In the High Court of Karnataka at Bangalore Dated This the 7Th Day of August 2014 Before the Hon'ble Mr.Justice Aravind Kumar
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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7TH DAY OF AUGUST 2014 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR M.F.A. NO. 7006/2008 C/W MFA.7119/2008 (MV) IN MFA.No.7006/08: BETWEEN: 1.THE ORIENTAL INSURANCE CO LTD BRANCH AT KULYADI BUILDING, K.S.RAO ROAD MANGALORE BY THE MANAGER, REGIONAL OFFICE THE ORIENTAL INSURANCE COMPANY LIMITED LEO SHOPPING COMPLEX, NOS.44/45 RESIDENCY ROAD, BANGALORE-560 025 ... APPELLANT (By Sri.R RAJAGOPALAN, ADVOCATE) AND: 1.SHRI CHANDRAHASA BANGERA AGED ABOUT 27 YEARS S/O LATE SHRI NONAYYA POOJARY, R/AT JYOTHISHREE NILAYA NEAR DURGA PARAMESHWARI TEMPLE IRUVAIL, MANGALORE-575 001 2 2.SHRI G MOHAMMED S/O SHRI G PAKRUDDIN AGED ABOUT 68 YEARS R/AT PARAI HOUSE VAMANJOOR MANGALORE-575 001 ... RESPONDENTS (By Sri. I THARANATH POOJARY, ADV. FOR R1; NOTICE TO R-2 DISPENSED WITH V/O. DATED 25/11/2010) THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE JUDGEMENT AND AWARD DATED 17.03.2008 PASSED IN MVC NO.846/2005 ON THE FILE OF I ADDITIONAL DISTRICT JUDGE & MACT-II, DAKSHINA KANNADA, MANGALORE, AWARDING A COMPENSATION OF RS.12,21,000/- WITH INTEREST @ 6% P.A. ON RS.4,05,000/- FROM THE DATE OF PETITION TILL PAYMENT. IN MFA.No.7119/08: BETWEEN: 1.CHANDRAHASA BANGERA S/O. LT NONAYYA POOJARY AGED ABOUT 25 YEARS R/AT JYOTHI SHREE NILAYA NEAR DURGAPARAMESHWARI TEMPLE IRUVAI,MANGALORE TALUK. ... APPELLANT (By Sri. ROHIT URS.D. FOR SRI. I THARANATH POOJARY, ADVOCATE) 3 AND: 1.G MOHAMMED S/O. G PAKRUDDIN AGED ABOUT 65 YEARS R/AT PARAI HOUSE VAMANJOOR MANGALORE TALUK. 2.THE ORIENTAL INSURANCE CO LTD KS RAO ROAD KULAYDI BUILDING MANGALORE TALUK. ... RESPONDENTS (By Sri.R. RAJAGOPALAN, ADV FOR R-2; NOTICE TO R-1 DISPENSED WITH V/O. DATED 10.2.2012) -0-0-0-0-0- THIS MFA IS FILED U/S.173(1) OF MV ACT AGAINST THE JUDGMENT & AWARD DATED 17/3/2008 PASSED IN MVC NO.846/05 ON THE FILE OF THE I ADDL.DISTRICT JUDGE & MACT-II, D.K., PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION & SEEKING ENHANCEMENT OF COMPENSATION. These appeals coming on for hearing this day, the Court delivered the following: 4 JUDGMENT These two appeals have been preferred challenging the correctness and legality of the judgment and award passed by I Additional District Judge and MACT-II, Dakshina Kannada, Mangalore, in MVC.No.846/05 whereunder the claim petition filed by the claimant-first respondent herein came to be allowed in part and a total compensation of Rs.12,21,000/- with interest at 6% per annum on Rs.4,05,000/- from the date of petition till the date of payment has been awarded is called in question both by the claimant as well as by the insurer. 2. I have heard arguments of Sri. Rajagopalan, learned counsel appearing for insurer and Sri. Rohit Urs.D., appearing on behalf of Sri. I. Tharanath Poojary for claimant. Perused the judgment and award in question as well as the records of the Tribunal. 5 3. Parties are referred to as per their rank before the Tribunal. Claimant filed a petition under Section 166 of M.V. Act, 1988 claiming compensation of Rs.20 Lakhs contending inter-alia that while he was travelling in his motor cycle on 23.12.2004 at about 9.30 A.M. from Iruvali side towards Moodabidri in Kuppepadavu- Moodabidri road, a bus bearing Regn.No.KA-19A-7915 coming from opposite direction dashed against his vehicle and due to the impact he fell down and sustained grievous injuries and his vehicle was also damaged. As such, he sought for payment of compensation. Insurer appeared and filed his statement of objections denying the averments made in the claim petition. The owner of the offending vehicle was placed exparte. Tribunal formulated issues for its determination on the basis of the pleadings of the parties and claimant got himself examined as P.W.1 and he also examined seven witnesses as P.Ws.2 to 8 in support of his claim. Out of whom three of them were 6 doctors namely P.Ws.3, 7 and 8. None were examined on behalf of respondent-insurer and after evaluation of evidence of parties, Tribunal allowed the claim petition in part and awarded a total compensation of Rs.12,21,000/- under following heads:- Rs. 1.Towards injury, pain and sufferings And shock 75,000-00 2.Towards Medical expenditure 2,70,000-00 3.Towards attendant, Travelling Expenses, food and other incidental Charges 20,000-00 4.Towards loss of income/loss of Earning capacity 8,16,000-00 5.Towards frustration, unhappiness And loss of marriage prospectus 30,000-00 6.Towards damage of motorcycle 10,000-00 Total 12,21,000-00 Claimant not being satisfied with the quantum of compensation awarded by the Tribunal has filed MFA.No.7119/08 and insurer being aggrieved by the 7 quantum of compensation and assailing the same as being excessive has filed appeal MFA.No.7006/08. Hence, these two appeals are taken up together for consideration. I have heard the arguments of learned advocates appearing for parties and perused the records received from the Tribunal. 4. Tribunal while evaluating evidence has found that medical bills produced by claimants which were collectively marked as Ex.P.42 and sub-numbered as 1 to 204 cannot be believed in its entirety. The reason assigned by the Tribunal to discard some of the bills is that claimant who had examined Sri.M. Govardhan Rao as P.W.2 Public Relation Officer representing the City Hospital, Mysore where the claimant had been admitted and had taken treatment and was surgically operated upon to establish the fact that medical bills produced by the claimant had infact been issued by the City hospital, had not taken print of those bills personally and also on 8 the ground that he had stated that he does not know who had signed Ex.P43 namely certificate issued by the Hospital reflecting break up of fee charged by different Doctors who had treated the claimant at said Hospital. On this ground Tribunal has disbelieved some of the bills. However, there is no discussion as to which of the bills have to be disallowed. A perusal of the award would indicate that bills at Sl.Nos.147 to 169 of Ex.P42 seems to have been disallowed for the above said reason. These reasons suffer from patent fallacy. Public Relation Officer cannot be expected to know as to who had taken the print out of bills or who has signed those bills. The bills produced are all computer generated bills as could be seen from the Tribunal’s records. The sum total of the bills has been reflected in Ex.P42 namely the amount paid to each of the doctors. After giving set of to the discount given by doctor, total figure has been arrived at in Ex.P42 which cannot be found fault with or doubted. Hence, I am of considered view that Tribunal a committed serious error in 9 ignoring this aspect and rejecting the claim of the claimant towards award of compensation in respect of medical bills in its entirety. The sum total of the medical bills produced by the claimant is to the tune of Rs.3,12,426/-. Undisputedly, claimant was hospitalized for more than six months. By no stretch of imagination it can be considered that these bills are either exorbitant or excessive or is not commensurate with the treatment obtained by the claimant. Hence, amount claimed by the claimant towards medical expenses in toto deserves to be allowed and accordingly it is allowed. 5. The evidence of doctor A. Diwakara Rao,P.W.3 Neuro surgeon would indicate that claimant was unconscious for more than one month due to head injuries sustained and on the date he was admitted to the hospital on an emergency basis he was subjected to craniotomy under general anesthesia and evacuvation of the hematomo which involved surgical process. 10 6. P.W.7-Dr. Sudhakar Shetty, Orthopaedic surgeon has stated that claimant had sustained fracture of distal radius with dislocation of the left wrist joint; fracture of left femur and fracture of right tibia and fibula and multiple lacerated wounds. At the time of evaluation for disability on 27.11.2006, P.W.7, doctor has found that all the fractures are united. He has opined that whole body disability to the claimant to be at 60%. However, the Tribunal vide paragraph 14 has jumped to a conclusion that from the nature of disability suffered by the claimant he would not be able to do his normal and routine work and he needs an assistant and as such it has construed the disability to whole body to be at 100%. This is an erroneous finding. The doctor who has been examined has clearly stated that all the fractures sustained by the claimant are united. No surgery for fixing of fractures had been carried out. The claimant had been treated conservatively. Even the photographs produced by the claimant before the Tribunal would also indicate that 11 claimant would be able to carry out his normal duties though not in the same pace. In other words, on account of above referred injuries sustained and consequential disability suffered earning capacity of the claimant would reduce to an extent of 60%. Hence, I am of the considered view that Tribunal committed a serious error in construing the whole body disability at 100% and same ought to have been considered at 60%.