Harisha D. vs Naveen Kumar V. and Others

G. Narendra, J.

The above appeal is filed by the claimant/appellant being aggrieved by the judgment and award dt.19.4.2013 passed by the Tribunal in MVC No. 3861/2011.

To sum up the facts it is as follows:--

"That on 5.4.2011 at about 5.00 p.m when the appellant was walking on the mud portion along the Bangalore Kanakapura highway and when he was nearing Mahalakshmi Steel Corporation Shop in Thalagattapura, the first respondent driving his bike rashly and negligently dashed against the appellant resulting in grievous injury to him."

It was contended on behalf of the appellant before the court below that he was working as a Machine Operator with one M/s. Image Pvt. Ltd. situated in Thalagattapura, drawing a salary of Rs. 4,000/- p.m. and he had produced the pay slip-Ex. P8 in proof of the same and that due to the accident, he has suffered permanent residual physical disability, as a result of which his earning prospects and future prospects have been drastically reduced. It was also contended that he had to incur huge expenses towards treatment and in the light of the above facts, he had claimed a compensation of Rs. 20,00,000/-. The injuries suffered by him are to the head (right temporal region), fracture of the mandible etc. He had claimed that he had to undergo surgical procedures and general anesthesia for the head injury suffered by him and also for the fixation of the mandible. That he was an inpatient from 5.4.2011 to 13.4.2011 and thereafter advised to take treatment as an OPD patient. In support of the same the appellant has produced Exhibit-P7 which is the discharge summary. Ex. P9 and Ex. P10 are the certified medical bills and medical prescriptions respectively. Ex. P11 and Ex. P13 are X-Ray film evidencing the injuries suffered by him. Ex. P12 is the inpatient record.

In spite of service of notice to the first respondent i.e. the owner-cum-rider of the motor cycle, he chose to remain absent and was placed ex-parte. Second respondent-insurer had entered appearance and filed its objections in the standard format. The objection is in the nature of total denial of the accident. The objections are self contradictory. In one breath it is asserted that the insured motor cycle was not involved in the alleged accident and thereafter it is alternatively prayed that the motor cycle rider was riding slowly observing traffic rules and the accident occurred on account of the negligence of the appellant and as such the appellant is not entitled for any compensation. On the strength of the averments the court below framed three issues which are as follows:--

"1. Whether the petitioner proves that he has sustained grievous injuries as mentioned in Wound certificate, in a road traffic accident on 5.4.2011 at about 5:30 p.m., on Bangalore Kanakapura road, in front of Mahalkshmi steel corporation, Thalaghattapura, Uttarahalli Hobli, Bangalore South Taluk, Bangalore, due to the rash and negligent riding of the rider of the Hero Honda splendor bearing No. KA-42-j-8576?

Whether petitioner is entitled for any compensation? If so to what extent and from whom?

What Order or Award?"

After consideration the court was pleased to affirm the first issue in totality. The court was further pleased to partly affirm the second issue.

The victim-appellant examined himself as PW1. The second respondent contended that there is a delay of 7 days in lodging the complaint. The court below has come to the conclusion that the delay cannot be put against the appellant in view of the fact that immediately after the accident, the appellant was hospitalized and continued to remain as an inpatient upto 13.4.2011 and the hospital records reveal that he was admitted with the history of road traffic accident and has been registered as a medico legal case and that the police have registered the case after receipt of the Medico legal case. In view of the above the court below has been pleased to condone the delay and it was held against the respondents. The court has also inferred adversely against the respondents as the first respondent, who is accused of causing the accident, has failed to remain silent and has neither stepped into the box nor has the second respondent ensured regarding the first respondent stepping into the box to depose as to the facts of the accident. In view of the above the court below has been pleased to render a finding that the first respondent and the vehicle named therein had caused the accident and that apart from mere statements in the objections, the insurer has not examined any witness to disprove or rebut the claim of the appellant.

The next point for consideration is, there is sufficiency or as to whether the compensation awarded is commensurate with the injuries suffered by the appellant and the consequences of the injuries. It is an undisputed fact and as per the finding by the court below that the appellant suffered a fracture of the right temporal bone and fracture of the mandible symphysis and fracture of C-3 vertebral lamina (i.e. injury to the spinal cord). The injuries described above are undoubtedly grievous injuries and are accordingly certified as per Ex. P6-wound certificate. The doctor who treated the appellant is also examined as PW2 and no worthwhile material is elicited in the cross examination to disbelieve his evidence.

The discharge summary is marked as Ex. P7 and the final diagnosis as per discharge summary is that the appellant had suffered a head injury with the fracture of mandible and right temporal bone and that he was hospitalized between 5.4.2011 and 13.4.2011 and he was discharged with advice to review on OPD days. It is the claim of the appellant that he is a Machine Operator aged 25 years and he has also deposed regarding the details of his employer and the salary being paid by his employer. In corroboration of his claim, he has also produced and marked Ex. P8 being his salary slip for the month of September 2009 which evidences the fact that he is paid Rs. 6,000/- per month.

In the above facts and circumstances, the issue that falls for consideration before this Court is, as to

"Whether the Tribunal was right in holding that the income of the appellant was only Rs. 4,000/- per month and whether the amounts granted under various heads are commensurate with the injuries suffered and can be termed as just compensation"?

The counsel for the appellant submits that the Tribunal has committed a basic error in taking upon itself the task of assessing the income of the appellant and he submits that the same is erroneous in the light of Ex. P8- pay slip produced by the appellant issued by his employer. He would further submit it is not even the case of the second respondent/insurer that the appellant was not earning the said amount nor have they seriously disputed the veracity and authenticity of Ex. P8. That being the case the court below ought to have taken the sum disclosed in Ex. P8 as the actual salary. He would also submit and assert that the sum of Rs. 6,000/- per month which is certified as the salary under ExP.8 is not an inflated or exaggerated amount and cannot be termed as one. He further submits that it is commensurate with the educational qualifications and the work that is being discharged by the appellant and hence the conclusion of the court below that the appellant is earning only Rs. 4,000/- per month is seriously disputed. On an appraisal of the material on record, we are constrained to concur with the submissions of the appellant. It is not for the court to embark upon an enquiry with regard to the veracity or authenticity of any documents or its contents unless and until the court prima facie feels and doubts any authenticity or veracity of the document produced or given in evidence before it and the exhibits should not be disregarded or disbelieved as a matter of course. It is not the case made out by the trial Court that Ex. P8 has been seriously disputed by the respondents or that there is any material available which contradicts the contents of Ex. P8 and hence we are setting aside the finding of the Trial Court with regard to the salary of the appellant and the salary of the appellant is determined as Rs. 6,000/- per month in terms of Ex. P8. The finding of the court below that Ex. P8 has to be disbelieved, because of the omission on the part of the appellant to examine the employer, is incorrect unless and until the same is seriously disputed by the respondents or by the other side. It would be unnecessary for a party to bring in witnesses to corroborate the facts which are not seriously disputed and facts which, on the face of it, appear to be probable and believable because all such exercise involves not merely expending of resources but also impinges on the invaluable time of the court as consistently held by the Hon''ble Apex Court and this Court that denial must be specific and there being specific denial or evidence to the contrary, the court below erred in rejecting or eschewing Ex. P8 while assessing the income of the appellant. In view of the above discussion, we conclude that the monthly income of the appellant is to be taken as Rs. 6,000/- in accordance with the salary slip Ex. P8.

The appellant''s counsel takes us through the next issue of the sufficiency of the compensation awarded under various heads. He would submit that the amounts awarded are just nominal, farcical and too meager to be judged as just compensation. It is submitted that the court having concluded that the appellant had suffered a head injury with fracture of mandible and right temporal bone, the court was unjustified in granting Rs. 25,000/- under the head of pain and suffering. It has not at all considered the grievous and life threatening injuries suffered by the appellant. He would also submit that it is an undisputed fact that a person who suffers an head injury will always be very restricted and it would be in the nature of a handicap to the person to the rest of his life and he further submits that the pain and suffering is immense and that it has not been properly assessed.

He would further state that the court erred in not awarding compensation towards loss of future earning capacity. In this regard, he would point out that the Court had disregard the evidence of the doctor that surgery is required in future and this reflects total non application of mind to the facts and circumstances of the case. He would further state that this finding is self contradictory in view of the fact that subsequently the court below had admitted and accepted the loss of happiness and future amenities caused to the appellant based on permanent disability. It is true that under the heading ''loss of happiness and future amenity'' the court has relied upon the disability suffered by the appellant to grant him a sum of Rs. 25,000/- for which it has relied upon Ex. P13 which is a recent X ray.

He would also submit that the court below erred in not considering the claim put forth through the counsel of the appellant that the accident has caused severe discomfort, frustration and depression to the appellant.

He would further submit that claim for medical expenses has been rejected without assigning any reasons. It is not even the case of the respondents that the medicines prescribed are not required for the treatment of the injuries suffered by the appellant and hence ought to have granted the entire amount claimed (Rs. 3,00,000/-) which are supported by the bills and prescriptions.

Further, the amount awarded under the head future medical expenses is too meager and contrary to evidence of the doctor who is an expert witness and who is the right person to adduce evidence.

Having given our anxious consideration to the contentions put forth by the counsel for the appellant and on perusal of the material on record, we are of the opinion that the contentions of the appellant merits consideration and the sum awarded by the court below requires modification, as stated supra and the break-up of the compensation awarded by the Tribunal with the corresponding enhancement in the compensation under those heads and also the compensation not awarded by the Tribunal are as follows:--

Having regard to the facts and circumstances, as stated above, we pass the following:--

ORDER

"i) The appeal is allowed in part;

ii) The impugned Judgment and Award dated: 19.04.2013 passed in M.V.C. No. 3861/2011 on the file of the XII Additional Small Causes Judge and Member, Motor Accident Claims Tribunal, Bangalore, is hereby modified awarding additional compensation of Rs. 1,29,680/- with interest at 9% p.a. from the date of petition till realization.

iii) The second respondent/insurer is directed to deposit the enhanced compensation of Rs. 1,29,680/- with interest at 9% p.a. from the date of petition till realization, within a period of three weeks from the date of receipt of the certified copy of this judgment;

iv) The enhanced compensation with interest shall be released in favour of the appellant, immediately after deposit."

Office to draw the award accordingly.