Karnataka High Court
R C Venkatareddy vs Sudhakar Reddy on 9 March, 2022
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
M.F.A. NO.4101 OF 2019 (MV-I)
BETWEEN:
R.C.VENKATAREDDY
S/O.LATE CHINNAPPAREDDY
AGED ABOUT 62 YEARS
R/AT MARGANAKUNTE
BAGEPALLI
CHIKKABALLAPURA TALUK - 561 207
.. APPELLANT
(BY SRI SHANTHARAJ K., ADVOCATE)
AND:
1. SUDHAKAR REDDY
S/O.SUBBIREDDY
MAJOR
RESIDING AT NO.3-48
CHINNIPANIPALLI VILLAGE
CHINNIPANIPALLI POST - 515 556
2. NATIONAL INSURANCE COMPANY LIMITED
BY ITS MANAGER
NO.144, 2ND FLOOR
SHUBHRAM COMPLEX
M.G.ROAD
BENGALURU - 560 001
... RESPONDENTS
(BY SRI RAVISH BENNI, ADVOCATE FOR R-2NOTICE
TO R-1 IS DISPENSED WITH V.O.D. 8.9.2021;)
***
THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLES ACT
AGAINST THE JUDGMENT AND AWARD DATED 09.01.2019
PASSED IN MVC NO.6136/2017 ON THE FILE OF THE
2
COURT OF SMALL CAUSES, AND MEMBER MACT,
BENGALURU PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION AND ETC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for admission, with the
consent of both the learned counsel the same is taken up
for final disposal.
2. Heard learned counsel Mr. Shantharaj.K., for
appellant and learned counsel Mr. Ravish Benni, for
respondent No.2.
3. This is an appeal preferred by the claimant
being aggrieved by the judgment and award dated
08.01.2019 passed in MVC No. 6136/2017 before the
MACT, Bangalore (hereinafter referred to as 'the Tribunal')
and seeking for an enhancement of the compensation.
4. Brief Facts:
On 25.07.2017 at about 10.30 am when the claimant
was riding in his TVS XL Heavy Duty bearing registration
No.KA-40 X-1171 and reached near Chinnapalli Cross,
Bagepalli, Chikkaballapura District, at that time one Hero
Honda Splendor Motor cycle bearing registration No.AP-02
BF-9159 ridden by its rider came in a high speed and rash
and negligent manner so as to endanger human life, safety
and property dashed against the TVS XL two wheeler ridden
by the claimant. Due to which, claimant fell down and
sustained grievous injuries. Thereafter, claimant was
shifted to various hospitals for treatment and he was
inpatient for seven days in Fortis Hospital and three days in
Bagepalli Hospital.
5. Claimant is said to be aged 60 years as per the
claim petition and affidavit and is said to be an agriculturist
earning Rs.15,000/- per month as on the date of accident.
Due to the impact of the accident caused by the rash and
negligent manner of driving by the rider of the Hero Honda
Motor cycle claimant has suffered serious injuries to his
body as narrated in the claim petition. Therefore, he filed a
claim petition claiming compensation before the Tribunal.
6. On service of notice, the respondent No.2 - the
Insurance Company, appeared and filed its statement of
objections. Respondent No.1 - Owner of the Hero Honda
Motor cycle pleaded that since his vehicle was insured with
respondent No.2 - Insurer and the Policy being valid as on
the date fo accident respondent No.2 - Insurer would be
liable for any liability as against him and so also, he
pleaded that he had a valid driving license as on the date of
accident.
7. Respondent No.2 - Insurer submitted that the
Policy was in force and it denied the claim made by the
claimant, inter alia, amongst other grounds also took up a
plea that the accident occurred due to the fault of claimant
and contended that respondent No.1 - rider of the motor
cycle was not holding a valid driving license as on the date
of accident. It is contended that the negligence was on the
part of the claimant. Further, it denied the avocation of
claimant. Hence, denied the liability on itself to pay the
compensation and sought for dismissal of the claim petition.
8. On the basis of the pleading the Tribunal
framed relevant issues.
9. In order to prove and establish his case, the
claimant got examined himself as PW1 and got marked
Ex.P1 to P9. He also got examined a Doctor as PW2-Doctor
and got marked Ex.P10 to P12. The respondents on the
other hand did not step into the witness box or neither lead
any evidence to counter the case of claimant, but it
produced one document marked as Ex.R1.
10. After hearing both sides and providing sufficient
opportunity to both parties, the Tribunal came to the
conclusion that the claimant would be entitled for a
compensation in a sum of Rs.1,64,000/- with interest at the
rate of 6% per annum from the date of claim petition till
the date of payment. The Tribunal fixed liability as against
respondent No. 2 and directed to pay the compensation.
11. Being aggrieved by the Judgment and award of
the Tribunal, the claimant has preferred this appeal seeking
for enhancement.
12. The point that would arise for consideration is
as to whether the Tribunal has awarded a reasonable and
just compensation commensurate to the injuries suffered
by the claimant in the accident occurred on 25.07.2017?
13. Learned counsel for the claimant contends that
the impugned Judgment and award passed by the Tribunal
is erroneous and it has awarded meager and inadequate
compensation resulting in mis-carriage of justice to the
claimant. He further contends that Tribunal has committed
a serious error in awarding only paltry sum of
Rs.1,64,000/- and the same requires to be enhanced. He
further contends that the Tribunal has failed to assess
proper income to arrive at a compensation which ought to
be just compensation.
14. Learned counsel for claimant further contends
that the claimant was earning Rs.13,000/- per month. He
further contends that he got examined PW2-Doctor, who
has categorically stated in his evidence that the claimant
has suffered permanent disability to the extent of 33% and
whole body disability is assessed at 33%, has not been
appreciated and considered by the Tribunal. He further
contends that Tribunal erred in taking disability by
deducting 1/3rd of the same and arrived at 10%, which is
erroneous on the facts and circumstances of the case and
opinion expressed by the expert doctor and on the material
placed on record.
15. Learned counsel for claimant further contends
that the Tribunal grossly erred in not awarding
compensation for actual medical expenses and damages
even though claimant has produced necessary documents
and also with respect to injuries suffered by him in the
accident. It is further contended that claimant was
inpatient and has spent an amount of Rs.12,000/- towards
premium of a family health plan and thereby a sum of
Rs.40,000/- has been adjusted and deducted in the total
inpatient bill and the same deserves to be granted for the
simple reason that claimant has taken separate health plan
by paying separate premium for medical treatment in case
of any emergent situation.
16. He further contends that on the other grounds
also the Tribunal has erred in not awarding reasonable
compensation such as, under the head of loss of amenities,
pain and suffering, expenses towards diet, conveyance and
nourishment. Hence, on those grounds he seeks to allow
the appeal and enhance the compensation.
17. Per contra, learned counsel Mr. Ravish Benni,
for respondent No.2 - Insurer vehemently contends that
judgment and award passed by the Tribunal is a reasoned
and considered order and the Tribunal has considered all
aspects of income, multiplier, loss of future income so also
pain and sufferings and accordingly awarded just and
reasonable compensation and the same does not warrant
interference by this Court.
18. Learned counsel for respondent No.2 - Insurer
further contends that claimant has not come before Court
with clean hands and fabricated medical records and also
he has not produced any material documents with regard to
proof of income, so also, with regard to proof of his age.
Therefore, Tribunal has rightly assessed income based on
the documents produced, which does not call for
interference. He further contends that the material evidence
produced by the claimant with regard to expenses made for
medical treatment is not clearly forthcoming and therefore,
Tribunal has properly assessed at Para-11 of the impugned
judgment and awarded what is sought for at Rs.38,000/-.
Therefore, there is no error in the judgment and award and
conclusion arrived at by the Tribunal.
19. Learned counsel for respondent No.2 - Insurer
further contends that as per Ex.P9, which is produced by
the claimant, claiming Rs.77,698/- towards medical bills
and some of the bills have already been reimbursed to him
under family health scheme, which fact is admitted by the
claimant. Therefore, it is his contention that when claimant
himself has sought to claim only Rs.77,698/- and having
deducted the reimbursement amount of Rs.40,000/-,
remaining amount of Rs.38,000/-, which is sought by
claimant and rightly awarded by the Tribunal, there is no
error committed by the Tribunal in awarding the said
amount to the claimant as medical expenses and deducting
the reimbursed amount.
20. Learned counsel for respondent No.2 - Insurer
further contends that doctor, examined by the claimant as
PW2, has adduced evidence in many of the accident cases
and is a habitual regular witness in accident cases and he is
not the doctor who actually treated the claimant. He further
contends that even according to PW2 there is fracture of
right clavicle, right 3rd, 7th to 10 ribs with
haemopneumotharax, fracture of right distal radius,
bilateral fracture anterior arch of atlas and bifrontal
contusions. Therefore, based on these injuries disability is
to the extent of 33% and Tribunal has rightly calculated the
same at 10%, which does not call for interference by this
Court.
21. Learned counsel for respondent No.2 - Insurer
further contends that judgment and award passed by the
Tribunal with regard to other heads are in accordance with
law, with material documents produced and also keeping in
mind normal expenditure that would have been spent by
the claimant during the period of inpatient and thereafter
for future treatment and other amenities. On these
grounds learned counsel for respondent No.2 - Insurer
prays for dismissal of the appeal filed by the appellant.
22. It is further contended by the learned counsel
for respondent No.2 - Insurer that though it is contended
by the claimant that his aged is 60 years, he himself has
produced Ex.P13 - Aadhar Card, which shows that the date
of birth of the claimant is 03.04.1946 and accordingly, as
on the date of accident claimant was aged about 71 years.
In view of the fact that the claimant himself has produced
Ex.P13 and cannot turn around so as to suit his
convenience.
23. In reply to the aforesaid arguments of the
learned counsel for respondent No.2 - Insurer with regard
to production of Ex.P13 - Aadhar Card, learned counsel for
claimant contends that Aadhar Card is not the sole basis for
assessing the age of the claimant. He further contends that
claimant has pleaded and authentically stated that he is
aged 60 years and the doctor who examined him in
discharge summary and other records states that his age is
60 years and hence the age has to be taken as 60 years
rather than what is stated in Ex.P13 - Adhar Card.
24. Having heard the learned counsel for appellant
and respondent No.2 points that arise for consideration
before this court are:
"(1) Whether the Tribunal has erred in
awarding just and reasonable
compensation on the basis of material
documents produced both oral and
documentary?
(3) Whether the claimant is entitled for
enhancement?"
25. On careful examination of entire material
documents including original documents and on the basis of
the elaborate submission made by both the learned
counsel, I am of the opinion that claimant is entitled to
marginal indulgence for enhancement of compensation for
the reasons mentioned herein below.
26. It is not in dispute that on 25.07.2017 at about
10.30 am while the claimant was proceeding by riding his
TVS XL Heavy Duty bearing registration No. KA-40 X-1171,
when he reached near Chinnapalli Cross, Bagepalli, one
Hero Honda Splendor Motor cycle bearing registration No.
AP-02 BF-9159 ridden by its rider in a rash and negligent
manner and dashed against the Motor cycle ridden by the
claimant. To establish the same claimant got marked Ex.P1
to P6, which are Police records, which is pursuant to the
investigation and enquiry conducted by the Police. These
documents are not seriously disputed or challenged by the
respondents. In these Police records having culminated in
the criminal case and since the same has not been
challenged by the respondents, same will have to be
accepted on its evidentiary value and in this case criminal
case has been registered against the rider of the offending
vehicle for the offences punishable under Sections 279, 337
and 338 of IPC, it could be safely inferred that rider of the
Motor cycle is responsible for occurrence of the accident
and he was rash and negligent manner of riding the Motor
cycle. Hence, there is no negligence on behalf of the
claimant.
27. Now, in order to assess the income of the
claimant this Court will have to peruse the material
documents produced by the claimant. Though claimant has
stated that he was an agriculturist and earning Rs.15,000/-
per month, he has not produced any piece of document to
show that he was working as an agriculturist and earning
Rs.15,000/- per month. In view of non production of any
document to the effect that he was an agriculturist and
earning Rs.15,000/- per month, the Tribunal has assessed
the income of the claimant at Rs.8,000/- per month for
computation of compensation.
28. However, it is not in dispute that the accident
has occurred in the year 2017 and the notional income
prescribed by the Legal Services Authority Chart for the
accident of the year 2017 is Rs.11,000/- per month. In
view of the same, I am of the opinion that the tribunal has
erred in assessing the income of the claimant at Rs.8,000/-
per month. In a case where claimant has not produced any
piece of evidence with regard to his proof of income and he
being an agriculturist as claimed by the claimant the Court
will have to do guess work in assessing the income of the
claimant. While doing such guess work, the Court will have
to adopt standard methodology and to assess the notional
income the Courts will also have to follow the Legal
Services Authority Chart to maintain the standard income
plan. Accordingly, I am of the opinion that for the accident
of the year 2017 the notional income prescribed as per the
said chart is Rs.11,000/- and in the present case on hand,
the notional income would be taken as Rs.11,000/- as
against Rs.8,000/- taken by the Tribunal.
29. The claimant has pleaded in his claim petition
and also adduced the evidence that he is aged about 60
years as on the date of accident. However, claimant
himself has produced Ex.P13, which is Adhar Card and
relied on the same for the purpose of age. As per Ex.P13 -
Aadhar Card the date of birth of the claimant is 03.04.1946,
which on calculation as on the date of accident shows that
the claimant is aged 71 years.
30. Though it is vehemently contended by the
learned counsel appearing on behalf of claimant that Ex.P13
- Aadhar Card need not be necessarily taken as proof of
date of birth, the date of birth will have to be assessed on
the basis of the pleadings, evidence of the parties available
on record and medical records produced and even the
doctor has stated that the age of the claimant is 60 years.
As against this learned counsel for respondent No.2 -
Insurer vehemently disputed and opposed the said
contention and legal position and he has stated that once
claimant has produced Ex.P13 - Adhar Card, which is
Government provided document, for the purpose of and in
proof of his age, it has to be accepted.
31. He further contends that claimant cannot turn
back and say that he is not relying on the document which
he has produced and got marked in his evidence. He
further contends that the Division Bench of this Court in
catena of judgments held that Aadhar Card is the basis for
taking age or income of a person. In view of the same, I
am not inclined to accept the arguments putforth by the
learned counsel for claimant that Aadhar Card cannot be
considered as proof of his age. I am in agreement with the
contentions of the learned counsel for respondent No.2 -
Insurer that Ex.P13 - Adhar Card is to be considered for the
purpose of deciding the age of the claimant and
accordingly, the Tribunal has also appreciated the same and
considered the age of the claimant as 71 years as on the
date of accident.
32. The claimant has got examined doctor as PW2,
who has given detailed evidence and also he has been
subjected to cross examination. The medical records have
been produced at Ex.P7 by the claimant, would show that
the injuries sustained by the claimant are grievous in
nature. On detailed analysis of the discharge summary at
Ex.P7, it is seen that the claimant has suffered serious
injuries, such as, fracture of right clavicle, right 3rd, 7th to
10 ribs with haemopneumotharax, fracture of right distal
radius, bilateral fracture anterior arch of atlas and bifrontal
contusions.
33. Therefore, based on these evaluation of
discharge summary issued by the doctor, who treated the
claimant, PW2 assessed the disability of the claimant at
33% to the whole body. On careful examination of medical
documents produced including discharge summary and
evidence of the doctor as PW2, I do not find any irregularity
or legal infirmity in the expert opinion expressed by the
doctor. The Tribunal, however, has taken disability as
assessed by the doctor at 33% and has divided the same
by 1/3 to arrive at 10% to the whole body. I am of the
opinion that this assessment of the disability of the claimant
at 10% by the Tribunal does not require interference by this
Court. Therefore, I am not in agreement of the learned
counsel for respondent No.2 - Insurer and I agree with the
contention urged by the learned counsel for claimant.
34. In the present case on hand, on the basis of
Ex.P7 - discharge summary issued by PW2, it is clear that
there is permanent disability of 33% to the whole body.
Tribunal has taken 1/3rd of the same at 10%. On
evaluation of medical records and Ex.P7 including the
evidence of doctor, the opinion expressed by the doctor as
PW2 that the claimant has permanent disability of 33% to
whole body, is correctly assessed and the same does not
need interference. However, the Tribunal has assessed at
10% which requires to be set aside and in my opinion the
permanent disability of the claimant is to be taken at 33%
to the whole body.
35. The age of the claimant was 71 years, whereas
the claimant has produced document Ex.P3 to show that he
was born in the year 1946, which shows that he was 71
years. However, for the age of 71 years the multiplier
applicable to the claimant as per the judgment of the Apex
Court in the case of Sarla Verma (Smt) and others vs.
Delhi Transport Corporation and another, reported
in (2009) 6 Supreme Court Cases 121 would be 5.
Accordingly, multiplier 5 has been rightly adopted by the
Tribunal, which needs no inference by this Court.
36. In view of the above the claimant is entitle for
the compensation towards loss of future earning capacity
due to disability in a sum of Rs.2,17,800/- (Rs.11,000/- X
12 X 5 X 33/100) as against Rs.48,000/- awarded by the
Tribunal.
37. The Tribunal has awarded a sum of Rs.30,000/-
under the head pain and suffering. Considering the facts
and circumstances of the case, I deem it proper to increase
it by another sum of Rs.20,000/- making it totally
Rs.50,000/- under this head.
38. For the loss of laid up period the Tribunal has
awarded a sum of Rs.8,000/-. In view of the fact that this
Court has enhanced the income of the claimant to
Rs.11,000/- and considering the fact that claimant has
suffered serious injuries and permanent disability, it would
be appropriate to take three months as laid up period
instead of one month as taken by the Tribunal and a sum of
Rs.33,000/- (Rs.11,000/- X 3) is to be awarded to the
claimant as against Rs.8,000/- awarded by the Tribunal.
39. With regard to medical expenses the Tribunal
has awarded a sum of Rs.38,000/-, which is seriously
disputed by the learned counsel for claimant. On careful
examination of the entire material on record, more
specifically Ex.P9, which are medical bills, it is seen that the
total amount spent by the claimant is Rs.3,14,573/- and
the claimant himself is claiming only Rs.77,698/-, since the
remaining amount has been paid by the family health plan
company. The claimant has also stated that he is paying a
sum of Rs.12,000/- towards the said health plan as
premium. The learned counsel for claimant submits that
that amount should not have been deducted from the
actual expenditure towards medical bills. Learned counsel
for respondent No.2 - Insurer vehemently opposed to the
said contention. However, on careful consideration of
material documents at Ex.P9 and evidence adduced by the
doctor and also on consideration of Ex.P7 - discharge
summary, it is not in dispute that the claimant has
undergone treatment for serious injuries and suffered
disability. In view of the same actual medical bills produced
by the claimant amounting to Rs.3,14,573/- deserves to be
granted. Even though the claimant is claiming only
Rs.77,698/- out of it and stated that the same has been
paid by the family health scheme, it is clear that the
claimant has paid Rs.12,000/- as premium towards the said
plan. Therefore, in my opinion, the claimant would be
entitled to actual amount spent by him in a sum of
Rs.3,14,573/- as against Rs.38,000/- awarded by the
Tribunal.
40. Towards diet and conveyance, the Tribunal has
awarded a sum of Rs.10,000/- to the claimant, which is
just and reasonable and hence the same is not disturbed.
41. The Tribunal has awarded a sum of Rs.20,000/-
towards loss of amenities to the claimant. Considering the
nature of injuries suffered and disability at 33% to the
whole body, in my opinion, another sum of Rs.30,000/- has
to be awarded under this head amounting to Rs.50,000/-
towards loss of amenities.
42. The Tribunal has awarded a sum of Rs.
10,000/- towards loss of future medical expenses. The
claimant has not produced any material documents for the
expenses to be incurred in future. Hence, the same is not
disturbed.
43. In view of the discussions made above, the
claimant would be entitled for the enhanced
compensation as mentioned in the table below.
Sl.No. Heads Amount (Rs.)
1. Loss of future income 2,17,800=00
(Rs.11,000/- X 12 X 5 X
33/100)
2. Pain and suffering 50,000=00
3. Loss of laid up period 33,000=00
4. Medical expenses 3,14,573=00
5. Loss of future income 10,000=00
6. Towards diet and 10,000=00
conveyance
7. Loss of amenities 50,000=00
TOTAL: 6,85,373=00
44. In view of the discussions made above, I pass
the following:
ORDER
i) The appeal is partly allowed.;
ii) Consequently, the judgment and award dated
08.01.2019 passed in MVC No. 6136/2017
before the MACT, Bangalore, is modified.;
iii) The compensation awarded by the Tribunal in
a sum of Rs.1,64,000/- is enhanced to
Rs.6,65,573/- (Rupees six lakhs sixty five
thousand five hundred & seventy three only),
with 6% interest from the date of claim
petition till its realization.;
iv) All other conditions imposed by the Tribunal
being left intact.;
v) The insurer shall pay the differential enhanced
compensation amount within a period of six
weeks from the date of receipt of a copy of
this judgment.
vi) Registry to send back the trial Court records.
vii) No order as to costs.
Sd/-
JUDGE
VK
