rs.) Enhanced/ Reduced compensation (Rs.) 1 Pain and sufferings 30,000.00 1,00,000.00 70,000.00 2 Medical expenditure 1,70,000.00 00 -1,70,000.00 3 Attendant charges & Special diet charges 8,800.00 50,000.00 41,200.00 4 Permanent disability & loss of future amenities 30,000.00 50,000.00 20,000.00 5 Loss of Income during treatment period 90,000.00 00 -90,000.00 Total 3,28,800.00 2,00,000.00 -1,28,800.00 20. Accordingly, I pass the following: ORDER i. The appeal is partly allowed. ii. The judgment and award dated 27.06.2012 passed by the Court of Fast Track and MACT, Hukkeri, in MVC No.530/2011 is hereby modified. The appellant is entitled to compensation of Rs.2,00,000/- with interest @ 6% p.a. from the date of claim petition till the date of realization. The finding of the Tribunal insofar as apportionment and investment is concerned remains unaltered. The amount in deposit is directed to be transmitted to the Tribunal for doing the needful.