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2020 DIGILAW 2235 (KAR)

G. Nagamani v. Veerabadraiah

2020-11-11

S.SUJATHA, SACHIN SHANKAR MAGADUM

body2020
JUDGMENT Sachin Shankar Magadum, J. - The captioned appeal is filed by the claimant challenging the judgment and award passed in MVC.No.1164/2016 questioning the quantum. 2. The facts leading to the case are as under: The appellant/claimant filed a claim petition in MVC.No.1164/2016 by contending that on 13.05.2015, she was returning along with her family members from Hyderabad in a Car bearing Reg.No.KA-52-M-3458. The appellant/claimant has specifically averred in the claim petition that when the car reached near Bommeparthy Arch on NH-44, Bengaluru-Hyderabad Road, at that juncture, the driver of the said car drove the vehicle in a rash and negligent manner and lost control and the car was thrown into a brook (halla). In the said accident, it is averred that the appellant/claimant has suffered fracture of D6 vertebral with cord injury. The appellant/claimant took treatment for a period of 17 days in M.S.Ramaiah Hospital. The case of the appellant/claimant before the Tribunal was that she was working as FDA in Sericulture Department and was getting salary of Rs.43,064/-. Hence, filed claim petition claiming compensation of Rs.80,00,000/-. The appellant/claimant in support of her contention examined herself as PW.1 and has also produced medical evidence to corroborate the disability suffered by her on account of the accident. The appellant/claimant has further averred in the claim petition that on account of disability suffered, she was not in a position to continue the job and as such, she has tendered her resignation and accordingly, the resignation letter was also produced before the Tribunal. All these contentions were seriously disputed by the respondent No.2/Insurance Company. The Tribunal having assessed the oral and documentary evidence has awarded a compensation of Rs.5,13,000/-. The Tribunal having assessed the oral and documentary evidence was of the view that the appellant/claimant is not entitled for any compensation under the head of future loss of earnings, since the appellant/claimant has only tendered her resignation, but there is absolutely no clinching evidence indicating that the same was accepted. It appears in this background, the Tribunal has held that appellant/claimant is also not entitled for any compensation under the head loss of laid up period and loss of future earnings. Being aggrieved by the judgment and award of the Tribunal insofar as denying compensation under the head loss of future earnings and loss of laid up period, the appellant/claimant has come up with this appeal. 3. Being aggrieved by the judgment and award of the Tribunal insofar as denying compensation under the head loss of future earnings and loss of laid up period, the appellant/claimant has come up with this appeal. 3. Learned counsel appearing for the appellant/claimant would vehemently argue and contend before this Court that the medical evidence on record clearly establishes that appellant/claimant due to loss of sensation of both the lower limbs, she has undergone physiotherapy and the medical bills pertaining to physiotherapy amounting to Rs.2,38,900/- is not taken into consideration by the Tribunal. He would vehemently argue and contend that on account of loss of sensation of both the lower limbs, appellant/claimant has failed to report for duty and hence, she has lost her earning absolutely at the rate of Rs.45,050/-p.m. from the date of accident. Learned counsel appearing for the appellant/claimant would further submit that on account of grievous injuries sustained in the accident, she was compelled to opt for VRS and hence, he would submit that Tribunal erred in not granting any compensation under the head of future loss of earnings. 4. Pending appeal, the appellant/claimant has placed on record additional evidence to demonstrate that she has opted for VRS and same is accepted. Relying on these additional documents, learned counsel appearing for the appellant/claimant would urge this Court to determine compensation by taking judicial note of additional evidence placed on record. 5. Per contra, Sri A.N.Krishna Swamy, learned counsel appearing for the respondent No.2/Insurance Company would submit to this Court that this additional evidence needs to be corroborated by ocular evidence. The Insurance Company has to be afforded an opportunity to refute these additional documents either by producing rebuttal documentary evidence or by way of leading further evidence to refute the contentions raised in the additional evidence. In that view of the matter, he would submit to this Court that the matter needs to be remitted back to the Tribunal to consider whether appellant/claimant is entitled for compensation under the head of loss of future earnings in the light of additional evidence placed on record. 6. We have heard learned counsel appearing for the appellant/claimant and learned counsel for the respondent No.2/Insurance Company. We have examined the additional evidence placed on record. 7. 6. We have heard learned counsel appearing for the appellant/claimant and learned counsel for the respondent No.2/Insurance Company. We have examined the additional evidence placed on record. 7. Having perused the additional evidence placed on record, we are of the view that the same needs to be corroborated by ocular evidence by the respective parties. Further, the Insurance Company has to be given an opportunity to refute the contents of the additional evidence. Before examining the additional evidence, it would be essential to secure the service benefits received by the appellant/claimant on account of opting for VRS. In view of subsequent development, the Tribunal is also required to formulate the point as to whether on account of injuries suffered and consequent permanent disability incurred by the appellant/claimant, she was virtually compelled to opt for VRS. All these material aspects cannot be dealt with without affording an opportunity to both the parties to lead further evidence in terms of the additional evidence. In that view of the matter, we deem it fit to do substantial justice, the matter needs to be remitted back to the Tribunal reserving liberty to both the parties to lead further evidence in terms of additional evidence. 8. Hence, the following: ORDER i) The appeal is allowed. ii) The impugned judgment and award dated 09.01.2017 is set aside and the matter is remanded to the Tribunal along with I.A.No.1/2020 filed by the appellant/claimant for production of additional evidence. The Tribunal shall reconsider the matter in accordance with law and take decision in an expedite manner after providing an opportunity to both the parties to lead fresh evidence, if any. iii) All the contentions and rights of the parties are left open. iv) The amount in deposit, if any, shall be transmitted to the Tribunal. v) Since the parties are represented by their respective Counsels, they shall appear before the Tribunal on 01.12.2020 without waiting for any notice and shall take further orders. vi) The Registry shall transfer the original records along with I.A.No.1/2020 to the jurisdictional Tribunal forthwith.