Karnataka High Court
Sri Nanjunda T B vs Sri T P Bheemaiah on 22 July, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REVIEW PETITION NO.229/2021
IN
M.F.A.NO.1583/2013 (MV)
BETWEEN:
SRI NANJUNDA T.B.,
PRESENTLY AGED ABOUT 31 YEARS
S/O SRI T.P.BHEEMAIAH
MAKKANDUR VILLAGE AND POST
MADIKERI TALUK
KODAGU DISTRICT-576 102. ... PETITIONER
(BY SRI K.S.BHEEMAIAH, ADVOCATE)
AND:
1. SRI T.P.BHEEMAIAH
AGED ABOUT 61 YEARS
S/O LATE PONNAPPA
MAKKANDUR VILLAGE AND POST
MADIKERI TALUK
KODAGU DISTRICT-576102
2. UNITED INDIA INSURANCE CO. LTD.,
MADIKERI BRANCH OFFICE
THROUGH ITS REGIONAL OFFICE
NO.18, 5TH AND 6TH FLOOR
KRUSHIBHAVAN, BENGALURU-560 001
REP. BY ITS MANAGER. ... RESPONDENTS
(BY SRI JANARDHAN REDDY, ADVOCATE FOR R2 VIDE ORDER
DATED 27.06.2022)
2
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC PRAYING TO A) TO REVIEW THE ORDER DATED
14/06/2021 PASSED BY THIS HON'BLE COURT IN MFA
NO.1583/2013(MV) WHICH IS AT ANNEXURE-B; B) TO PASS
ANY OTHER ORDER/ORDERS AS THIS HON'BLE COURT DEEMS
FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS REVIEW PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.07.2022 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This review petition is filed under Order 47 Rule 1 of CPC
praying this Court to review the order dated 14.06.2021 passed
by this Court in M.F.A.No.1583/2013 (MV) and pass any other
order/s as this Court deems fit in the facts and circumstances of
the case.
2. The factual matrix of the case of the prosecution is
that respondent No.2 has filed an appeal in M.F.A.No.1583/2013
(MV) challenging the judgment and award dated 31.07.2012
passed in MVC No.5/2011 on the very ground that while
awarding the compensation, the trial Judge considered the
medical expenses of Rs.2,04,366/- and ought not to have done
the same. As per Schedule II of the IMV Act, the maximum limit
of medical expenses is only Rs.15,000/-. This Court vide order
dated 14.06.2021 allowed the appeal in part filed by the
Insurance Company in MFA No.1583/2013 and modified the
judgment and reduce the compensation to Rs.5,06,000/- as
against Rs.6,95,366/-. Being aggrieved by the judgment and
order, the present review petition is filed.
3. The main contention in the review petition is that the
claimant is entitled for just and reasonable compensation. That
apart the injury suffered by the petitioner herein is nothing but
100% disability. This Court committed an error in reducing the
medical expenses. Apart from that, this Court ought to have
considered the appeal even though in the absence of the appeal
filed by the victim ought to have exercised under Order 41 Rule
33 of CPC. It is also the contention that the claimant is totally
disabled and disability is taken only 75% even though the
claimant disability is assessed at 85%. Hence, prayed this Court
to modify the judgment and order.
4. The learned counsel appearing for the review
petitioner would submit that this Court restricted the
compensation only to the extent of Rs.15,000/- instead of entire
medical bills. The Apex Court in Sapna v. United India
Insurance Company limited and another reported in (2008)
7 SCC 613, while considering the provisions under Section 163-
A of the Motor Vehicles Act, the Court can deviate and award
excess compensation and the same has not been taken note of.
Hence, it requires interference of this Court and to exercise the
review jurisdiction.
5. The learned counsel appearing for the review
petitioner in support of his arguments he relied upon the
judgment of the Telangana High Court in the case of Reliance
General Insurance, Hyderabad v. K. Ravi, Hyderabad and
another [M.A.C.M.A. 1137 of 2016] wherein, the Apex Court
taking into note of Section 163-A of the Act, as well as the
Judgment of the Apex Court in Puttamma and others v. K.L.
Narayana Reddy and another [(2013) 15 SCC 45] and
Oriental Insurance Company Limited v. Kulwinder Kaur
(2014 ACJ 1625)'s case, wherein, observed that the Second
Schedule contains a number of fallacies and it has to be followed
in broad principles and that in suitable cases where treatment is
long or loss is heavy, the compensation cannot be kept confined
within the limits prescribed by the Second Schedule.
6. The learned counsel also relied upon the judgment of
the Madras High Court in Civil Miscellaneous Appeal No.2033
of 2012 and M.P.No.1 of 2012. The learned counsel brought
to the notice of this Court in the said judgment also the said
Court taken note of the judgment of the Apex Court in
Puttamma's case (supra), held that, the medical expenses
incurred by the claimant need not be restricted to Rs.15,000/-as
per clause 4(ii) of the Second Schedule and entitled to claim the
actual amount incurred towards medical expenses.
7. The learned counsel also relied upon the judgment of
the Apex Court in the case of Puttamma and others v. K.L.
Narayana Reddy and another reported in [(2013) 15 SCC
45], and referring to this judgment, the learned counsel would
submit that the Court can modify and review the petition in
respect of the medical expenses as well as the grounds which
have been urged in the review petition.
8. Per contra, the learned counsel appearing for the
second respondent - Insurance Company would submit that the
Second Schedule has not yet amended and this Court taking into
note of the Second Schedule only modify the order passed by
the Tribunal and there are no grounds to review the petition. The
learned counsel also would submit that the other grounds which
have been urged cannot be urged in a review petition with
regard to the percentage of disability taken into consideration
and the same can be urged in the appeal not in the review
petition and there is no any error apparent on the face of the
record. Hence, the review jurisdiction cannot be exercised.
9. Having heard the respective counsel and considering
the material available on record, whether the petitioner has
made out the ground to review the petition. Admittedly, the
claim petition was filed and compensation was also awarded by
the Tribunal and the same has been challenged in the appeal by
the Insurance Company. This Court considering the grounds
urged in the appeal framed the following points for
consideration:-
(i) Whether the Tribunal has committed an error
in allowing the claim petition directing the
Insurance Company to pay the compensation
to the claimant?
(ii) Whether the Tribunal has committed an error
in granting compensation under the head
medical expenses to the tune of Rs.2,04,366/-
as against Rs.15,000/- as per Schedule II of
the I.M.V. Act?
(iii) Whether the claimant, in the absence of the
appeal is entitled for enhanced compensation
as contended by the learned counsel for the
claimant?
and answered point No.(i) as negative and answered point
No.(ii) as affirmative with regard to restricting the medical
expenses to Rs.15,000/- as against Rs.2,04,366/-. This Court
also taken note of the claim made by the appellant/review
petitioner for enhancement of compensation, the same has been
answered as negative. As the claimant has not filed any appeal.
The very same grounds are urged by the review petitioner
before the Court and when this Court comes to the conclusion
that in the absence of appeal not entitled for enhanced
compensation. The remedy is before the Appellate Court and not
before the very same Court. This Court cannot sit and review
the order with regard to the grounds urged in the review petition
with regard to the calculation and taking of the disability at 75%
as contended in the review petition.
10. However, this Court would like to refer to the
judgment of the Division Bench of this Court in the case of
Regional Manager, New India Assurance Company Limited
v. Vijay Balshiram Walunj and Others reported in ILR 2012
KAR 335, wherein, this Court considering the petition under
Section 163-A, referring the judgment of the Apex Court in
Sapna's case (supra), wherein, had an occasion to consider the
said provision and after considering the said provision in detail,
the Apex Court held that in appropriate cases, the Court can
deviate and award excess compensation. Hence, comes to the
conclusion that the Court can deviate with regard to the medical
expenses in excess of Rs.15,000/- and also observed that the
claimants were forced to spend more than Rs.3,50,000/- and the
medical expenses are not quantified. Hence, the matter was
remanded to the Tribunal to consider the matter on the said
point only. Hence, it is clear that in view of the principles laid
down in the judgment of Apex Court in Sapna's case (supra)
and also the Division Bench judgment of this Court, there is a
force in the contention of the learned counsel for the review
petitioner that this Court can review the petition in respect of the
medical expenses and the actuals which have been spent by the
petitioner. The Telangana High Court as well as the Madras High
Court referring the judgment of Puttamma's case, comes to the
conclusion that the Second Schedule as was enacted in 1994 has
now become redundant, irrational and unworkable and also the
Division Bench of this Court can deviate in view of the judgment
of Sapna's case (supra). Hence, it is appropriate to review the
order passed by this Court and the said judgments were also not
brought to the notice of this Court while disposing the matter,
either the judgment of the Telangana High Court or the
judgment of the Madras High Court and also the judgment of
this Court in Vijay Balshiram Walunj's case (supra). Under the
circumstances, this Court can modify the order by allowing the
review petition. Hence, I answer point No.(i) as affirmative.
11. In view of the discussions made above, I pass the
following:
ORDER
(i) The review petition is allowed in part.
(ii) The modification of the order passed by this
Court reducing the medical expenses of
Rs.2,04,366/- and reducing the compensation
to Rs.5,06,000/- instead of Rs.6,95,366/- is
modified, confirming the order of the Tribunal.
Consequently, the appeal filed by the
Insurance Company is dismissed.
Sd/-
JUDGE
cp*
