Partly allowed

Miss Maitreyi Bhakthavatsal v. the Managing Director

Karnataka HC5 Jul 2023MFA/2450/2014

Case brief

AI extract

What is this about?

In this appeal against a Motor Vehicles Arbitration Award, the High Court found that the Tribunal erred in excluding subsequent medical complications from the accident and incorrectly deducted payments from insurance and employer. The Court enhanced the compensation to cover injury-related expenses, medical bills, disfigurement, and lost life prospects.

What did the court decide?

The award of the Tribunal is modified to award Rs. 10,94,400/- with interest.

Miss Maitreyi Bhakthavatsal Vs the Managing Director — Motor Accident Claims | Karnataka HC (2023)

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- 1 - NC: 2023:KHC:23063-DB MFA No. 2450/2014

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JULY, 2023

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PRESENT

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THE HON'BLE MRS JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO.2450/2014 (MV-I)

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BETWEEN:

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MISS MAITREYI BHAKTHAVATSAL D/O LATE BHAKTHAVATSAL SHYAMRAO, KANNUR, NO.MF, 4/7 D BLOCK, NANDINI LAYOUT BANGALORE – 560 096 …APPELLANT

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(BY SRI MURUGESH V CHARATI, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR BMTC K H ROAD, SHANTHINAGAR BANGALORE – 560 027

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SMT.SAROJA PATIL W/O VISHWANATH PATIL, NO.MF 4/5, D BLOCK, NANDINI LAYOUT, BANGALORE – 560 096

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO., LTD., 6^TH FLOOR, KRISHI BHAVAN BUILDING NRUPATHUNGA ROAD, HUDSON CIRCLE BANGALORE-560001 …RESPONDENTS

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(BY SRI RAVISH BENNI, ADVOCATE FOR R3; NOTICE TO R1 TO R2 ARE DISPENSED WITH V/O DTD: 13.01.2016)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTIONS 173(1) OF MV ACT AGAINST THE JUDGMENT AND

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NC: 2023:KHC:23063-DB MFA No. 2450/2014

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AWARD DATED 05.11.2013 PASSED IN MVC NO.7475/2011 ON THE FILE OF XIII ADDL. JUDGE COURT OF SMALL CAUSES M.A.C.T(SCCH-15), BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY, K.S.MUDAGAL J ., DELIVERED THE FOLLOWING:

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JUDGMENT

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“Whether the compensation awarded to the

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appellant/claimant under the impugned award is just and reasonable ?” is the question involved in this case.

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The appellant was the sole claimant and respondents were respondents No.1 to 3 in MVC No.7475/2011 on the file of MACT and Court of Small Causes, Bengaluru. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the Tribunal.

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On 29.05.2011 at 11.25 a.m. when the claimant was proceeding on Scooter bearing No.KA-04/HF-6868 as pillion rider along with Madhusree Pateel the rider of the vehicle, near M.S.Ramaiah residence at HMT Road, BMTC Bus bearing No. KA-01/F-1643 hit the said scooter. Consequently the claimant

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and the rider of the vehicle suffered injuries. Regarding the accident, Madhusree-rider of the scooter filed complaint before

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Yeshwantapura Traffic Police alleging that the accident

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NC: 2023:KHC:23063-DB MFA No. 2450/2014

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occurred due to rash and negligent driving of the bus by the driver of the said bus. Based on the said complaint Yeshwantapura Traffic Police registered FIR as per Ex.P1 against the driver of the bus in Crime No.99/2011.

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On investigation, the said Police filed charge sheet as per Ex.P2 against the driver of the bus for the offences punishable under Sections 279 and 337 of IPC and Sections 134(a) and (b) read with Section 187 of the Motor Vehicles Act. During the relevant time, respondent Nos.1 and 3 were owner and Insurer of the said bus. Respondent No.2 was the registered owner of Scooter No.KA-04/HF-6868 .

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The claimant filed MVC No.7475/2011 before the Tribunal claiming compensation of Rs.21 lakhs from respondent Nos.1 and 3 alleging that the accident occurred solely due to the actionable negligence on the part of the driver of the bus. It was further contended that in the accident she suffered multiple grievous injuries and her career prospects and marriage prospects etc were affected. She claimed that she had to spend huge amount for medical expenses and she has suffered huge damages.

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Respondent Nos. 1 and 2 did not contest the petition. Respondent No.3 Insurer alone contested the petition denying the entire petition averments. As against that respondent No.3 contended that the accident occurred solely due to actionable negligence on the part of the rider of the scooter. It was contended that the rider of the scooter had no driving licence.

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To substantiate her case, the claimant got examined herself as PW.1. On summons to produce medical records, PW.2 the Manager of Columbia Asia produced documents and tendered evidence. PW.3/doctor was examined to prove the injuries suffered by the claimant and treatment given to her. On behalf of the claimant Ex.P1 to P20 were marked. On behalf of respondent No.3, RW.1 the finance assistant of Columbia Asia and RW.2 the officer of respondent No.3 were examined. On behalf of respondent No.3 Exs.R1 to R4 were marked.

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The Tribunal on hearing both parties by the impugned award held that the accident occurred solely due to the actionable negligence on the part of the driver of the bus bearing No. KA-01/F-1643. The Tribunal further held that the claimant suffered injuries as mentioned in Ex.P6 the discharge summary issued by the Columbia Asia Hospital for the period

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from 29.05.2011 to 02.06.2011. The Tribunal held that the second admission of the claimant in Columbia Asia Hospital as per Ex.P7 for the period from 13.06.2011 to 11.07.2011 had no nexus to the accidental injuries. The Tribunal further held that the medical expenses during the first admission of the claimant Rs.79,954/- was paid by her grand father and uncle. Therefore, she is not entitled to the same.

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So far as medical expenses of Rs.5,29,408/- during the second admission, the Tribunal held that part of that was reimbursed by the employer of the mother of the claimant and other part was paid under the Medi Assist claim. Therefore she is not entitled for any compensation on the head of medical expenses. The Tribunal awarded compensation of Rs.2,65,000/- on different heads as per the table below:

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Sl. No.	Particulars	Compensation amount in Rs.
1.	Pain and sufferings	40,000/-
2.	Attendant charges, diet and conveyance & other charges	25,000/-
3	Future medical expenditure	1,00,000/-
4	For permanent scars	50,000/-
5	Marriage prospects	50,000/-
	Total	2,65,000/-

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Submissions of Sri Murugesh V.Charati, learned counsel for the claimant:

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The finding of the Tribunal that the claimant has

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to failed to establish that she suffered the injuries due to dragging of her body by the bus after hitting her is contrary to the evidence on record. Similarly the finding of the Tribunal that second time hospitalization of the claimant and her treatment have no nexus with the accident is perverse. The Tribunal committed error in rejecting the claim for medical expenses. The compensation awarded on the head of future medical expenses is on the lower side. The compensation awarded on the other heads is also on the lower side. The Tribunal has failed to appreciate the evidence judiciously. Therefore, the appeal has to be allowed awarding the compensation claimed by the appellant/claimant.

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Submissions of Sri Ravish Benni, learned counsel for respondent No.3/Insurer:

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In the complaint there are no allegations that after the bus hitting the scooter the claimant was dragged by the bus and suffered grievous injuries. Even the charge sheet/Ex.P2 and Ex.P5/wound certificate claimant’s own

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documents state that the claimant had suffered simple injuries. Therefore, the Tribunal was justified in holding that the injuries shown in Ex.P7 had no nexus to the accident. The medical expenses allegedly incurred by the claimant on the first occasion were paid by her grand father and uncle, on the second occasion by ACE Designers and Medi Assist. The claimant cannot have double benefit and the rejection of the same is just one. The compensation awarded on the head of future medical expenses and all other heads is just one. Thus he seeks dismissal of the appeal.

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ANALYSIS

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The finding of the Tribunal that the accident in question occurred due to actionable negligence of the driver of the bus is not under challenge. Ex.P6 and 7 coupled with Ex.P1 to P5, Ex.P13, P14, evidence of PWs.1 to 3 and the evidence of RW.1 the witness of respondent No.3 themselves, Ex.R.1 and R.2 show that due to the injuries suffered in the accident, the claimant was treated as inpatient in Columbia Asia Hospital between 29.05.2011 and 02.06.2011 and on the second occasion between 13.06.2011 and 11.07.2011.

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As per Ex.P5 the wound certificate and the

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diagnosis during the discharge entered in Ex.P6, the victim had suffered these injuries:

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“Deep contaminated abrasions right arm and forearm with multiple lacerations and rt. middle finger deep laceration with abrasions face, chest, flanks”

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The respondents also did not dispute Ex.P6-the discharge summary issued by the Columbia Asia hospital which shows that the claimant was admitted in Columbia Asia hospital on 29.05.2011 at 11. a.m. The history mentioned in Ex.P6 is as follows:

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“18 yrs old female with alleged H/o RTA at around 11.15 a.m. was a pillion rider and was hit by a bus from behind and dragged down for a distance ”

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It is also stated in the said document that initially the claimant was taken to Ramaiah Hospital and from there she was brought to the said hospital. Ex.P6 shows that PW.3 Dr.Chetan Sathish was the admitting consultant. The diagnosis during the admission mentioned in Ex.P6 are as follows:

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“Deep abrasion present over the rt. upper limb. Extending from the hand to prox ARM with some deep lacerations of 4 x 2 cm of forearm, 2-3 in no.

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Compound dislocation of the distal phalynx of rt middle

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finger.

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Multiple abrasion over the anterior abdomen. Abrasions over the rt breast and chest area. Abrasion over the rt. Side face. Tenderness over the pubic symphysis +. No tenderness over the coccyx.

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Dislocation of the distal phlaynx of middle finger of rt. Hand with deep laceration on rt. Middle finger with extensor tendon and bone exposed of about 7 x 2 cm on dorsal aspect. Ct pelvis:NRA.”

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15. The course of treatment, the procedures performed

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during her first hospitalization mentioned in Ex.P6 are as

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follows:

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“Wound debridement, closure and collagen application rt.

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Arm, forearm and hand, rt. Chest and rt. Side of face. Under GA, parts cleaned and draped.

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Debridement and thorough wash of contaminated wounds on rt. arm, forearm and hands done.

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Multiple deep lacerations on rt. arm and forearm repaired with sub-cuticular stitches after thorough wash and debridement.

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Deep laceration on rt.middle finger exposing extensor tendons and bone was closed.

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Collagen dressing given to all deep abrasions.”

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Ex.P6 shows that she was discharged with the

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advice to appear for follow up if she gets fever etc. Ex.P7 the

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second discharge summary shows that claimant was admitted

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into the said hospital on 13.06.2011 with the following history:

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“Case of RTA on 29.5.11 when a bus hit her and dragged

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her for some distance .

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She was treated for multiple lacerations on her rt. arm and forearm, chest and flanks for which she underwent debridement and wound closure with collagen application. She initially had only abrasions on her buttock but over a course of 1 week she developed eschar formation on her buttock as a result of shearing of degloving component . She was followed up in opd where she was informed to

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come in case of redness around eschar develops and fever.

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She came with h/o fever and was immediately called to hospital

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O/E She had DEEP ESCHARS ON BOTH BUTTOCKS AND SIDES AND LOWER BACK. REDNESS +

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Eschar debrided and seroma drained from buttocks in emergency.

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She had a low hb of 5.6 on admission. She was treated with serial debridements and blood transfusion .

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Once her Hemoglobin stabilised and necrosis demarcation complete she was taken for complete debridement and VAC therapy applied.

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Following wound becoming healthy she was taken for closure of wound.”

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The above record goes to show that after her discharge from the hospital on first occasion the claimant developed fever and other complications. Therefore she was

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again admitted on 13.06.2011. Ex.P3 shows that PW.3 himself

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treated her on the second occasion also. The course of treatment on the second occasion mentioned in Ex.P7 is as follows:

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“Patient under went debridement and VAC application. Later wound closure was done.

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Now has central scab of 7 x 3 cm which is being planned for sec. healing. Discharge has reduced. Procedure performed:

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PLASTIC RECONSTRUCTIVE SURGERY – CAT D”

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The claimant was discharged on 11.07.2011. The

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Tribunal states that the injuries mentioned in Ex.P7 had no nexus to the accidental injuries and disbelieved the entry in Ex.P7 that the victim was dragged after the accident, on the ground that the same was not mentioned in the Police records and wound certificate. However, in doing so the Tribunal

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overlooked the history in Ex.P7 regarding the same. Apart from that the claimant was not the complainant. Police have filed charge sheet for the simple injuries, based on Ex.P5 the wound certificate. Ex.P2 does not indicate that the charge sheet was filed after 11.07.2011 i.e., the second period of hospitalization of the claimant. Ex.P6 and P7 show that the total period of hospitalization of the claimant was 33 days (5 +

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29). Therefore, certainly the injuries suffered by the victim are covered under Section 320(8) of IPC. The Tribunal committed grave error in accepting only the Police records and Ex.P5 wound certificate to the exclusion of Ex.P6 and P7 and omitting to examine the contents of Ex.P6 with regard to the history and nature of injuries.

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The evidence of PWs.1, 2, Exs.P6 and P7/the discharge summaries, the photographs/Ex.P8 show that the victim had suffered severe injuries on her right arm, fore arm, chest, flanks and face. They further show that she had suffered permanent scars on her right upper limb and back. Considering the nature of injuries and the period of hospitalization the compensation awarded on the head of pain and suffering and attendant charges are on the lower side. The Tribunal should have awarded just compensation on the head of pain and sufferings at Rs.1,00,000/- and attendant charges, diet and conveyance at Rs.35,000/-.

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The evidence of PW.2 and RW.1 show that the medical expenses during first hospitalization was Rs.79,954/and during second hospitalization was Rs.5,29,408/-. The Tribunal rejected the first time hospitalization charges on the

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ground that the same was paid by grandfather and uncle of the claimant. That was the pecuniary damage caused to the claimant and she remains obliged to the payers. Therefore the same is payable to her.

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So far as second period of hospitalization an amount of Rs.5,29,408/-, the Tribunal says that out of that Rs.2,00,000/- was paid by Medi Assist under medical insurance and the rest of the amount was reimbursed by the employer of the mother of the claimant. In this regard, the larger Bench of the Hon’ble Supreme Court in Sebastiani Lakra and Ors Vs National Insurance Company Ltd and Another¹ has held that deduction cannot be allowed from the amount of compensation either on account of insurance or on account of pensionary benefits, gratuity or grant of employment to a kin of the deceased/victim. It was further held that all such amounts were earned by the deceased/victim on account of contractual relationship entered into by him with others.

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In this case the mother of the claimant earned those reimbursement or payment on account of her contract with the employer/Insurer. Therefore rejection of the claim on those heads is contrary to the aforesaid judgment and the 1 AIR 2018 SC 5034

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evidence on record. Therefore the claimant is entitled to compensation of Rs.6,09,362/- (79,954/- + Rs.5,29,408) on the head of medical expenses.

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Though PW.2 deposed before the Court that the claimant needed Rs.1,00,000/- to Rs.1,50,000/- for future surgeries, nothing was placed either before the Tribunal or before this Court to show that she underwent any other plastic surgery or any other treatment. Apart from that Ex.P7 shows that she underwent plastic surgery during her second time hospitalization. Therefore on that head no compensation need to be paid.

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The Tribunal has awarded compensation on the head of permanent scars and marriage prospects. As against that the Tribunal should have awarded compensation on the head of loss of amenities and loss of marriage prospects. Having regard to the nature of the injury, the period of hospitalization and the evidence on record, the Tribunal should have awarded Rs.1,00,000/- on the head of loss of amenities. The claimant was aged hardly 18 years at the time of accident. Exs.P6 to P8 the medical records and the photographs show that the claimant has suffered disfigurement of her hand and

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scars on her back. She had degloving injuries. It is submitted that so far she is not married though she is aged 32 years. Under the circumstances, the compensation of Rs.2,50,000/on the head of loss of marriage prospects meets the ends of justice.

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So far as interest, the Tribunal has awarded interest at the rate of 8% per annum. The same is not challenged by the respondents. Having regard to the sufferings, nature of the injuries and the agony undergone by the claimant and the fact that respondents have not challenged the rate of interest, we find it appropriate to maintain the same. Therefore, just compensation payable is as follows:

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Sl. No.	Particulars	Compensation amount in Rs.
1.	Pain and sufferings	1,00,000/-
2.	Medical expenses	6,09,362/-
3.	Attendant charges, diet and conveyance	35,000/-
4.	Loss of amenities	1,00,000/-
5.	Loss of marriage prospects	2,50,000/-
	Total	10,94,362/- rounded off to 10,94,400/-

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For the aforesaid reasons, the appeal deserves to

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be allowed in part. Hence the following:

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ORDER

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The appeal is partly allowed.

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The award of the Tribunal is modified as follows:

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(i) The claimant is entitled to compensation of Rs.10,94,400/- with interest thereon at 8% per annum from the date of the petition till the date of deposit.

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(ii) Respondent No.3/Insurer shall deposit the said amount after adjusting the amount already deposited if any, before the Tribunal within four weeks from the date of receipt of copy of this order.

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iii) On such deposit, the Tribunal shall release the amount to the claimant digitally on proper identification.

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(iv) Registry shall transmit the trial Court records to the Tribunal forthwith.

Sd/JUDGE

Sd/-

JUDGE

AKC,KSR