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Judgment
A.V. Chandrashekara, J.—Both these appeals have arisen out of the judgment and decree dated 7.5.2009 passed by the learned Judge of MACT, Chitradurga in MVC 430/2007. MFA 5595/2009 has been filed by the insurer, who is respondent No. 2 in the claim petition and MFA 1047/2010 has been filed by the claimant.
The main grievance of the insurer is that the learned Judge has not properly analyzed the oral and documentary evidence in regard to the cause of accident. It is the further grievance of the insurer that the Tribunal has awarded compensation in excess of just and reasonable compensation.
Per contra the grievance of the learned counsel for the claimant is that compensation so awarded is grossly inadequate qua the injuries sustained by the claimant.
Respondent No. 1 in MVC 430/2007 is K.M. Rangaswamy., owner of the vehicle bearing KA-16-A-829 and respondent No. 2 in the claim petition is the insurer of the said vehicle.
Since both these appeals have arisen out of judgment and decree passed in MVC 430/2007, they are taken up together for final disposal. Parties will be referred to as claimant and respondent Nos. 1 and 2 as per their ranking before the Tribunal.
The facts leading to filing of the claim petition are as follows:
"On 21.1.2007 at about 7.30 p.m. when the claimant Rangaswamy @ Rangappa was walking near Raghavendra Kalyana Mantap at NH-13 Road Holalkere, a pickup van bearing No. KA-16-A-829, being driven in a rash and negligent manner by its driver, dashed against him and as a result of which he sustained severe injuries. He was immediately shifted to Chigateri Hospital, Davanagere where he was treated as inpatient. According to him, the accident took place solely due to negligence of the pickup van. He is stated to have spent sufficient amount towards treatment and he is suffering from disability which has come in the way of his future earning." 7. Respondent No. 1 has chosen to file a detailed written statement denying all the material averments. Claimant has been called upon to prove the occurrence of accident, injuries sustained by him in the accident and the effect thereof on his future earning capacity. According to him, vehicle in question was driven by Shivaprakash @ Shivaprasad and he had valid and effective driving licence as on the date of accident. According to him, vehicle in question was insured as on the date of accident and hence, insurer is liable to indemnify the claimant.
Insurer has also filed detailed written statement denying all the material averments relating to cause of accident, injuries sustained by the claimant and amount spent under various heads and disability suffered in so far as it relates to future earning capacity. According to him, driver was not having valid and effective driving licence as on the date of accident and as a result, insurer is not liable to indemnify the claimant. The insurer has called upon the claimant to prove the injuries sustained by him, income he was getting per month and physical disability which has come in the way of his future earning capacity.
On the basis of the pleadings of the parties, the Tribunal has framed following issues on 23.8.2008:
"a) Whether the petitioner proves that he sustained injuries in a motor vehicle accident on 22.1.07 at about 7.30 p.m. near Holalkere town Sri. Raghavendra Kalyanan mantapa, NH-13 road involving vehicle bearing KA-16-A-829 belonging to respondent No. 1 and insured with respondent No. 2?
b) Whether the petitioner proves that the accident has mainly occurred due to rash and negligent driving of said vehicle?
c) Whether the petitioner is entitled for compensation? If so what is the quantum and from whom?"
The claimant is examined as PW-1, Dr. D.M. Nagabhusan an orthopedic surgeon working in Navodaya Hospital has been examined as PW-2. 44 documents have been produced and marked as Ex. P-1 to 44 on behalf of the claimant. On behalf of the respondent Nos. 1 and 2, M. Suryaprakash, Administrative Officer of the insurance company has been examined as RW-1 and respondent No. 1 owner of the vehicle is examined as RW-2. 6 documents have been produced and marked as Ex. R-1 to 6 on behalf of the respondents.
Ultimately, the Tribunal has allowed the claim petition by answering issues 1 and 2 in the affirmative and has awarded total compensation of Rs. 2,19,976/- under different heads as found in page 8 of the judgment of the Tribunal and same is as follows:
What is contended by the learned counsel for the insurer is that the Tribunal has not properly analyzed the oral and documentary evidence in right perspective. It is argued that the accident in question took place not because of the vehicle in question dashing against the claimant but he sustained the injuries being an inmate of pickup van. In Ex. P-5 wound certificate, there is a specific reference to the effect that goods auto got upside down and therefore, the Tribunal should have taken this into consideration. It is further argued that inordinate delay in filing FIR before the jurisdictional police has been totally ignored by the Tribunal. It is argued that the Tribunal has attached undue importance to the investigation conducted by the police and charge sheet filed by them. It is argued that the learned Judge of the Tribunal has not properly analysed the evidence on the basis broad preponderance of probabilities. It is further argued that the compensation awarded under different heads is excessive and a sum of Rs. 1,29,600/- could not have been awarded under the head ''loss of amenities''. It is further argued that Rs. 33,250/- awarded under the head ''loss of income during laid up period'' is excessive. Hence, it is requested to reduce the compensation subsequently.
Per contra, the learned counsel for the claimant has contended that the Tribunal has not assessed the oral and documentary evidence in right perspective insofar it relates to assessing of compensation under different heads. It has not awarded any amount towards incidental expenses such as conveyance and nourishment charges. It is argued that no amount is awarded towards ''future loss of income'' because of disability suffered by him and ''future medical expenses'' relating to removal of implants. Hence, he has requested the Court to enhance the compensation to Rs. 5,00,000/-
After hearing the learned counsel for the parties, following points arises for consideration:
"a) Whether the insurer is justified in taking up the ground before this Court that the Tribunal has not analysed the oral and documentary evidence in right perspective. Insofar as it relates to cause of accident?
b) Whether the compensation so awarded by the Tribunal is just and reasonable within the purview of Section 166 and 168 of MV Act.
c) Whether any interference is called for, if so to what extent?"
Point No. 1 :The case of the claimant is that himself and Chandrappa were walking by the side of the road at about 7.30 p.m. on 22.1.2007 and that when they reached the place near Raghavendra Kalyana Mantapa, a pickup van bearing No. KA-16-A-829 came from behind and dashed against him. As a result of the same he fell down and sustained injuries. According to him, vehicle in question was driven in a rash and negligent manner and he has attributed negligence to the driver of the said vehicle.
The learned counsel for the insurer has argued that the evidence placed on record clearly indicates about the claimant having sustained injuries being inmate in the van and that aspect of the matter has been virtually ignored by the Tribunal. Whether the insurer has taken up such a plea in the written statement and whether insurer can raise such an issue before this Court for the first time is the question. Perused the claim petition as well as objections filed by respondent Nos. 1 and 2. In the examination-in-chief, claimant has virtually reiterated the contents of the claim petition filed under Section 166 of MV Act.
Respondent No. 1, the owner of the vehicle in question has denied all the material averments and has called upon the claimant to prove the contents of the claim petition. According to him, vehicle in question had been driven by Shivaprakash @ Shivaprasad and the vehicle was insured as on the date of accident and therefore, the insurer is liable to indemnify the claimant.
On going through the entire contents of the written objections filed by respondent No. 2 before the Tribunal, it is evident that there is no averment in regard to allegation that the claimant was traveling in the van bearing KA-16-A-829 and it met with an accident and therefore, he fell down and sustained injuries. Contents of the claim petition has been specifically denied by the insurer and claimant has been called upon to prove the contents of the same. Validity of the insurance as on the date of accident relating to vehicle in question is not disputed. An attempt is made to take up a ground in this appeal for the first time about the claimant traveling in the said vehicle as an inmate and sustaining injures as it got upside down. On going through the contents of the tenor of the cross examination of PW-2 by the insurer, the insurer wants to avoid the liability on the ground that vehicle did not hit the claimant as alleged by him but he sustained the injuries being an inmate of the vehicle in question. What is sought to be argued before this Court is that vehicle in question was a goods auto and the driver of the said auto was not expected to carry any passengers except the goods. Therefore, it is argued that it is nothing but violation of the conditions of the policy issued by it.
A Division Bench of this Court in the case of Ramakrishna Reddy Vs. The Manager, Purchase, Hindustan Machine Tools Limited and Another, has specifically held that new pleas cannot be raised in the appeal for the first time as the liberty of filing such a case is lost to the claimant. It is further reiterated that the written statement should contain all other contents with regard to the pleas. In the present case, the written statement filed by the insurer is silent about the allegations that the claimant was traveling in the said goods auto rickshaw and he sustained injuries because it got upside down near Raghavendra Kalyana Mantapa. Such a plea is taken up for the first time in this appeal. Though an attempt is made to cross examine PW1 in this regard, nothing useful has been culled out from his mouth to support the stand of the insurer. Apart from this, the first respondent who is the owner of the vehicle in question has field the written statement denying all the material averments. He has been examined as RW2. He has specifically deposed that driver to whom the vehicle was handed over was negligent. He had a valid license and his name is Shivaprasad /Shivaprakash. Even during the course of cross examination of RW2 - owner of the vehicle, the counsel for the insurer has not been able to culled out anything from his mouth to support the stand of the insurer.
What is argued before this Court by the learned counsel for the insurer is that Ex. R2 is the wound certificate issued by the Government Hospital, Davanagere and there is a specific mention about the cause of accident. It is mentioned as "upside down". The words ''hit by'' has been even struck off. Therefore, it is argued that in the very wound certificate, the cause of accident is shown as vehicle having become upside down. Name of one Devaraj is found as the person accompanying the injured to Government Hospital, Davanagere. We do not know as to who is this Devaraj and his name does not find a place in the copy of the charge sheet filed by the police. Name of one Chandrappa brother of PW1 is found as an eye witness to the incident in question. What was the basis for incorporating the words upside down in the medico legal register is not forthcoming.
Admittedly, PW1 had sustained severe injuries and the same is evident from the wound certificate marked as Ex. P5. He had pain and swelling in the left thigh. He had sustained crush injury of left foot dorsal aspect 4x6 cms. Apart from this contusion on the back 10 x 10 cm. 10 cm inter scaffold region. He had sustained a cut lacerated wound over the right thigh measuring 3 x 4 cm. Two x-rays taken out in the hospital disclose fracture of riddle lower 3rd left femur and fracture base of proximal 4th little toe and left foot. As per Ex. P5 there is a reference about the cause of accident. It is mentioned as follows:
"H/ORTA auto upside down near Holalkere at 7.30 pm on 22.01.2007." 22. As already discussed we do not know as to who gave this information to the doctor. One Devaraj is found as a person who had accompanied the injured. As already discussed this Devaraj is not an eye witness to the accident in question. Police had conducted a thorough investigation and they had chosen to file final report and Ex. P6 is the copy of the final report. What is argued before this Court is that there was an inordinate delay in filing this appeal. The accident in question had took place on 22.01.2007, but this was reported to the jurisdictional police on 03.02.2007. Ex. P1 is the copy of the FIR based on the first information lodged by one Chandrappa, brother of the claimant. Ex. P2 is the spot mahazar drawn on 03.02.2007 and the vehicle was seized and was subjected to motor vehicle inspection on 09.02.2007 which is evident from Ex. P7 IMV report.
One cannot forget that claimant has sustained severe injuries because of the accident. He had been admitted to Government hospital. It was the Duty doctor of the concerned hospital to have informed the police about the inpatient having sustained injuries involved in the motor vehicle accident. His brother chose to file a complaint since no intimation had been given by the doctor. One cannot attribute any malafides to the police investigation. Admittedly, RW2 owner of the vehicle has specifically deposed that the driver had confessed before Magistrate Court and had paid the fine amount.
The insurance company has neither taken up a plea in regard to the cause of accident in the written statement nor insisted the MACT to frame a specific issue regarding the exact cause of the accident. PW-1 has specifically denied all the suggestion put to him As already discussed, nothing useful has been culled out from his mouth to probabalize the defence of the insurer. Thus, the learned judge of MACT has come to a specific conclusion that the accident was due to the sole negligence of the driver of the vehicle. No infirmity or perversity is found in the entire material placed on record. Hence, Point No. 1 is held in the affirmative.
Point No. 2: Claimant had been admitted in Chigateri District Hospital at Davanagere on 23.01.2007 and was discharged on 23.02.2007. In all he was inpatient for 30 days in the said hospital. A sum of Rs. 49,000/- is awarded under the head pain and agony. He had sustained riddle lower 3rd left femur and fracture base of proximal 4th little toe and left foot. Apart from this he had sustained three more injuries. These are evidence from Ex. P5. Accident is of the year 2007. Infact a sum of Rs. 49,000/- awarded under the head ''Pain and Suffering '' is on the higher side. Awarding a sum of Rs. 40,000/- under the head of ''pain and sufferings'' would meet the ends of justice.
A sum of Rs. 2,000/- is awarded under the head nourishment and rest and a sum of Rs. 2,000/- is awarded under the head miscellaneous expenditure. Since, he was inpatient for 30 days, awarding a sum of Rs. 9,000/- as incidental charges covering nourishment and attendant charges and conveyance would meet the ends of justice.
A sum of Rs. 1,29,600/- is awarded under the head loss of amenities. It is un-understandable as to how the learned judge has chosen to calculate this amount. Awarding a sum of Rs. 35,000/- under the head incidental charges would meet the ends of justice.
No amount is awarded under the head loss of income during the laid up period. Admittedly, he had suffered fracture of left leg. It could be definitely said that he was not able to move about freely for atleast 6 months because of fracture of femur. Even if his income is assessed at Rs. 3,000/- per month, awarding a sum of Rs. 18,000/- under the head loss of income would be just and proper. Rs. 4,126/- is awarded under medical expenses. Even though he was admitted in Government hospital, all the medicines would not be available in the Government Hospital and as such, many medicines had to be got purchased from out side. Therefore, awarding a sum of Rs. 8,000/- towards medical charges for a period of 30 days would meet the ends of justice.
Oral reduction had been done with internal fixation. Therefore, implants fixation will have to be removed by effecting another surgery. Therefore, awarding a sum of Rs. 10,000/- towards future medical expenses would meet the ends of justice.
Doctor has assessed the disability of the left lower limb at 48%. The percentage of disability of the body as a whole would be 15%. Monthly loss of income would be Rs. 450/- and annual loss of income would be Rs. 5,400/-. Since the age of the claimant is 30 years, the proper multiplier would be ''16''. A sum of Rs. 86,400/- would be just and reasonable to be awarded under the head ''loss of future income''.
Thus, the claimant would be entitled for a total compensation under different heads as follows:--
The learned judge has awarded in all a sum of Rs. 2,19,976/- as total compensation. Even on re-assessment to the entire compensation, the amount of compensation by the MACT so awarded is otherwise just and proper though the amount awarded under different heads by the MACT is incorrect and improper. Taking into consideration the totality of the case, the difference in the amount awarded is marginal and therefore does not warrant any interference.
Learned Judge has awarded interest at rate of 6% per annum from the date of filing the petition till the date of realization. This does not require any interference. Even after reassessment of the entire amount of compensation, the award is otherwise just and proper and does not require any interference. Hence, point No. 2 is answered in the affirmative.
Point No. 3: In view of the findings recorded under point Nos. 1 and 2, no interference is called for and both the appeals are to be dismissed directing both the parties to bear their respective costs.
ORDER
i) Both the appeals are dismissed.
ii) Parties to bear their own costs.