Karnataka High Court
The Divisional Manager vs Saalibai And Anr on 19 May, 2022
Bench: J.M.Khazi
1
®
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 19TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
MFA.No.200789 OF 2018 (MV)
C/W
MFA.No.201966 OF 2018 (MV)
IN M.F.A.No.200789/2018:
BETWEEN:
THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
OPP. MINI VIDHANA SOUDHA,
N.G. COMPLEX STATION ROAD,
KALABURAGI.
... APPELLANT
(BY SRI. S.S.ASPALLI, ADVOCATE)
AND:
1. SAALIBAI
W/O KASU RATHOD
AGE: 64 YEARS, OCC. NIL
PREVIOUSLY COOLIE
R/O SEVALAL TEMPLE
VACHU NAIK TANDA
LADLAPUR TQ,
CHITTAPUR DISTRICT
KALABURAGI - 585 104
NOW AT H.NO.11-1121/14
KHADRI CHOWK, ALAND ROAD
KALABURAGI - 585 103
2. POMU S/O KASU RATHOD
AGE MAJOR,
OCC. OWNER OF
2
KA-32/EG-4101
R/O H.NO.5/46, LADLAPUR,
TQ CHITTAPUR,
KALABURAGI - 585 103
... RESPONDENTS
(BY SRI. SANJEEV PATIL, ADVOCATE FOR R1;
R2 SERVED)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988
PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED
17.01.2018 PASSED BY THE SENIOR CIVIL JUDGE & MACT -
CHITTAPUR, IN MVC NO.1039/2016 BY ALLOWING THE ABOVE
APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
IN M.F.A.No.201966/2018:
BETWEEN:
SAALIBAI W/O KASU RATHOD
AGED: 65 YEARS,
OCCU: NIL
PREVIOUSLY COOLIE
R/O NEAR SEVALAL TEMPLE
VACHU NAIK TANDA
LADLAPUR,
TQ CHITTAPUR,
DISTRICT KALABURAGI
NOW AT H.NO.11-1121/14
KHADRI CHOWK, ALAND ROAD
KALABURAGI
... APPELLANT
(BY SRI.SANJEEV PATIL, ADVOCATE)
AND:
1. POMU S/O KASHU RATHOD
AGED: MAJOR,
OCC. OWNER OF
KA-32/EG-4101
R/O 5/46, LADLAPUR,
TQ CHITTAPUR,
DISTRICT KALABURAGI - 585 211
3
2. THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
OPP. MINI VIDHANA SOUDHA
N.G. COMPLEX STATION ROAD
KALABURAGI - 585 102
... RESPONDENTS
(BY SRI. S.S. ASPALLI, ADVOCATE FOR R2;
V/O DATED 29.11.2018, NOTICE TO R1 IS DISPENSED WITH)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988
PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED
17.01.2018, PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND M.A.C.T., CHITTAPUR IN MVC NO.1039/2016, BY
ENHANCING THE COMPENSATION AMOUNT FROM RS.5,98,000/-
TO RS.20,00,000/- AND ALSO ENHANCE THE INTEREST
PAYABLE BY THE RESPONDENTS ON THE COMPENSATION
AMOUNT, AND FURTHER BE PLEASED TO ALLOW THIS APPEAL
FILED BY THE APPELLANT HEREIN IN THE ENDS OF JUSTICE.
THESE MFAs BEING HEARD AND RESERVED FOR
JUDGMENT ON 12.04.2022, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:-
JUDGMENT
&
ORDER ON I.A.No.1/2021 U/O 41 RULE 27 CPC FILED BY
PETITIONER
These two appeals are arising out of judgment and
award dated 17.01.2018 in MVC.No.1039/2016.
2. While MFA.No.200789/2018 is filed by the
Insurance company seeking reduction of compensation,
MFA.No.201966/2018 is filed by the petitioner for
enhancement of compensation.
3. Since respondent No.2 - Insurance company
has raised objections regarding admissibility of medical bill
for a sum of Rs.1,71,300/- which is marked as Bill No.1 of
Ex.P13, before this Court, petitioner has filed
I.A.No.1/2021 under Order 41 Rule 27 r/w/s 151 C.P.C,
with a prayer to permit petitioner to produce the additional
documents. Along with the said application, petitioner has
produced the original bill claiming that through the same
she has paid a sum of Rs.1,71,300/- to the United
Hospital, where she took treatment.
4. Respondent No.2 - Insurance company has not
filed objections to this application.
5. For the sake of convenience the parties are
referred to by their rank before the Tribunal.
6. FACTS: The brief facts leading to filing of claim
petition are that on 08.05.2016 at about 6.30 p.m.,
petitioner was proceeding to Wadi town to attend her
relative's marriage on motor cycle bearing registration
No.KA-32/EG-4101 (hereinafter referred to as offending
vehicle), as a pillion rider. One Kailash, S/o Shamrao was
riding the motor cycle. When they were near the bus stand
at Kalakatta village, on the hump the rider of the motor
cycle rode it in a high speed, in a rash or negligent manner
as a result of which both petitioner and rider fell down. In
the said accident, petitioner sustained head injuries.
Immediately she was shifted to Government Hospital, Wadi
and after first aid, she was taken to United Hospital,
Kalaburagi. She took treatment as in-patient from
08.05.2016 to 23.05.2016. On account of the injuries
sustained by the petitioner, inspite of prolonged treatment,
she is not completely cured. She is suffering from
permanent partial disability. She has spent Rs.3,00,000/-
for treatment and requires additional sum of Rs.2,00,000/-
further treatment. As the owner and insurer of the
offending vehicle, respondents are jointly and severally
liable to pay the compensation and hence the petition.
7. Before the Tribunal inspite of due service of
notice respondent No.1 remained absent and as such he
was placed Ex-parte.
8. Respondent No.2 has appeared and filed
written statement denying that the accident occurred due
to the rash or negligent act of the rider of the offending
vehicle. At the time of alleged accident, the rider of the
offending vehicle was not having a valid and effective
driving license. Respondent No.2 has also denied the age,
income, occupation of the petitioner, the nature of injury
sustained, period of treatment, expenses incurred and that
injuries have resulted in permanent partial disability. The
compensation claimed is exorbitant, baseless and
excessive.
9. Based on these pleadings, the Tribunal has
framed the necessary issues.
10. In support of her case, petitioner got herself
examined himself as PW-1 and two witnesses as PWs-2
and 3. She has got marked Exs.P1 to 15.
11. On behalf of respondent No.2, RW-1 is
examined and Ex.R1 is marked.
12. Vide the impugned judgment and award, the
Tribunal has partly allowed the claim petition and granted
compensation in a sum of Rs.5,98,000/- with interest at
6% p.a as detailed below:
Heads Amount
In Rs.
Towards Pain and Suffering 1,00,000
Towards Medical expenses 2,26,700
Towards Diet & Attendant 20,000
charges
Towards Loss of Future 1,36,080
Earnings
Towards Future Medical 1,00,000
Treatment
Loss of income during 15,000
treatment period
Total 5,97,780
Rounded Off 5,98,000
13. Challenging impugned judgment and award,
respondent No.2 has filed appeal contenting that the
impugned judgment and award is against the law,
evidence and circumstances of the case and as such liable
to be set aside. The petitioner has produced photocopies of
medical bills and based on it the Tribunal has erred in
granting compensation in a sum of Rs.2,26,700/- under
the head medical expenses. The disability assessed at 27%
of the whole body by the Tribunal is on the higher side.
The compensation granted under various heads is highly
exorbitant and baseless. At the time of accident, the
petitioner was not wearing helmet and as such she has
contributed towards the accident. Therefore, her part of
the negligence is to be calculated and proportionate
compensation is required to be reduced. The Tribunal has
also not appreciated the evidence of RW-1 and prays to
allow the appeal.
14. On the other hand not being satisfied with the
quantum of compensation, petitioner has filed the appeal
contending that the Tribunal should have taken her income
as Rs.15,000/- p.m and disability at 81% and
consequently the compensation granted under the head
loss of future income is on the lower side. The
compensation granted under the remaining heads is also
on the lower side. The interest is also required to be
enhanced and prays to allow the appeal and enhance the
compensation.
15. Heard arguments of both sides and perused
the record.
16. The points that would arise for consideration of
this Court are:
(i) Whether the respondent No.2 - Insurance
company has made out any justifiable grounds
to reduce the compensation?
(ii) Whether the petitioner has made out any
justifiable grounds to enhance the
compensation?
(iii) What order?
17. My findings to the above points are:
Point No (i): In the Affirmative
Point No (ii): In the Negative
Point No (iii): As per the final order for the
following:
REASONS
18. Point Nos (i) and (ii): Since these points
involve common discussion, they are considered together.
19. At the outset, it is relevant to note that in the
petition itself, the petitioner has given her age as 62 years.
However, in all the medical records, her age is noted as 65
years. Therefore, the Tribunal has rightly considered her
age as 65 years. Having regard to the fact that as on the
date of accident, petitioner was aged 65 years i.e., she
was well passed the age of earning, keeping the said fact
in mind the compensation payable to her is required to be
determined.
20. Though the petitioner has pleaded that she
was earning Rs.15,000/- p.m. that too by coolie, she has
not stated what actually she was doing which would fetch
her Rs.15,000/-p.m. that too at the age of 65 years. In
fact during her cross-examination petitioner has admitted
that for male coolies, Rs.120/- is paid per day, whereas for
female coolies, Rs.100/- is paid. In other words she has
admitted that at the most she could earn Rs.3,000/- p.m.
Such being the case in the absence of any other evidence
to the contrary the Tribunal has erred by taking her
monthly income as Rs.6,000/-p.m. Therefore, I am of the
considered opinion that having regard to the age of the
petitioner and her admission, it would be appropriate to
take the income of the petitioner at Rs.3,000/-p.m. which
could be the quantification of her services to her family
rather than her monthly income. Keeping in mind the
notional income of petitioner at Rs.3,000/-p.m, let me
examine whether the compensation granted by the
Tribunal is just and reasonable or whether it requires
further enhancement or reduction under the following
heads.
21. Pain and sufferings: Ex.P7 is the discharge
summary dated 23.05.2016. According to this document,
the petitioner has suffered the following injuries and the
procedure adopted:
Diagnosis: 1. Right TP EDH with left temporal contusion
and left TP thin SDH.
2. Fracture proximal end right humerus.
Procedure: Right FTP Creniotomy and EDH evacution
done on 09.05.2016.
Course in the Hospital: Patient presented with alleged
history of RTA near Halkata gate at around 6.30 p.m.,
c/o pain over the right elbow wrist joint, history of
vomiting, LOC. Right ear bleed active. Relevant
investigation were done. Intensivisit, Orthopeadic
surgeon, opinion was taken. Patient underwent above
procedure on 09.05.2016. Post operative was
uneventful, for fracture proximal end right humerus
patient advised for surgery but patient attenders refused
for surgery. Patient is being discharged with advice.
21.1 However, on 05.11.2017 when X-ray of the
skull was taken as per Ex.P8 the following is the result:
i) Evidence of craniotomy with cranioplasty noted in
Rt. fronto temporo parietal area.
ii) The other skull bones appear normal.
iii) The sella tursica and suprasellar areas are normal.
iv) The cranial fossae dorsum sella and clivus are
normal.
21.2 As per Ex.P9, the following is the X-ray report:
i) Evidence of comminuted fracture of upper end of
Rt. Humerus.
ii) The fracture fragments are slightly displaced.
iii) The Rt. Shoulder joint appears normal.
iv) Evidence of fracture of lower end of Rt. humerus
with dislocation of Rt. elbow joint noted.
21.3 It is pertinent to note that with regard to
fracture of proximal end right humerus though petitioner
was advised surgery, she did not chose to undergo
surgery. In this background, perusal of Ex.P-7 to 9 makes
it evident that on 05.11.2017 when evaluation of her
injuries were made for the purpose of ascertaining
disability, the X-ray report state that her condition is
normal. In view of the same, the grant of compensation in
a sum of Rs.1,00,000/- under the head pain and suffering
appears to be on the higher side. Looking to the age of the
petitioner and the nature of injury sustained, as well as the
extent to which she has responded to the treatment, it
would be appropriate and sufficient to grant compensation
in a sum of Rs.70,000/- under the head pain and
sufferings as against Rs.1,00,000/- granted by the
Tribunal.
22. Medical Expenses: The learned counsel
appearing for respondent No.2 submitted that some of the
medical bills are colour Xerox copies and the petitioner is
not having any explanation for the same i.e., not
producing the original bills. The Tribunal has granted
compensation in a sum of Rs.2,26,700/- towards the
medical expenses. The Tribunal has based this calculation
on medical bills produced by the petitioner. However, it is
relevant to note that the petitioner has produced some of
the medical bills more than once to increase the quantum.
The total number of bills produced are 154. Out of these
the first document consist of two sheets and consequently,
having two voucher numbers. If the same is taken as one
bill, then the total number of bills comes to 153. The
following is the details of the medical bills.
Sl.No. Invoice Whether Amount to
Sl.
as per Date No./Bill Amount Original or be taken into
No.
marking No. Photocopy consideration
6528 &
2 23.05.2016 004012 621 Original
27 23.05.2016 004012 621 Photocopy
3 19.05.2016 003761 210 Photocopy
152 19.05.2016 003761 210 Original
4 18.05.2016 003695 279 Original
30 18.05.2016 003695 279 Photocopy
5 19.05.2016 003742 225 Original
86 19.05.2016 003742 225 Photocopy
6 13.05.2016 003280 303 Photocopy
89 13.05.2016 003280 303 Original
7 18.05.2016 003676 19 Photocopy
53 18.05.2016 003676 19 Original
8 12.05.2016 003204 50 Photocopy
45 12.05.2016 003204 50 Original
9 11.05.2016 003087 5008 Photocopy
9 5008
50 11.05.2016 003087 5008 Original
10 12.05.2016 003191 4622 Photocopy
10 4622
48 12.05.2016 003191 4622 Original
11 12.05.2016 003210 55 Photocopy
51 12.05.2016 003210 55 Original
12 09.05.2016 141 5200 Original
12 5200
72 09.05.2016 141 5200 Photocopy
13 13 16.06.2016 3398 100 Original 100
14 03.06.2016 004965 388 Original
66 03.06.2016 004965 388 Photocopy
15 15 08.07.2016 MM08207 753 Original 753
16 17.05.2016 4530 550 Original
129 17.05.2016 4530 550 Photocopy
Sl. Sl.No. Invoice Whether Amount to
NO as per Date No./Bill Amount Original or be taken into
. marking No. Photocopy consideration
17 11.05.2016 003142 76 Photocopy
40 11.05.2016 003142 76 Original
18 19.05.2016 003764 248 Original
18 19 19.05.2016 003764 248 Photocopy 248
93 19.05.2016 003764 248 Photocopy
20 03.06.2016 004962 79 Photocopy
99 03.06.2016 004962 79 Original
21 19.05.2016 003730 56 Photocopy
28 19.05.2016 003730 56 Original
22 20.05.2016 003803 151 Photocopy
23 20.05.2016 003803 151 Original
24 21.05.2016 003860 93 Original
37 21.05.2016 003860 93 Photocopy
25 13.05.2016 003257 4916 Original
23 4916
104 13.05.2016 003257 4916 Photocopy
26 10.05.2016 003048 5121 Original
24 5121
35 10.05.2016 003048 5121 Photocopy
29 21.05.2016 003841 1008 Photocopy
25 1008
102 21.05.2016 003841 1008 Original
31 15.05.2016 003436 210 Photocopy
56 15.05.2016 003436 210 Original
32 17.05.2016 003647 10 Photocopy
113 17.05.2016 003647 10 Original
33 08.06.2016 005380 61 Photocopy
47 08.06.2016 005380 61 Original
34 03.06.2016 004963 1224 Photocopy
29 1224
76 03.06.2016 004963 1224 Original
36 16.05.2016 003532 163 Photocopy
114 16.05.2016 003532 163 Original
38 21.05.2016 003855 85 Photocopy
109 21.05.2016 003855 85 Original
Sl. Sl.No. Invoice Whether Amount to
NO as per Date No./Bill Amount Original or be taken into
. marking No. Photocopy consideration
39 21.05.2016 003842 120 Photocopy
94 21.05.2016 003842 120 Original
41 12.05.2016 003169 210 Original
68 12.05.2016 003169 210 Photocopy
42 12.05.2016 003193 461 Original
69 12.05.2016 003193 461 Photocopy
43 21.05.2016 003850 961 Photocopy
111 21.05.2016 003850 961 Original
44 11.05.2016 003104 217 Original
147 11.05.2016 003104 217 Photocopy
46 12.05.2016 003206 135 Original
84 12.05.2016 003206 135 Photocopy
49 12.05.2016 003163 33 Original
144 12.05.2016 003163 33 Photocopy
52 12.05.2016 003213 303 Original
90 12.05.2016 003213 303 Photocopy
54 15.05.2016 003424 4905 Original
40 4905
145 15.05.2016 003424 4905 Photocopy
55 09.05.2016 002930 15661 Original
41 15661
67 09.05.2016 002930 15661 Photocopy
57 14.05.2016 003368 90 Original
100 14.05.2016 003368 90 Photocopy
58 16.05.2016 003516 4852 Original
43 4852
95 16.05.2016 003516 4852 Photocopy
59 09.05.2016 002920 1497 Original
44 1497
65 09.05.2016 002920 1497 Photocopy
60 09.05.2016 002961 169 Original
75 09.05.2016 002961 169 Photocopy
61 13.05.2016 003234 210 Original
98 13.05.2016 003234 210 Photocopy
Sl. Sl.No. Invoice Whether Amount to
NO as per Date No./Bill Amount Original or be taken into
. marking No. Photocopy consideration
62 17.05.2016 484 400 Original
142 17.05.2016 484 400 Photocopy
63 03.06.2016 5054 350 Original
134 03.06.2016 5054 350 Photocopy
64 09.05.2016 002924 5346 Original
49 5346
78 09.05.2016 002924 5346 Photocopy
70 14.05.2016 003317 33 Original
103 14.05.2016 003317 33 Photocopy
71 14.05.2016 003329 5109 Original
51 5109
146 14.05.2016 003329 5109 Photocopy
73 10.05.2016 003007 135 Photocopy
117 10.05.2016 003007 135 Original
74 10.05.2016 003045 930 Photocopy
115 10.05.2016 003045 930 Original
77 09.05.2016 002919 2580 Photocopy
54 2580
83 09.05.2016 002919 2580 Original
79 09.05.2016 4402 700 Photocopy
151 09.05.2016 4402 700 Original
80 11.05.2016 4429 1150 Photocopy
56 1150
122 11.05.2016 4429 1150 Original
81 09.05.2016 002946 5370 Original
57 5370
85 09.05.2016 002946 5370 Photocopy
82 20.05.2016 003820 31 Original
92 20.05.2016 003820 31 Photocopy
87 17.05.2016 003593 9 Original
106 17.05.2016 003593 9 Photocopy
88 17.05.2016 003581 19 Original
107 17.05.2016 003581 19 Photocopy
91 16.05.2016 003369 19 Photocopy
119 16.05.2016 003369 19 Original
Sl. Sl.No. Invoice Whether Amount to
NO as per Date No./Bill Amount Original or be taken into
. marking No. Photocopy consideration
96 16.05.2016 003526 210 Photocopy
116 16.05.2016 003526 210 Original
97 18.05.2016 003708 135 Photocopy
153 18.05.2016 003708 135 Original
101 16.05.2016 003543 303 Photocopy
118 16.05.2016 003543 303 Original
105 17.05.2016 003607 1854 Photocopy
65 1854
108 17.05.2016 003607 1854 Original
66 110 08.07.2016 007476 1343 Original 1343
120 17.05.2016 4532 350 Original
135 17.05.2016 4532 350 Photocopy
121 08.05.2016 4391 2150 Original
69 2150
138 08.05.2016 4391 2150 Photocopy
123 12.05.2016 4438 500 Original
132 12.05.2016 4438 500 Photocopy
124 09.05.2016 467 400 Original
143 09.05.2016 467 400 Photocopy
125 23.05.2016 492 400 Original
128 23.05.2016 492 400 Photocopy
126 17.05.2016 494 2000 Photocopy
73 2000
137 17.05.2016 494 2000 Original
127 08.05.2016 456 2800 Photocopy
74 2800
136 08.05.2016 456 2800 Original
75 130 16.06.2016 3399 100 Original 100
76 131 16.06.2016 3400 100 Original 100
77 133 08.07.2016 5630 350 Original 350
139 21.05.2016 4594 450 Original
148 21.05.2016 4594 450 Photocopy
Sl. Sl.No. Invoice Whether Amount to
NO as per Date No./Bill Amount Original or be taken into
. marking No. Photocopy consideration
140 09.05.2016 459 2000 Photocopy
79 2000
141 09.05.2016 459 2000 Original
149 21.05.2016 4598 550 Photocopy
150 21.05.2016 4598 550 Original
Total 368646 99960
22.1 The repeated medical bills in the form of colour
Xerox/photocopies makes it evident that in order to claim
higher compensation, the petitioner has produced the
same medical bills more than once in the form of original,
colour Xerox and photocopies. From the analysis of the
medical bills, it is quite evident that even though petitioner
has produced 154 medical bills, out of them only 79 bills
are original. The rest of them are photocopies of the
originals produced more than once to claim higher
compensation.
22.2 Out of these, the first bill for Rs.1,71,300/- is a
photocopy. For reasons best known to her petitioner has
not chosen to produce original of it and rightly the Tribunal
has not taken it into consideration for granting
compensation under the head medical expenses. However,
petitioner has chosen to produce original of the first bill for
a sum of Rs.1,71,300/-. This bill indicates that at the first
instance a sum of Rs.1,40,000/- has been paid by way of
advance. Consequently, Rs.31,300/- was due. Out of this,
the hospital has given discount in a sum of Rs.20,000/-
and the petitioner was required to pay balance of
Rs.11,300/-. However, this document does not indicate
that petitioner has paid the said balance amount of
Rs.11,300/-. Consequently, the amount paid under this bill
is only Rs.1,40,000/-.
22.3 As mandated by Order 41 Rule 27 C.P.C, a
party shall not be entitled to produce additional evidence,
whether oral or documentary in the Appellate Court unless
and until it establish that the Court from whose decree
appeal is preferred has refused to admit the said evidence
or that notwithstanding the exercise of due deligence it
could not produce the same when the decree appealed
against was passed or Appellate Court requires such
document to enable it to pronounce judgment or for any
other substantial cause.
22.4 However, in the affidavit appended to the
application, petitioner has not given any reasons as to why
she could not produce the original document at the earliest
available opportunity. Except reiterating the facts
regarding she having met with the accident and suffered
injuries and that if the application is not allowed she would
be put to great hardship, she is not having any explanation
for not producing this document before the Tribunal.
Consequently, I am of the considered opinion that
petitioner has not made out any justifiable grounds to
allow this application and accordingly, the same is liable to
be rejected.
22.5 So far as remaining bills are concerned, the
Tribunal has failed to examine the remaining medical bills
minutely to ascertain that petitioner has produced
photocopies of the some of the originals to claim higher
compensation. In fact very cleverly petitioner has not
chosen to produce the medical bills in a chronological
manner which would have put the Tribunal on guard by
ascertaining the repetition of invoice numbers, dates and
amount. The petitioner has chosen to produce these
medical bills randomly and having regard to the huge
number of medical bills, they have missed the attention of
the Tribunal.
22.6 Moreover, before the Tribunal, the learned
counsel appearing for respondent No.2 is also not deligent
enough to cross-examine PW-1 on the aspect of same
medical bills being produced more than once in the form of
originals as well as photocopies to claim higher
compensation. As the responsible Officers of the Court
both learned counsel for petitioners and respondents owe a
duty not only to their clients but also to the Court. They
shall not be, more particularly the learned counsel
representing the petitioner, a party to the fraud played on
the Tribunal for the purpose of getting higher
compensation.
22.7 The manner in which these medical bills are
produced goes to show that the petitioner and her counsel
have willfully and intentionally mislead the Tribunal to
grant higher compensation. As noted earlier, in all 154
medical bills are produced. When large number of bills are
produced, it is bound to escape the attention of the
Tribunal/Court. However, the Tribunal is duty bound to
examine each and every bill to see whether they are
genuine or any bills are repeated. As Officers of the Court,
the learned counsel representing the petitioner as well as
respondents are required to assist the Court. Especially the
learned counsel for the petitioner should not mislead the
Court by producing such copies of the bills. The Tribunal
should insist that the bills should be produced in
chronological order, so that if any bill is repeated which is
of the same date and voucher number, then the
Tribunal/Court will be in a position to examine it. The
conduct of the learned counsel for petitioner in producing
the same bills time and again in different forms i.e., once
the original and other time Xerox copy and some other
time colour Xerox copy, in order to get higher
compensation is deprecated. Thus, from the scrutiny of the
medical bills, it is evident that petitioner is entitled for
compensation only in a sum of Rs.99,960/- as against
Rs.3,68,646/- claimed by the petitioner and Rs.2,26,700/-
granted by the Tribunal. Therefore, the compensation
granted under the head medical expenses is restricted to
Rs.99,960/-.
23. Diet and attendant charges: The Tribunal has
granted compensation in a sum of Rs.20,000/- under this
head. Having regard to the fact that the petitioner has
suffered multiple fractures and it would be reasonable to
expect that she was under treatment for a period of
around three months and therefore, compensation granted
under this head is reasonable and it requires no
interference.
24. Compensation during treatment period/Loss of
income during laid up period: At the rate of Rs.6,000/-
p.m. the Tribunal has granted compensation in a sum of
Rs.16,000/-. As already noted and as admitted by the
petitioner, a female coolie was paid Rs.3,000/-p.m i.e.
Rs.100/- per day and therefore the monthly income of the
petitioner is required to be taken at Rs.3,000/-. At this
rate, for a period of three months petitioner is entitled for
compensation in a sum of Rs.9,000/- p.m. under the head
loss of income during laid up period and therefore the
same is restricted to Rs.9,000/-p.m.
25. Loss of future earnings: The Tribunal has
granted compensation in sum of Rs.1,36,080/- under this
head. It has relied upon the evidence of PWs-2 and 3 to
determine the disability suffered by the petitioner. During
the course of his evidence, PW-2 has deposed that on
account of brain injury, the petitioner complains that there
is severe giddiness, reeling sensation and fallen number of
times and sustained minor injuries, neck tenderness and
neck movements are painful, unable to carry weight on
head, unable to balance due to cerebella contusion and
SDH etc, and psychosomatic disturbances like intolerance
to hot weather conditions, irritability memory abrasions,
lethargy etc; is impairing the routine physical working and
accounts for disability of 35%. Partial loss of hearing in R-
ear is due to damage of auditory nerve accounts for eranial
nerve disability of 10%. He has calculated the disability at
45% of the whole body.
25.1 It is pertinent to note that during the course of
her evidence, petitioner has not at all deposed that she is
suffering from all or any of these problems on account of
the injuries suffered by her. It appears after her evidence,
the petitioner has approached the doctor and secured such
an opinion to get higher compensation. Therefore, the
evidence of PW-2 that petitioner has suffered any disability
is to be rejected.
25.2 On the other hand PW-3 Dr. Raju Kulkarni has
assessed the disability so far as the injuries pertaining
Orthopedic are concerned. Having regard to the un-united
fracture of upper end of humerous and permanent physical
impairment in relation to the upper limb, he has calculated
the disability at 40%. He is not the doctor who has treated
her. Anyhow taking into consideration the fact that the
disability of upper limb is calculated at 40%, the whole
body disability would come around 15%. Therefore, the
loss of future income is required to be calculated by taking
whole body disability at 15%.
25.3 As already discussed in the absence of
evidence to the prove that the petitioner was earning
Rs.15,000/-p.m. and as evident from the admission given
by her the value of her services is to be considered at
Rs.3,000/-p.m. As per the decision of the Magma
General Insurance Co.Ltd case, the loss of future
prospects is required to be added. Since the petitioner was
aged 65 years at the time of accident and she was stated
to be doing coolie, 10% of her monthly income is required
to be added to calculate the future loss of income. 10% of
Rs.3,000/- comes to Rs.300/-. Therefore, the total notional
income required to be taken is Rs.3,300/-. Since the
petitioner is aged 65 years the appropriate multiplier is 7
and the disability at 15%. With these components, the loss
of future earnings is Rs.3,300 x 12 x 7 x 15% =
Rs.41,580/- as against Rs.1,36,080/- granted by the
Tribunal. Therefore, the compensation granted under this
head is restricted to Rs.41,580/-.
26. Future medical expenses: The Tribunal has
granted compensation in a sum of Rs.1,00,000/- under
this head. However, there is no evidence as to what
exactly is further treatment petitioner is required. In fact
at the time she was undergoing treatment, she has refused
to undergo surgery with regard to the fracture of upper
limb. Consequently, no implants are inserted. In the
absence of any evidence, the Tribunal has erred in
granting compensation in a sum of Rs.1,00,000/- and
there is no basis for arriving at such figure. Anyhow having
regard to the fact petitioner is aged 65 years at the time of
accident, it would be reasonable to grant compensation in
a sum of Rs.15,000/- under this head and accordingly,
compensation for future medical expenses is restricted to
Rs.15,000/- as against Rs.1,00,000/- granted by the
Tribunal.
27. Loss of amenities: The Tribunal has not
granted any compensation under the head loss of
amenities. Having regard to the nature of injuries
sustained, period of treatment, it would be appropriate and
reasonable to grant compensation in a sum of Rs.25,000/-
under the head loss of amenities of life.
28. Thus, in all petitioner is entitled for
compensation in a sum of Rs.2,80,540/- as against
Rs.5,98,000/- granted by the Tribunal, as detailed below:
Heads Amount granted Amount granted by
by the Tribunal this Court
In Rs. In Rs.
Towards Pain and 1,00,000 70,000
Suffering
Towards Medical 2,26,700 99,960
expenses
Towards Diet & 20,000 20,000
Attendant charges
Towards Loss of 1,36,080 41,580
Future Earnings
Towards Future 1,00,000 15,000
Medical Treatment
Loss of income during 15,000 9,000
treatment period
Loss of amenities - 25,000
Total 5,97,780 2,80,540
Rounded Off 5,98,000
29. Of course the petitioner is entitled for interest
at 6% as granted by the Tribunal.
30. In the result the appeal filed by the respondent
No.2 Insurance company requires to be allowed in part. It
is pertinent to note that though in this appeal
compensation under the head loss of amenities is granted
(which was not granted by the Tribunal), having regard to
the fact that the compensation granted under other heads
is reduced, in the result appeal filed by the petitioner fails
and accordingly I proceed to pass the following order
ORDER
(i) MFA.No.201966/2018 is filed by the
petitioner is dismissed.
(ii) I.A.No.1/2021 filed by petitioner under
Order 41 Rule 27 r/w/s 151 C.P.C is also
rejected.
(iii) MFA.No.200789/2018 is filed by the
Insurance company is allowed in part
(iv) Petitioner is entitled for total
compensation in a sum of
Rs. 2,80,540/- as against Rs.5,98,000/-
granted by the Tribunal together with
interest at 6% p.a. from the date of
petition till realization.
(v) Respondent No.2 is directed to pay the
compensation together with interest at
6% p.a. on Rs.2,65,540/- (i.e., petitioner
is not entitled for interest on Rs.15,000/-
under the head future medical expenses)
from the date of petition till realization
(minus the compensation already
paid/deposited) within a period of six
weeks from the date of this order.
(vi) If the amount in deposit made by
respondent No.2 is in excess of its
liability, it is entitled to withdraw the
same.
(vii) If the amount paid by respondent No.2 is
in excess of entitlement of the petitioner,
respondent No.2 is entitled to recover
the balance from the petitioner.
(viii) The registry is directed to transmit the
trial Court record along with copy of this
order to the Tribunal.
Sd/-
JUDGE
RR
