Karnataka High Court
Manjunath vs Virupaksha G on 20 January, 2021
Author: N S Gowda
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.6282 OF 2014 (MV - I)
BETWEEN:
Manjunath
S/o Bheemaiah
Aged about 25 years
ITI Student in HMS Shettihalli,
R/at: Anupanahalli,
Urdigere Hobli,
Tumkur Taluk. ... Appellant
(By Sri K.N. Sunil for Sri. K.R. Ramesh, Advocates)
AND:
1. Virupaksha G
S/o Ganganna
Major
R/at: Nagannapalya,
Sira Gate, Tumkur - 572 103.
2. Reliance General Insurance
Regd. Office No.19,
Reliance Centre
Walchand Hitach Marg,
Ballard Estate,
Mumbai - 400 001
For service purpose
Reliance General Insurance
Tumkur - 572 103
Rep. by its Branch Manager. ... Respondents
(R1 served and unrepresented;
Sri.D.Vijaya Kumar, Advocate for R2)
2
This M.F.A. is filed under Section 173(1) of M.V. Act
against the Judgment and Award dated 08.04.2014
passed in MVC No.84/2010 on the file of the Principal
Senior Civil Judge and MACT - X at Tumkur dismissing
the claim petition for compensation.
This appeal coming on for admission this day
through video conference, the Court delivered the
following:
JUDGMENT
The appellant/claimant being dissatisfied with
the compensation awarded by the Tribunal has
preferred this appeal.
2. The claimant contended that on
25.10.2009 when he and his friend proceeding on the
Main Road near Namadachilume to go to his village
Anupanahalli was hit by a Pulsar motor cycle bearing
registration No.KA-06-EC-1335 from behind and as
a result of this impact, the claimant sustained
grievous injuries. In the claim petition it was
categorically stated that he had suffered a fracture of
L-2 Vertebra and had "traumatic paraplegia". He
contended that he was studying in the second year of
ITI in HMS Institution, Shettihalli and apart from
studying he was also doing some work and was
earning about Rs.3,000/- per month, which he was
contributing to his family. He submitted that due to
the injuries suffered by him, he was entitled for
compensation for the disability suffered by him and
also for the loss of his earning capacity.
3. The owner of the offending motor cycle
though served with notice did not enter appearance
and was placed ex-parte.
4. The insurance company entered
appearance and, as usual, filed objections denying
the entire averments made in the claim petition.
5. The Insurance company contended that
the claim was based on fabricated documents and a
story was being concocted about the accident. It
contended that since the complaint was lodged after
an inordinate delay, the claim petition was liable to
be rejected.
6. The Trial Court on assessing the evidence
produced before it, came to the conclusion that the
claim petition was liable to be dismissed, since the
cause of injury was not recorded by the Doctor at
Adithya Orthopedic and Trauma Centre though the
treatment was given on 25.10.2009 itself and also
because the police had not been informed by the
hospital, which indicated that there was no nexus
between the injuries and the alleged motor vehicle
accident in question and it proceeded to dismiss the
claim petition.
7. Learned counsel for the appellant
contended that the findings of the tribunal were
perverse. He submitted that the medical evidence
produced categorically proved that an accident had
occurred on 25.10.2009 at about 10:00 a.m and as a
result of the accident the claimant had suffered
fracture of L2 Vertebra leading to traumatic
paraplegia. He submitted that the Doctor who had
treated the claimant had also been examined
regarding the injuries suffered. He submits that
having regard to the fact that the claimant had
suffered paraplegia as a result of the accident, the
expectation of lodging a complaint immediately was
unrealistic. He submitted that the observation of the
Tribunal that the delay in filing the complainant
created a suspicion about the involvement of the
vehicle cannot be said to be proper, especially in the
background of the fact that owner of the
motorcycle/offending vehicle did not even contest the
petition. He submits that the objections of the
insurance company which were general in nature
could not have been taken into consideration in the
absence of any positive evidence adduced by the
Insurance company regarding the so called collusion
between the owner and the complainant.
8. Sri. D. Vijaya Kumar, learned counsel for
the insurance company on the other hand
vehemently contended that the Tribunal was perfectly
justified in dismissing the claim petition. He
submitted the fact that the complaint was lodged 7
days after the accident and having regard to the fact
that the claimant was conscious even after the
accident coupled with the fact that the claim was not
contested by the owner would lead to the inference
that it was a false claim being set up by the claimant.
He submitted that the entire evidence, if read
correctly, would lead to the inference that the
motorcycle in question was not involved in the
accident and as a consequence the insurance
company would not be liable. He also submitted that
if for any reason this Court were to come to the
conclusion that an accident had occurred and the
motorcycle had caused the accident, it would be
appropriate to remand the matter to the Tribunal for
determination of the compensation that may be
payable. He submitted that the matter may be
remanded for fresh consideration regarding the
involvement of the motorcycle in the accident, if this
Court was of the view that an accident may have
occurred.
9. I have heard the learned counsel for the
claimant/appellant as well as the learned counsel for
the respondent and also perused the entire Trial
Court records.
10. The simple case put forth before the
claimant was while he was walking on the road on
25.10.2009 at about 9.00a.m he was hit by
motorcycle and as a result of this impact he had
sustained fracture of L2 vertebra with traumatic
paraplegia. The wound certificate which was
produced before the Tribunal indicated that he was
treated at the Adithya Orthopedic and Trauma Centre
on 25.10.2009 at 1.40 pm. The wound certificate
indicated a road traffic accident as the history of the
wound. The Doctor who treated him at Adithya
Orthopedic and Trauma Centre Dr. T.V. Tyagaraju
was examined as PW-2. He has stated in his
deposition that he examined the claimant on
25.10.2009 he had found that claimant had suffered
traumatic paraplegia with wedge compression L2
vertebra. He has stated that claimant was treated
with surgical moss miyami stabilization and was
discharged on 07.11.2009 with advice to come for
follow-up as out patient. He has also stated that in a
recent examination on 27.06.2013 he had noticed a
bilateral foot drop with quadriceps wasting present
and that he was unable to do heavy work, unable to
walk long distance. He opined that the claimant was
having 45% disability of both the legs which
translated to15%disability to the whole body. The
Doctor also produced the entire medical records,
which also contained a recent examination report and
a recent X-ray. The said Doctor was also cross
examined in detail by the insurance company. A
reading of cross examination does not indicate that
the Doctor has no where contradicted himself
regarding the injuries suffered by the claimant.
11. In my view having regard to the fact that
accident occurred on 25.10.2009 at 10.00a.m and
there is clear medical evidence on record that indicate
that the claimant was treated on the same day at
1.00 p.m and the Doctor who treated him has been
examined by itself clearly proves that an accident
occurred as stated by the claimant. It is to be noticed
here that the claimant was hospitalized from
25.10.2009 to 07.11.2009 and he had suffered
traumatic paraplegia which means that he did not
have control of both of his legs. In such a situation, it
is obvious, he would be in a state of shock and to
expect a person who lost control of both of his legs to
report to police and to take further steps in the
matter is too far fetched and unrealistic. The
claimant, a 21 year old boy, who had lost both of his
legs would be severely traumatized and if such a
traumatized 21 year old did not lodge a complaint
immediately, it would not mean that an accident had
not occurred. In my view, the finding of the Tribunal
that the delay in lodging the complaint coupled with
the fact that in the medical records the hospital did
not record the cause of the accident cannot be the
determinative factor to ascertain whether an accident
did or did not occur. In my view, having to the fact
that the claimant had suffered traumatic paraplegia
as a result of fracture L2 vertebra i.e., traumatic
paraplegia, the delay in filing of the complaint would
be of no consequence at all.
12. The contention of insurance company that
the vehicle that it had insured was not involved in the
accident cannot also be accepted for the simple
reason that the owner of motorcycle though served
with the notice did not enter appearance and did not
contest the matter. The best person to discredit the
claimant would be owner or rider of the motorcycle
and if the owner did not even come forward to contest
the matter, it will have to be resumed that he was not
denying the accident.
If the Insurance Company was of the view that
there was collusion between the owner of the vehicle
and the claimant, it ought to have adduced positive
evidence to establish his contention. The Insurance
company by merely throwing an allegation of
collusion cannot except the Tribunal to assume that
collusion had been proved. The law cannot presume
that there is collusion merely because the Insurance
Company has made an allegation of collusion.
13. In my view having regard to the nature of
injuries sustained and the medical evidence produced
by the claimant, I am of the firm view that the
accident did occur and the claimant suffered grievous
injuries due to the accident. I therefore, set aside the
order of the Tribunal in this regard.
14. The tribunal after assessing the evidence,
has awarded the following compensation:-
Sl. Amount
Particulars
No. in (Rs.)
Towards pain and agony for
A 30,000/-
the fracture of L-2 vertebra
Towards medical expenses
B which includes attendant 60,000/-
charges, food and
nourishment
Loss of income during the
C course of treatment i.e., for 4 12,000/-
months i.e., @ Rs.3,000/- x 4
months.
D Towards conveyance 5,000/-
Towards loss of future
E earnings i.e., Rs.3,000/- x 97,200/-
15% x 12 x 18
Total Rs.2,04,200/-
15. The learned counsel for the appellant
contended that awarding a sum of just Rs.30,000/-
for loss of pain and agony for the fracture of to L2
vertebra which has resulted traumatic paraplegia was
a very negligible sum. The Tribunal, according to
him, ought to have assessed permanent physical
disability as at least 50%, since the claimant had lost
control of both of his legs and the claimant being 21
year old had been maimed for life. He submitted that
the sum awarded by the Tribunal by assessing only
15% disability had committed a serious error. He also
submitted that the income determined at Rs.3,000/-
was also on the lower side and definitely much lower
than the one determined by the Karnataka State
Legal Services Authority.
16. It is not in dispute that the claimant was
aged 21 years and the medical evidence on record
indicates that the claimant had suffered a foot drop
and wasting of quadriceps. This evidence indicates
that the claimant had lost control of both his legs
which most certainly handicapped him and for all
purpose he would be unable to take care of himself. I
am therefore of the view that having regard that he
has suffered foot drop of wasting of quadriceps, the
claimant has suffered at least 50% of loss of his
earning capacity as a result of the paraplegia and foot
drop coupled with the wasting of his quadriceps.
17. It is no doubt true that the Doctor has
opined that the claimant had suffered a disability of
15% to the whole body. It is to be noticed the opinion
of disability as regards the whole body by a Doctor
would be a clinical assessment of the disability.
However, for the purposes of determining
compensation, one has to take into consideration the
loss of earning capacity of a 21 years old who cannot
make use of both of his legs to lead a normal life. In
my view, as a result of the aforementioned injuries
and the debilitating effect of the same on the 21
year old, interests of justice would be met if the
claimant is presumed to have lost 50% of his earning
capacity.
18. Since there is no credible evidence
regarding the monthly income of the claimant, it
would be prudent to adopt the income determined by
the Karnataka State Legal Services Authority in
respect of the cases settled in the Lok Adalat, which
would be sum of Rs.5,000/- as accident is of the year
2009. As I have already held the claimant has
suffered 50% loss of earning capacity, the claimant
would be entitled to Rs.2,500 x 12 x 18 =
Rs.5,40,000/- on account of loss of future earnings.
19. The Tribunal has determined that the
claimant has spent a sum of Rs.60,000/- towards
medical charges and the same is inclusive of
attendant charges, food and nourishment. In my view
this sum would have to be increased to Rs.1,00,000/-
since the attendant charges and food and
nourishment for a person who has suffered
paraplegia would be substantial.
20. As I have already that the notional income
of the claimant was Rs.5,000/-, the loss of income for
the period of 4 months will have to be considered as
Rs.20,000/- instead of Rs.12,000/- awarded by the
tribunal. The sum awarded towards conveyance
would also have to be increased to Rs.20,000/-.
21. As stated above the Medical evidence on
records indicates that the claimant does not have the
full use of both his legs. I am therefore of the view
that the sum of Rs.1,00,000/- be awarded towards
the loss of amenities.
22. Thus the claimant is entitled to the
following :-
Sl.
Amount
No Particulars
in (Rs.)
.
1. Pain and Agony 1,00,000/-
Medical expenses, attendant
2. charges, food and 1,00,000/-
nourishment
3. Loss of income during the 20,000/-
laid down period
4. Conveyance 5,000/-
5. Towards loss of future 5,40,000/-
earnings
6. Loss of amenities 1,00,000/-
Total 8,65,000/-
The appeal is thus allowed in part. The said
compensation shall carry interest @ 6% per annum
from the date of this petition till the date of its
realization. The Insurance company is directed to
deposit the said compensation amount within the period
of two months from the date of receipt of copy of this
order.
23. Out of the enhanced compensation awarded
the claimant is entitled to withdraw 30% of the
compensation immediately and the remaining 70% shall
be invested in the fixed deposit for a period of 5 years.
The claimant will be entitled to withdraw the interest
accrued on the said deposit.
Sd/-
JUDGE
AS
