Karnataka High Court
The Regional Manager vs Amruth Dholu Patel on 21 November, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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MFA No. 1993 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO. 1993 OF 2013 (MV)
BETWEEN:
THE REGIONAL MANAGER,
UNITED INIDA INSURANCE COMPANY LIMITED,
SHANKAR NARAYANA BUILIDING,
I FLOOR, NO.25,
M.G.ROAD,
BANGALORE - 560 001.
NOW AT
REGIONAL MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
5TH FLOOR,
KRISHI BHAVAN,
NRUPATHUNGA RAOD,
HUDSON CIRCLE,
Digitally BANGALORE - 560 001.
signed by BY ITS MANAGER.
SOWMYA D
...APPELLANT
Location:
High Court (BY SRI. O MAHESH, ADVOCATE)
of Karnataka
AND:
1. AMRUTH DHOLU PATEL,
AGED ABOUT 47 YEARS,
S/O. BANGI DHOLU PATEL,
R/AT. SRI. DHOLU ENTERPRISES,
V.V. PURAM,
NELAMANGALA - 562 123.,
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MFA No. 1993 of 2013
BANGALORE RURAL DISTRICT.
2. MAHESH M DHOLU,
MAJOR,
S/O. MANILAL B PATEL,
R/AT. SRIDHOLU ENTERPRISES,
V.V.PURAM,
TUMKUR ROAD,
NELAMANGALA - 562 123
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY M/S. C.M. KEMPEGOWDA AND ASSOCIATES, ADVOCATE
FOR R1;
VIDE ORDER DATED 28.02.2013, NOTICE TO
R2 IS DISPENSED WITH)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:28.12.2012 PASSED IN MVC
NO.60/2011 ON THE FILE OF JUDGE, COURT OF SMALL
CAUSES, MACT, 26TH ACMM, BANGALORE, AWARDING A
COMPENSATION OF RS.4,77,664/- WITH INTEREST @ 6% P.A
(EXCLUDING INTEREST ON FUTURE MEDICAL EXPENSES),
FROM THE DATE OF PETITION TILL ITS REALIZATION.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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MFA No. 1993 of 2013
JUDGMENT
This appeal is filed by the Insurance company
challenging the quantum of compensation awarded by
Motor Accident Claims Tribunal, Court of Small Causes
(SCCH-09) Bangalore, in MVC No.60/2011.
2. The brief factual matrix leading to the case are
that on 19.10.2010, at about 7:00 p.m., on NH-4
Bangalore to Tumkur National Highway near
Chikkabidarakallu bus stop, the claimant was travelling on
a motor cycle bearing No.KA 02 HH 4372 as a pillion rider
towards Nelamangala. At that time, rider of the motor
cycle drove it in a rash and negligent manner and dashed
against the pedestrian. As a result, the vehicle fell down
and the petitioner suffered fracture injuries. He was
immediately shifted to Raghavendra hospital, Bangalore
for first aid and thereafter he was shifted to M.S.Ramaiah
hospital, Bangalore and he underwent surgery and he
spent more than Rs.2,50,000/- towards medical
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treatment. Due to fracture, he was permanently disabled
and he was earning Rs.12,000/- pm., and hence, he filed a
claim petition under Section 166 of the Motor Vehicle Act,
claiming compensation of Rs.6,00,000/-.
3. Respondent No.1 though appeared did not contest
the matter, while respondent No.2 filed the objection
statement, admitting the coverage of the policy and
validity of policy, but denied the rest of the allegations and
assertions made in the petition.
4. The Tribunal after appreciating the oral and
documentary evidence, awarded total compensation of
Rs.4,77,664/- with interest at the rate of 6% per annum.
Being aggrieved by this award, the Insurance company is
before this Court challenging the quantum.
5. Heard, the learned counsel appearing for
Insurance company. In spite of granting sufficient
opportunities, the learned counsel for claimant did not
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choose to appear before the Court so as to advance
arguments. Perused the records.
6. The learned counsel for appellant would contend
that the Tribunal has committed an error in taking
disability to the extent of 18% to the whole body in the
absence of any material evidence and income proof of the
claimant. He would further asserts that the medical bills
are duplicate bills and original bills are not produced and
accountant is also not examined. He would also asserts
that in the absence of any material evidence,
Rs.1,50,000/- was awarded towards future medical
expenses without any basis. He would also assert that the
PW-2 is not a treated doctor and the evidence discloses
that the original discharge certificate and other documents
were handed over to the claimant but they were not
produced and as such, he would seek for reduction of the
compensation.
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7. The evidence on record discloses that the
claimant was a pillion rider on a motor cycle bearing No.KA
02 HH 4372, which was involved in the accident. It is also
an undisputed fact that he suffered fracture and
dislocation of left hip. Ex.P2 is the copy of the wound
certificate and Ex.P12 is the inpatient record of
M.S.Ramaiah hospital. It is evident that the
petitioner/claimant have suffered left anterior and medial
acetabulur wall fracture with protrusion acetabulum. The
records further disclose that he underwent surgery i.e.,
pelvic cavity was opened and fracture fragments reduced
and skeletal traction was applied on 23.10.2010 and his
condition was shown to be satisfactory at the time of
discharge. Hence, it is evident that he suffered grevious
injury in the form of fracture of his left hip. It is material
portion of the body and the evidence of doctor is
corroborate the same.
8. PW2 deposed regarding he examining the
petitioner and further asserted that he has suffered
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disability to the extent of 37% to the left lower limb.
However, he did not give any disability to the whole body.
The Tribunal has taken disability to the extent of 18%
which is on higher side. Considering the disability to the
extent of 37% to the left lower limb, the disability to the
whole body can be taken at 13%.
9. Though the claimant claims that he was earning
Rs.12,000/- per month, no records are forthcoming and
though, he has relied on income tax records, the Tribunal
did not accept it as he was not the owner of the
establishment and the Dholu Enterprises belongs to the
father of the rider of the motor cycle. Further, the income
tax returns produced by him were pertaining to business
of Dholu Enterprise, which is nowhere connected to
claimant's title. Hence, the Tribunal has not taken the
income as Rs.12,000/- and considering the prevailing
rates, income was taken as Rs.4,500/- and by adding 30%
the income was taken at Rs.5,850/-. The said income
taken by the Tribunal cannot be said to be exorbitant as
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this Court is consistently taking the income at Rs.5,500/-
pertaining to the accident occurred in 2010. Hence, if the
income is taken at Rs.5,850/- and disability is taken as
13%, considering his age as 45 years, multiplier '14' would
be applicable. Hence, loss of future income would workout
as under:
Rs.5,850 X 12 X 14 X 13/100 = Rs.1,27,764/-
10. Hence, the claimant would be entitled for
compensation under the head of loss of future earning
capacity to the extent of Rs.1,27,764/- as against
Rs.1,76,904/- awarded by the Tribunal.
11. The Tribunal has awarded Rs.2,600/- under the
head of diet, conveyance and attendant charges, which is
not under serious challenge and the same does not call for
any interference. Further, under the head of loss of
income during the laid up period Rs.15,450/- was
awarded, which is also not under serious challenge. Under
the head of pain and suffering Rs.35,000/- was awarded
and under the head of loss of amenities Rs.50,000/- came
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to be awarded which are just and proper. Under the head
of discomfort and mental stress in life additional
Rs.6,000/- is awarded, which is unwarranted when the
compensation is awarded under the head of pain and
suffering and loss of amenities independently.
12. Under the head of medical expenses, the
Tribunal has awarded Rs.40,000/- on assumptions. The
medical bills produced by the claimant are all duplicate
bills. Originals were not produced and why originals were
not produced is not at all forthcoming. Further, the
accountant of the M.S. Ramaiah Hospital was also not
examined and when the Tribunal has not accepted the
medical bills to the extent Rs.79,527/- on account of non-
production of original bills, the question of awarding
Rs.40,000/- under the said head does not arise at all.
Hence, under the head of medical expenses, considering
the other incidental expenses, claimant would be entitled
for Rs.10,000/- alone as against Rs.40,000/- awarded by
the Tribunal, the question of awarding compensation of
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Rs.6,000/- under the head of discomfort and mental state
does not arise at all as observed above.
13. The Tribunal has awarded Rs.1,50,000/- under
the head of future medical expenses. The entire reliance
was placed by the Tribunal on evidence of PW2, but how
Rs.1,50,000/- came to be assessed is not at all
forthcoming. Even after lapse of nearly 10 years, no
documents have been produced to show that the claimant
underwent any such operation and he spent Rs.1,50,000/.
The Tribunal has not considered any of these aspects and
in strict sense, PW2 cannot be treated as a treated Doctor
as he admits that his signatures were not there in the
surgery notes. Further, he is not competent to depose this
aspect and administrator of Ramaiah Hospital could have
been examined or any experts from any Government
Hospital could have been examined in this regard. In the
absence of any material, the Tribunal has erred in
awarding Rs.1,50,000/- under the head of future medical
expenses and considering the nature of injury, the
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claimant may require additional surgery and hence, I
propose to award Rs.25,000/- under the head of future
medical expenses. Hence, the claimant would be entitled
for a total compensation under various heads as under:
Sl.
Particulars Amount
No.
1 Loss of future earning Rs.1,27,764/-
capacity
2 Diet, conveyance and Rs.2,600/-
attendant charges
3 Loss of income during laid Rs.15,450/-
up period
4 Pain and suffering Rs.35,000/-
5 Loss of amenities Rs.50,000/-
6 Medical expenses Rs.10,000/-
7 Future Medical expenses Rs.25,000/-
Total Rs.2,65,814/-
Award of Tribunal Rs.4,77,664/-
Reduced compensation Rs.2,11,814/-
14. Hence, claimant would be entitled for a total
compensation of Rs,2,65,814/- as against Rs.4,77,664/-
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awarded by the Tribunal. Hence, appeal needs to be
allowed in part and accordingly, I proceed to pass the
following:
ORDER
(i) The appeal is allowed in part.
(ii) The award passed by the Tribunal stands
modified.
(iii) The clamant-respondent No.1 herein is held
entitle for total compensation of
Rs.2,65,814/- as against Rs.4,77,664/-
awarded by the Tribunal. The said
compensation shall carry interest at the
rate of 6% except on Rs.25,000/- awarded
towards future medical expenses.
(iv) The liability is fastened on respondent No.2
Insurance Company-appellant herein.
(v) The amount in deposit made by the
appellant- insurance company shall be
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transmitted to the Tribunal for
disbursement and excess deposit, if any,
shall be refunded to the Insurance
Company.
Sd/-
JUDGE
PHM,DS
