Ayyanagouda vs Nagappa

A.S. Pachhapure, J.—While, MFA Nos. 32252/2011 and 32253/2011 have been filed challenging the liability to pay compensation for the injuries sustained by the injured, the other two appeals have been filed by the aforesaid injured seeking enhancement of compensation.

As all these matters arise out of the same accident and common judgment and award, they are taken together for consideration.

The facts relevant for the purpose of these appeals are as under;

On 18.07.2008 Chidanand the appellant in MFA No. 30272/2011 was the pillion rider on the motorcycle bearing No. KA-28/R-98534 and his friend Praveen was riding this motorcycle. At about 09.30 p.m. near Hanchanal Pata on Bijapur road, Praveen rode the motorcycle in a rash and negligent manner and hit Ayyangouda, the appellant in MFA No. 30173/2011. Due to fall of the motorcycle Chidanand sustained injuries, whereas Ayyangouda sustained injuries due to the hitting of the motorcycle. They have sustained grievous injuries. They were treated in the hospital and suffered disability. Therefore, they have made a claim for compensation in MVC No. 1318/2008 and 1319/2008 before the Tribunal. Both the cases were clubbed. Respondent No. 1 has placed Ex. parte and on appearance, the insurer contested the matter and filed objections denying the occurrence of the accident and the liability to pay the compensation and also quantum of compensation claimed as highly exorbitant and arbitrary. The claimants were examined as PW 1 and 2 and the doctor examined as PW 3. In their evidence Ex. P-1 to P-19 were marked. On behalf of insurer Ex. R-1 and R-2 were marked.

The Tribunal after hearing the counsel and appreciating the evidence on record, held the rider negligent and responsible for the accident and granted a sum of Rs. 96,399/- as compensation in MVC No. 1318/2008, whereas a sum of Rs. 95,430/- is awarded in MVC No. 1319/2008 with interest at 6% per annum. The injured have filed MFA No. 30173/2011 and MFA No. 30272/2011, whereas the insurer have filed the other two appeals challenging the liability.

With the consent of both the counsel, these matters are taken up for final disposal.

I have heard learned counsel for both parties. The points that arise for my consideration are:

(1) Whether the injured prove that there was an accident on 18.07.2008 at 09.30 p.m. due to rash and negligent riding of the motorcycle bearing No. KA-28/R-9853 and whether the insurer is liable to indemnify the owner of the vehicle?

(2) Whether the injured are entitled to enhanced the compensation? If so, to what extent?

Learned counsel for the insurer submits that there is inordinate delay in lodging the first information and that there is false implication of the motorcycle and the accident had not occurred at all due to the use of the vehicle in question. He submits that the records produced clearly indicate that no such accident occurred on the said date and place and false claim has been made by the injured for compensation and that the Tribunal has not looked into these aspects while considering the request of the injured. It is therefore, he submits to set aside the impugned judgment and award.

On the other hand the learned counsel for the injured supports the judgment and award and submits that the Tribunal has rightly held the accident having been proved and committed an error in granting meager compensation.

Both the learned counsels have taken me to the evidence and the documents produced by them before the Tribunal.

As the insurer has challenged the very occurrence of the accident, it is necessary to look into the material placed on record by the parties to prove the occurrence of the accident. It is relevant to note that both the injured are the eyewitnesses, while Chidanand was the pillion rider, Ayyangouda was the third party who was standing by the side of the road and motorcycle hit him. As per the claimants the accident occurred on 18.07.2008 at about 09.30 p.m. on Bijapur-Indi road. This motorcycle which was used in the occurrence of the accident was owned by Nagappa Chittawadgi who is the 1st respondent in both the claim petitions. He is a teacher by profession.

The complaint was filed "by" him on 28.07.2008. The sub and substance of the complaint reveals that on 18.07.2008 he came to Bijapur on the motorcycle and as he had some work he was intending to go back to his native place by bus and therefore, he entrusted the vehicle to his student by name Praveen who is said to be the rider of the motorcycle. In the said night at 10.30 said Praveen called him on phone and told about the accident. Immediately the owner of the vehicle went and as the injured was brought to the Government hospital at Bijapur for the purpose of treatment, he saw them in the hospital having sustained injuries and when enquired with the injured Ayyanagouda he informed about the manner of the accident. As their condition was serious, they were taken to hospital at Solapur and were admitted in Yashodhara hospital and it is thereafter he returned to Bijapur, went to the place of accident and on enquiry with hotel owner came to know about the accident and therefore, he approached the police and submitted his complaint on 28.07.2008.

In fact there is delay of 10 days in filing this complaint. As could be seen from the contents of the said complaint there appears to be genuine and natural reasons for the delay. He was bound to consider the injured those who were hit by his own motorcycle. There were injuries in the accident, it is for this reason instead of approaching the police he said to have gone to the hospital to know the fate of the injured. Having found that their condition was not well, he took them to Solapur hospital and admitted them in the hospital. Taking into consideration the cause put forth in the complaint for the delay, I am of the opinion that there appears to be no false implication of the vehicle at the instance of the injured.

That apart the vehicle was inspected by the Motor Vehicle Inspector on 06.08.2008 and he found headlight damaged, steering bent and crash guard bent and there were substantial damages to the vehicle. The contents of the Motor Vehicle Inspector report Ex. P-4 also supports the contention of the injured.

After filing of the charge-sheet in CC No. 1933/2008 it came to be registered and Praveen, the rider of the motorcycle student of the complainant/owner of the vehicle pleaded guilty and he was ordered to pay the fine. The certified copy of plea of guilty has been produced at Ex. P-5. In addition to the aforesaid documents, there is oral evidence of both the injured PW 1 and 2 and there is nothing to disbelieve the version of the claimant so far as occurrence of the accident and the rash and negligent riding.

On the basis of reference in the case-sheet of Ayyangouda relating to treatment at District hospital, Bijapur, a request was made to review of this order after disposal of the claim petition in Miscellaneous Nos. 18 and 19 of 2011. An effort was made by the insurer after disposal of the claim petition to secure case-sheet and in pursuance of the request made the document was produced before the Tribunal. Perusal of the case-sheet which is not admitted in the evidence reveals an observation made in the case-sheet that there was collusion between the motorcycle and the tractor. On the basis of this reference in the case-sheet it is contended before this Court that the motorcycle has been falsely implicated and delay in first information is only to concoct a false case. Anyhow this document cannot be considered by this Court for any reason as same are produced subsequently to disposal of the claim petition. It has not been admitted in the evidence. Further more, it is relevant to note that the insurer has filed these appeals and a review petition cannot be maintained. Though the order passed in Miscellaneous Nos. 18 and 19 of 2011 has been challenged in view of the fact that two relief cannot be claimed in one appeal, and further that review petition itself is not maintainable as there is an appeal against the award. I do not find it proper to consider either the documents produced or the order passed on the review application.

In the aforesaid circumstances I am of the opinion that the Tribunal was justified in holding that there was an accident due to rash and negligent riding of the motorcycle and that apart there is no material placed on record by the insurer to disbelieve the version of the claimants.

MFA No. 30272/2011 (MVC No. 1318/2008)

The injury certificate of the appellant is produced at Ex. P-13. He suffered fracture of right zygomatic bone and injury to right eye. A sum of Rs. 15,000/- has been granted towards pain, suffering and mental agony. As the appellant has suffered fracture injury as well eye, it is just and proper to grant additional sum of Rs. 5,000/- on this head. On the basis of medical bills produced Rs. 10,000/- is granted towards medical expenses, attendant charges and special diet. There are no reasons to increase: the compensation awarded on these heads. The injured was a student and it is stated that he was also doing agriculture. Anyhow there is no such evidence worth acceptance. Even for a labourer the income in respect of the accident of the year 2008, the income is considered Rs. 4,500/- per month. As the appellant has suffered fracture, it needs minimum three months to resume to the duties. Considering this aspect it is proper to grant a sum of Rs. 13,500/- towards loss of income during the period of treatment. Deducting a sum of Rs. 1,500/- granted by the Tribunal, the appellant is entitled to additional sum of Rs. 12,000/- under this head.

The injured was examined by PW 3 the doctor who assessed the disability. PW 3 is a General Surgeon who has examined to assess the disability. He is not the treated doctor. That apart to observe deficiency in the vision it is necessary to get him examined by a specialist. Further more, there is fracture of the right zygomatic bone. The doctor has said disability at 60% pertaining to neurological. Though he not neurologist and he assessed 30 to 45% disability to the whole body, in addition to loss of vision. That he is not an expert, the Tribunal has assessed the disability at 10%. It had an opportunity to observe the appellant. Therefore, I do not find any grounds to increase the disability that has been assessed by the Tribunal.

For the income of Rs. 4,500/-, applying multiplier of 18 as the appellant was aged 23 years, with the disability at 10%, the net compensation payable would be Rs. 4,500/- x 12 x 18 x 10% = Rs. 97,200/-. Deducting sum of Rs. 64,800/- the injured is entitled to Rs. 32,400/-.

A sum of Rs. 5,000/- has been granted towards loss of amenities. In view of disability at 10%, it is enhanced to Rs. 5,000/- as the compensation awarded. As the appellant was inpatient in the hospital at Solapur for 13 days it is just and proper to grant Rs. 5,000/- towards transportation and conveyance etc. Therefore, the appellant is entitled to additional compensation of Rs. 59,400/- with reasonable rate of interest.

MFA No. 30173/2011 (MVC No. 1319/2008)

The injured appellant has suffered fracture of frontal bone. A sum of Rs. 10,000/- has been granted towards pain, suffering and mental agony. It is just and proper to grant additional sum of Rs. 10,000/- on this head. So far as the medical expenses are concerned they have been granted based on the bills produced. The medical bills are sum of Rs. 24,620/- and further sum of Rs. 8,950/- granted towards medical expenses. Therefore, a sum of Rs. 33,750/- has been granted towards medical expenses. He was in the hospital as inpatient for 12 days, therefore, I think it is just and proper to grant additional sum of Rs. 5,000/- towards food, nourishment, conveyance, attendant charges. The appellant injured is said to be a student and agriculturist. Even for a labourer the income in respect of the accident of the year 2008, the income is considered Rs. 4,500/- per month. As the appellant has suffered fracture of frontal bone, it needs minimum three months to resume to the duties. Considering this aspect it is proper to grant a sum of Rs. 13,500/- towards loss of income during the period of treatment. Deducting a sum of Rs. 1,500/- granted by the Tribunal, the appellant is entitled to additional sum of Rs. 12,000/- under this head.

The injured was examined by PW 3 the doctor who assessed the disability. PW 3 is a General Surgeon who has examined to assess the disability. He is not the treated doctor. That apart to observe deficiency in the brain it is necessary to get examined by a specialist. Further more, there is fracture of the frontal bone. The doctor has said disability at 50% pertaining to neurological. Though he not neurologist and he assessed 22 to 25% disability to the whole body. That he is not an expert, the Tribunal has assessed the disability at 7%. It had an opportunity to observe the appellant. Therefore, I do not find any ground to increase the disability that has been assessed by the Tribunal. For the income of Rs. 4,500/-, applying multiplier of 18 as the appellant was aged 23 years, with the disability at 10%, the net compensation payable would be Rs. 4,500/- x 12 x 18 x 7% = Rs. 68,040/-. Deducting sum of Rs. 45,360/- awarded by the Tribunal under this head, the injured is entitled to Rs. 22,680/-. A sum of Rs. 3,000/- has been granted towards loss of amenities. In view of disability at 7%, it is enhanced by Rs. 4,000/- as against the compensation awarded. Therefore, the appellant is entitled to additional compensation of Rs. 53,600/- with reasonable rate of interest. Therefore, for the aforesaid reasons, point No. 1 is answered in the affirmative and point No. 2 as per the final order.

ORDER

The appeal in MFA 32252/2011 and MFA No. 32253/2011 are dismissed. MFA 30173/2011 and MFA No. 30272/2011 are allowed in part.

In MFA No. 30173/2011 the appellant is entitled to Rs. 59,400/- with interest at the rate of 9% per annum from the date of petition in addition to the compensation awarded by the Tribunal.

In MFA No. 30173/2011 the appellant is entitled to Rs. 53,600/- with interest at the rate of 9% per annum from the date of petition in addition to the compensation awarded by the Tribunal.

The amount in deposit be transmitted to the Tribunal.