Bhaskara Marakala vs Raghu Poojary
2022 Latest Caselaw 3398 Kant

                           1


     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                        PRESENT
       THE HON'BLE MR. JUSTICE P S DINESH KUMAR
                          AND
     THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
             MFA No. 3314 OF 2015 (MV-I)
                          A/W
             MFA No. 4841 OF 2015(MV-I)

IN MFA No.3314/2015:
BETWEEN:

BHASKARA MARAKALA
AGED ABOUT 40 YEARS
S/O BHOJU MARAKALA
R/O KARKADA PADUBAILU
KARKALA VILLAGE
UDUPI TALUK                          ...APPELLANT

(BY SMT. NAZEEFA M. MULLA, FOR
    SRI. PAVANA CHANDRA SHETTY .H, ADVOCATES)
AND:

1.     RAGHU POOJARY
       AGED ABOUT 39 YEARS
       S/O LATE NARAYANA POOJARY
       R/O MAGGODU SASTHANA POST
       GUNDMI VILLAGE, UDUPI TALUK

2.     THE UNITED INDIA INSURANCE CO. LTD.
       DIVISIONAL OFFICE, KRISHNA COMPLEX
       G.R. PATH ROAD, UDUPI DISTRICT
       REP: BY ITS DIVISIONAL MANAGER ..RESPONDENTS

(BY SRI. O. MAHESH, ADVOCATE FOR R2,
VIDE ORDER DTD:04.12.2018, NOTICE TO R1 IS D/W)
                            2


    THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 17.01.2015, PASSED IN MVC
NO.232/2013, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDITIONAL MACT, KUNDAPURA, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION AND ETC.
                        ******
IN MFA No.4841/2015:
BETWEEN:

THE UNITED INDIA INSURANCE CO. LTD.
DIVISIONAL OFFICE, KRISHNA COMPLEX
G.R. PATH ROAD, UDUPI DISTRICT
REP: BY ITS DIVISIONAL MANAGER
                                       ...APPELLANT
(BY SRI. O. MAHESH, ADVOCATE)

AND:

1.     BHASKARA MARAKALA
       AGED ABOUT 38 YEARS
       S/O BHOJU MARAKALA
       R/O KARKADA PADUBAILU
       KARKALA VILLAGE
       UDUPI TALUK-576101

2.     RAGHU POOJARY
       AGED ABOUT 37 YEARS
       S/O LATE NARAYANA POOJARY
       R/O MAGGODU SASTHANA POST
       GUNDMI VILLAGE
       UDUPI TALUK-576101
                                       ...RESPONDENTS

(BY SMT. NAZEEFA M. MULLA, FOR
    SRI. PAVANA CHANDRA SHETTY .H, ADVOCATES)


    THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED: 17.01.2015, PASSED IN MVC
NO.232/2013, ON THE FILE OF THE SENIOR CIVIL JUDGE AND
MEMBER, ADDITIONAL MACT, KUNDAPURA, AWARDING
COMPENSATION OF Rs.13,75,670/- WITH INTEREST @ 6%
                                 3


P.A. FROM THE DATE OF PETITION TILL THE DATE OF
DEPOSIT AND ETC.

     THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT     ON 24.01.2022, COMING   ON   FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, RAJENDRA
BADAMIKAR J., DELIVERED THE FOLLOWING:


                          JUDGMENT

These appeals are filed under Section 173(1) of Motor

Vehicles Act, 1988 ('M.V. Act' for short) challenging the

judgment and award dated 17.01.2015 in MVC No.232/2013

passed by the Senior Civil Judge and Additional MACT,

Kundapur ('Tribunal' for short).

2. MFA No.3314/2015 is filed by the claimant seeking

enhancement of the compensation amount awarded by the

Tribunal, while MFA No.4841/2015 is filed by M/s. United India

Insurance Company ('Insurer' for short) disputing the liability

fastened on it.

3. The brief factual matrix leading to the case is that,

on 14.02.2012 at about 11.15 p.m., the petitioner was

proceeding on the motor cycle of the 1st respondent bearing

Registration No.KA.20.R.715 as a pillion rider, which was

proceeding from Udupi to Saligrama on NH-66, and when they

reached near A.A. Nayak Compound, Gundmi village, Udupi

Taluk, the 1st respondent drove the motor cycle in a rash and

negligent manner and in order to avoid the collision with

autorikshaw, he suddenly applied break, as a result, the

petitioner and respondent No.1 fell down from the motor cycle

and sustained injuries; that immediately, the petitioner was

shifted to KMC Hospital, Manipal and he has taken treatment as

inpatient from 04.10.2012 to 31.10.2012 and thereafter, he

has taken treatment as an out-patient and spent Rs.30,000/-

towards medical expenses and Rs.5,000/- for food and

nourishment and Rs.5,000/- towards attendant charges; that

he also spent lot of money towards medical expenses and other

incidental expenses, while he was taking treatment as an out-

patient and that he was working as a contractor and earning

Rs.10,000/- p.m. and due to accidental injuries, he suffered

loss of income and future prospects.

4. Respondent No.1, who is the owner of the motor

cycle, did not choose to appear before the Court and placed ex-

parte.

5. Respondent No.2-M/s. United India Insurance

Company Limited ( 'Insurer' for short) has appeared and

contested the claim by taking all statutory defences. It is

contended that the petitioner/claimant has suppressed the

true facts for illegal gain and there is delay of three days in

registering the FIR. It is contended that, there appears to be

collusion of respondent No.1 along with police. After

concocting false case, a false claim has been made for injuries

sustained by the petitioner due to fall. It is further asserted

that there is no nexus between the injuries sustained by the

petitioner and the motor cycle bearing No. KA.20.R.715.

Hence, he would dispute the liability and as such sought for

dismissal of the claim petition.

6. The Tribunal after appreciating oral and

documentary evidence, has come to a conclusion that the

petitioner/claimant has suffered 100% disability in the Road

Traffic Accident and awarded total compensation of

Rs.13,75,670/- with interest at the rate of 6% per annum

from the date of petition till the date of deposit, by fastening

liability on Respondent No.2-Insurer.

7. Being aggrieved by the quantum of compensation

awarded by the Tribunal, the claimant has filed MFA

No.3314/2015 seeking enhancement, wherein it is contended

that the Tribunal has erred in awarding only Rs.75,000/- under

the head of 'Pain and Suffering', which is on the lower side. He

would also contend that, the Tribunal has also erred in granting

medical expenses of Rs.86,672/- as against the claim of

Rs,1,15,000/- spent by the petitioner/claimant. He would

further contend that, he was inpatient for 37 days and he had

visited the hospital as out-patient for 42 times. But, the

Tribunal has awarded Rs.2,000/- towards food and

nourishment and Rs.2,000/- towards conveyance, which is also

on lower side. He would contend that the claimant was

working as a mason and earning of Rs.20,000/- p.m., and the

Tribunal has taken the monthly income of Rs.6,000/-, which is

on lower side. He would also contend that, the claimant was

bed-ridden for 12 months and the Tribunal has granted

compensation towards loss of income during laid-up period

only for ten months, which is also on lower side. He would

contend that the claimant suffered 100% permanent disability,

as he is suffering from paraplegia and hence, he sought for

enhancement of compensation awarded by the Tribunal.

8. Per contra, the respondent-Insurance Company has

filed an appeal challenging the liability itself. The learned

counsel appearing for the Insurer would contend that the

Tribunal has failed to note that, there was no compliance of

mandatory provisions of Section 134(c) and 158(6) of the M.V.

Act and the Insurer was kept in darkness. He would also

contend that, there was delay of 3 days in lodging the

complaint and the claim petition is engineered with fraud,

based on subsequent story created in lodging the complaint.

He would also contend that the evidence of claimant/CW.1 and

PW.2 are contrary to each other. He would also contend that

RW.1, who was examined on behalf of the insurer is a

'compromised' witness and his hostility against the insurer

coupled with other documents establish that, it is a fabricated

case. He would also invite the attention of the Court to Ex.P3

(Discharge Summary), wherein there is a reference that of

alleged history of due to fall from height and initially the

claimant was admitted to Bramhavar Mahesh hospital. But,

the material records of the said hospital are with-held, which

clearly establish that, there is active connivance between the

claimant and Respondent No.1 and as well as PW.2-

Complainant. He would also invite the attention of this Court to

the medical evidence contending that the injuries sustained by

the claimant, could not have been possible with a fall from the

motor bike, other than from great height. He would also

contend that the medical record discloses that the claimant

was aged about 68 years. But, the Tribunal has taken it as 40

years. Hence, he would contend that the offending vehicle was

not at all involved and it was planted subsequently as an

after-thought story, only in order to get compensation and as

such, he would seek for allowing the Insurer's appeal by

dismissing the appeal filed by the claimant and sought for

dismissal of the claim petition.

9. We have heard the learned Advocates appearing on

both sides at length and perused the original records.

10. The undisputed fact is that, the claimant has

suffered dislocation of C6 and C7 due to fracture with

complete neurological deficit and an abrasion measuring 6x3

cm. over dorsum of the left foot. It is also evident from the

records that the claimant was admitted in the hospital for

nearly 37 days. In the claim petition, the claimant claims that,

his monthly income is Rs.10,000/- p.m., being a contractor.

But, during the trial, the claimant tried to put-forward a claim

that, he was mason by profession and was earning

Rs.20,000/- p.m,. However, no material documents have been

produced to show the income of the claimant. In the absence

of the material evidence in that regard, the Tribunal has taken

the income of the claimant at Rs.6,000/- p.m.

11. Further, in the 'Wound Certificate' marked as

Ex.C4, the claimant is shown to be aged 68 years. However,

the in discharge summary and other medical records produced

at Ex.P1 and Ex.P2, the age of the claimant is shown to be 39

years. Even the photograph of the claimant is produced, which

discloses that the age of the claimant as on the date of the

accident is not 68 years. Considering entire medical evidence,

the Tribunal has taken the age of the claimant as 40 years.

12. In the objection statement, the insurer has set-up a

simple defence that, there is delay in lodging the complaint and

the claimant has suffered injuries in some other course and

there is no nexus between the offending vehicle and the

injuries sustained by the claimant. However, during the course

of the trial, the Insurance Company has taken-up defence that

the claimant has suffered injuries by fall from the height, based

on medical records produced by the claimants. There is no

dispute of the fact that, there is delay in lodging the complaint.

The accident has occurred on 04.10.2012 at 11.15 p.m.

Admittedly, immediately after the accident, the claimant was

admitted to Mahesh Hospital at Bhrahmavar and then he was

shifted to Manipal Hospital. But, no document has been

produced by the claimant to show that the Hospital Authorities

have reported the history of the accident to the nearest police

station. However, the Discharge Summary issued by the KMC

Hosptial, Manipal is available at Page No.231 and there is a

reference of history of fall from height. However, the

Discharge Summary at Page No.230, there is a reference that

the patient has a history of fall from the motor bike on

04.10.2012. Apart from that, the Endorsement Assessment

form at Page No.222, which is part of Ex.P2, discloses that at

3.25 am. on 05.10.2012 itself, the claimant was admitted in

the hospital and the history sheet refers head injury disclosing

fall from the motor bike at 9.45 p.m. on 04.10.2012. However,

except reference in some portion of discharge summary

regarding history of fall from height, the other records

including the admission records disclose that, history of fall

from motor bike was recorded. Even in Wound Certificate-

Ex.C4, there is a reference of injury in RTA. Very

interestingly, in objection statement, the respondent/insurer

has not put forward any specific defence, but a vague defence

is set-up that the petitioner/claimant sustained injury in some

other course and by colluding with Police, filed a false claim

petition. But, no specific defence was taken in the objection

statement. However, in evidence, on the basis of the reference

in a portion of discharge summary, this specific defence is set-

up by the respondent/insurer. However, in such cases, a

material suggestion ought to have been made to the claimant,

who was examined as CW.1 on commission. But, very

interestingly no such suggestions were made to claimant-CW.1

and on the contrary, suggestions have been made regarding he

sustaining injury by fall from bike. This part of cross-

examination on behalf of the respondent/insurer, is available in

end of 2nd Para at Page No.46, which reads as under:

"£Á£ÀÄ, gÀWÀÄ ¥ÀÆeÁj ªÀÄvÀÄÛ ªÉÆÃmÁgÀÄ ¨ÉÊPï mÁgÀÄ gÀ¸ÉÛAiÀÄ ªÉÄÃ É ©zÉݪÀÅ JAzÀgÉ ¸Àj. ©zÀÝ £ÀAvÀgÀ ªÉÆÃmÁgÀÄ ¨ÉÊPï vÀÄA¨Á zÀÆgÀzÀ vÀ£ÀPÀ J¼ÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÉ JAzÀgÉ ¸Àj. DzÀgÉ JµÀÄÖ zÀÆgÀ JAzÀÄ ºÉüÀ ÁUÀĪÀÅ¢ Áè. ªÉÆÃmÁgÀÄ ¨ÉÊQUÉ vÀÄA¨Á dRA DVvÀÄÛ JAzÀgÉ ¸Àj. gÀWÀÄ ¥ÀÆeÁjAiÀĪÀjUÉ ¸Àé®à ªÀiÁvÀæ ¥ÉmÁÖVvÀÄÛ."

This suggestion put by the learned counsel for respondent No.2

to the claimant-CW.1 would completely demolish the defence

set-up by the Insurance Company that, 'the claimant suffered

injuries by fall from the height'. The Insurance Company itself

by making certain suggestions has admitted that, 'injuries

being caused in RTA' and now it cannot lie in the mouth of the

Insurance Company that, 'the accident has not occurred and

the injuries were caused by fall from height'. The Insurance

Company is taking inconsistent defences, which is not

permissible. Further, the police have also submitted charge

sheet against the rider of the motor cycle. Further, the rider of

motor bike was examined on behalf of Insurance Company as

RW.1, to dispute the accident. But, he has turned hostile to

the case of Insurance Company and he has specifically stated

that the claimant sustained injury due to fall from the motor

bike. Under these circumstances, considering these aspects,

the contention of the Insurance Company that, the offending

vehicle was not involved in accident in question, does not hold

any water at all. The Insurance Company has failed to

substantiate the said contention. But, on the contrary, during

cross-examination of the claimant himself it admitted that, the

claimant has sustained injuries due to accident, by making fatal

suggestions. Further any delay in lodging complaint alone

cannot be a ground to discard case of claimant as admittedly

he was impatient in the hospital and when PW.1 was

examined, Insurance Company did not cross-examine him on

this point. As such, the appeal filed by the Insurance Company

in MFA No.4841/2015 does not merit consideration.

13. In the appeal No.3314/2015 filed by the claimant, he

is seeking for enhancement of the compensation. The Tribunal

has awarded compensation of Rs.75,000/- under the head of

'Pain and Suffering'. Admittedly, the claimant has suffered

100% disability and he is suffering from paraplegia and as

such, the compensation awarded under the head of 'Pain and

Suffering' appears to be on lower side and we propose to

enhance it to Rs.1,00,000/-.

14. Further, the Tribunal has awarded an amount of

Rs.1,10,670/- towards medical expenses on the basis of

available records. Hence, the compensation awarded under this

head does not call for any interference by this Court.

15. Under the head of 'Loss of Earning' the tribunal has

awarded Rs.10,80,000/-. The Tribunal has taken the monthly

income at Rs.6,000/- . The accident has occurred in the year

2012. This Court is consistently taking Rs.7,000/- as monthly

income in respect of the accidents occurred in the year 2012.

Hence, in the absence of any other material evidence in respect

of monthly income of the claimant, the same has to be taken at

Rs.7,000/-.

16. The cross-examination of PW.1 and CW.1 clearly

establish that, the history and nature of injuries were not

challenged. The medical evidence also discloses that there is

no active movement in both lower limbs and he has only

involuntary muscle spasm. Further, evidence of PW.1 is

supported by disability certificate Ex.C12 and medical file-

Ex.P1 to P3 along with x-ray films clearly establish that

petitioner has suffered paraplegia and his disability is 100%.

The age of the petitioner/claimant is between 38 to 40 years as

per the medical records. However, in one document, his age is

shown as 68 years. But, all other documents clearly establish

that the age of the petitioner/claimant is between 38 to 40

years, which is also not seriously challenged and during the

evidence of CW.1 he himself, on oath disclosed his age as 38

years. Hence, the multiplier '15' is applicable in the instant

case. Hence, the Loss of Earning Capacity works out at

Rs.12,60,000/- (Rs.7,000 x 12x15).

17. We have held that, the claimant has suffered 100%

disability in the accident in question from the date of accident

itself and considering the same, we have granted

compensation under the head 'Loss of future earning capacity'

to an extent of 100%, from the date of accident itself. As such,

question of granting of compensation once again under the

head 'Loss of income during laid-up period' does not arise at

all. Hence, the claimant is not entitled for any compensation

under the head of 'Loss of income during laid-up period'.

18. The Tribunal has awarded Rs.50,000/- under head

of loss of amenities. Considering 100% disability, the same

appears to be reasonable and does not call for any

interference.

19. In view of the above observation, the

appellant/claimant is entitled for revised compensation as

under:

Sl.              Particulars                 Amount (Rs.)
No
1         Pain and suffering                     1,00,000/-

2         Medical expenses
          (including conveyance                  1,10,000/-
          and attendant
          charges)
4         Loss of future earning                 12,60,000/-
          capacity
5         Loss of amenities                          50,000/-

          Total                                  15,20,000/-

20. As such, the appellant/claimant is entitled for total

compensation of Rs.15,20,000/- as against Rs.13,75,670/-

awarded by the Tribunal with interest at 6% pa., from the

date of petition till the date of realization.

21. In the circumstances, MFA No.3314/2015 filed by

the claimant/appellant requires to be allowed in part and MFA

No.4841/2015 filed by the Insurance Company needs to be

dismissed. Accordingly, we proceed to pass the following:-

ORDER

i) MFA No.3314/2015 filed by the appellant/claimant is allowed-in-part.

ii) The impugned judgment and award passed by the Tribunal is modified.

iii) The impugned award is enhanced from Rs.13,75,670/- to Rs.15,20,000/- with interest at 6% pa, from the date of petition, till the date of realization.

iv) The appellant/claimant is entitled for a sum of Rs.1,54,330/- (Rs.15,20,000/- less Rs.13,65,670/-) in addition to the compensation amount awarded by the Tribunal with interest at 6% p.a., from the date of petition till the date of realization.

v) Out of total compensation, 50% shall be invested in the name of the appellant/claimant for a period of three years in any Nationalised Bank with liberty to

withdraw periodical interest thereon accrued from time to time and the balance 50% of the amount shall be released in favour of the appellant/claimant.

vi) The enhanced compensation amount with interest shall be deposited by the concerned Insurance Company within a period of six weeks from the date of receipt of a copy of this judgment.

vii) MFA No.4841/2015 filed by the Respondent-Insurance Company is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

KGR*