Paramma@ Parvati W/O Ghaleppa Vs Ningappa and Anr.

PARAMMA @ PARVATI W/O GHALEPPA, AGE: 53 YEARS, OCC: AGRICLUTURE LABOUR NOW NIL, R/O VILLAGE NIRNA, TQ. HUMNABAD, DIST. BIDAR, NOW R/O TAJ COLONY, BASAVAKALAYAN, DIST. BIDAR-58410.

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…APPELLANT

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(BY SRI. BABU H. METAGUDDA, ADVOCATE)

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AND:

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Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA

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NINGAPPA S/O EARAPPA WOORI, AGE: MAJOR, OCC: OWNER OF YAMAHA MOTOR CYCLE NO. KA-39/J-6327, R/O H. NO. 2/52, CHANGLERA, TQ. HUMNABAD, DIST. BIDAR-58410.

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THE DIVISIONAL MANAGER, NEW INDIA INSURANCE CO. LTD., SANGAMESHWAR COLONY, KALABURAGI-585 101.

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…RESPONDENTS

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(BY SMT. SHASHIKALA JAHAGIRDAR, ADV. FOR R2; R1-SERVED)

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THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 21.03.2016 PASSED IN M.V.C. NO. 58/2015 BY THE II ADDL. DISTRICT AND SESSIONS COURT AND ADDL. MACT BIDAR SITTING AT BASAVAKALYAN. AND ENHANCING THE COMPENSATION FROM RS.3,61,200/- WITH 7% INTEREST TO RS.15,00,000/- WITH 12% INTEREST AND ETC.,

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C M JOSHI

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE C M JOSHI)

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Heard learned counsel appearing for the appellant and the respondent No.2-Insurance Company.

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Being aggrieved by the judgment and award dated 21.03.2016 by the learned II-Addl. Dist. & Sessions Court, & Addl. MACT-Bidar, sitting at Basavakalyan (for short, ‘the Tribunal’) in MVC No.58/2015, the petitioner is before this Court seeking enhancement of compensation and the liability to be fastened on the respondent No.2.

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The factual matrix of the case is that, on

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06.04.2014 at about 9:00 a.m. the petitioner was proceeding towards her land on Nirna-Mannaekheli road, along with her daughter Mallamma. The rider of the motorcycle bearing No.KA-39/J-6327 came from the hind side of the petitioner in a rash and negligent manner and dashed to her and caused the accident. The petitioner fell down and sustained injuries to her head. She was immediately taken to the PHC at Mannaekheli and then she was shifted to a private hospital at Panacea Meridian Hospital, Hyderabad. She was inpatient in the said Hospital from 06.04.2014 to 25.04.2014. It is the case of the petitioner that after discharge, she stayed at Hyderabad in her relative's house and only returned to her village on 24.05.2014.

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Thereafter, a complaint was lodged by son of the petitioner on 24.05.2014, which came to be registered in Crime No.88/2014 and an investigation was launched by the police. The police investigated the matter and filed a

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charge-sheet against the rider, who is none else than the respondent No.1. Contending that the petitioner was aged about 55 years at the time of the accident and she has suffered permanent disability on account of the head injury, the petitioner approached the Tribunal seeking adequate compensation.

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On issuance of notice, the respondent No.2 appeared before the Tribunal and filed written statement. The respondent No.1 remained ex parte before the Tribunal. The respondent No.2-Insurance Company contended that, there is inordinate delay in filing the complaint and the petitioner colluding with the respondent No.1 has falsely implicated the vehicle in this case. It was contended that the terms and conditions of the policy were violated by the respondent No.1 and that the compensation claimed is highly exorbitant, imaginary and untenable in law. It also denied the age, income and occupation of the petitioner.

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On the basis of the above contentions, the

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Tribunal framed appropriate issues and the petitioner was examined as PW.1 and the doctor, who assessed her disability was examined as PW.2; Exs.P1 to P17 were marked in the evidence. No evidence was led on behalf of the respondent No.2.

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After hearing the arguments, the Tribunal held that the respondent No.1 has not at all come forward to deny the allegations against him and therefore, the respondent No.2 is not liable to pay the compensation amount and as such, fastening the liability upon the respondent No.1 and determined the compensation at

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Rs.3,61,200/- under different heads as below:

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Sl.No.	Heads	Amount
1.	Pain and sufferings.	Rs.25,000/-
2.	Loss of life amenities and pleasure	Rs.10,000/-
3.	Medical attendant charges, food and nutrition charges and transportation charges.	Rs.10,000/-
4.	Loss of income during laid up period (Rs.6,000/-x 2)	Rs.12,000/-
5.	Loss of future income (Rs.72,000/-x 11x10/100)	Rs.79,200/-
6.	Medical expenses.	Rs.2,25,000/-
	Total	Rs.3,61,200/-

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Being aggrieved by the same, the petitioner is

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before this Court in appeal.

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The learned counsel appearing for the petitioner would submit that the Tribunal while absolving the liability upon the respondent No.2, has based its reasoning on surmises and conjectures. It does not come to a conclusion that the vehicle has been falsely implicated in the case and simply because the respondent No.1 did not resist the petition, it fastened the liability upon the respondent No.1 when the policy produced at Ex.P16 shows that the vehicle was insured, the Tribunal should have fastened the liability upon the respondent No.2.

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Secondly, he contends that the petitioner had sustained the head injury and in a craniotomy done at the Panacea Meridian, Hospital, Hyderabad, a portion of the skull bone was removed and it was kept in the abdominal wall for performing a cranioplasty at a later date. This aspect was not properly appreciated by the Tribunal and the disability stated by PW.2 was reduced to 10% in

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awarding the compensation. Therefore, he submitted that there is need for enhancement of the compensation.

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Per contra, learned counsel appearing for respondent No.2 would submit that the complaint was filed on 24.05.2014 though the accident had occurred on 06.04.2014. The delay of more than 48 days has not been properly explained by the petitioner by examining either her son, the complainant or her daughter, who was with her at the time of the accident.

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It is further submitted that there is overwriting

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in the discharge summary in order to implicate the motorcycle of the respondent No.1. Therefore, the delay in filing the complaint coupled with the overwriting in the discharge summary would indicate that the vehicle was falsely implicated and therefore, the Tribunal is justified in fastening the liability upon the respondent No.1. She further submits that there is no such evidence, which would show that after the petitioner was examined by PW.2 as to whether she had taken further treatment. The

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evidence regarding the cranioplasty would have disclosed whether she had returned to normalcy or not. Therefore, it is submitted that the compensation awarded by the Tribunal is adequate, just and proper. On these grounds, she seeks dismissal of the appeal.

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The first aspect to be decided by this Court is whether the Tribunal is justified in fastening liability upon the respondent No.1.

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The perusal of the FIR would disclose that though the accident had occurred on 06.04.2014, the police registered the case only on 24.05.2014 at about 5:00 p.m. Conspicuously, the complaint was lodged by the son of the petitioner and in the said complaint, he had stated that he stayed with the petitioner at Hyderabad till 24.05.2014 and on returning back, he came to know that the rider of the motorcycle, who caused the accident was Ningappa. He was ignorant about the requirement of registering a case and therefore, after he learnt that a

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complaint has to be filed, he approached the police and filed the complaint.

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It is pertinent to note that such explanation in the complaint by Vishnu (son of the petitioner), show that he also stayed with the petitioner at Hyderabad and he only returned on 24.05.2014. The statement under Section 161 of the Cr.P.C. recorded by the Investigating Officer are at Exs.P2 and P3. In Ex.P2 the petitioner states that she came to know about the name of the rider of the motorcycle on 25.05.2014. However, the statement of Mallamma, which is at Ex.P3 show that she was with her mother at Hyderabad and she was discharged from the hospital on 25.04.2014 and stayed in Hyderabad in relatives house. After the petitioner recovered, they returned to the village and then she came to know that the rider of the motorcycle was Ningappa. This record would clearly indicate that, the complainant as well as Mallamma had the knowledge that YAMAHA motorcycle bearing No.KA-39/J-6327 was involved in the accident, but

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they did not know the name of the rider. They came to know about the name of the rider after returning to the village and then they have filed the complaint.

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Further, the wound certificate at Ex.P6 would disclose that Mannaekheli Government Hospital had noted that the injuries were in a road traffic accident. It was also noticed that there was fracture of right frontal and occipital bones. The discharge summary at Ex.P8 would disclose that the history is stated to be injuries due to RTA when the patient was going on road side, hit by a bike. It is also evident that the said entry is being made after striking off the mention that it was a fall from bike. Evidently, the said entry is in the same handwriting of the person, who wrote the earlier version also. In the absence of any other material to show that the petitioner or any other person, who accompanied her to the Hospital had informed the Hospital authorities that the accident was due to fall from the bike, whatever that is mentioned in Ex.P8 has to be accepted. When the Insurance Company

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contends that it is manipulated document, it was incumbent upon it to show that the original records of the Hospital showed that the injuries were due to fall from the bike. The hospital records are not summoned by either of the sides. In the cross-examination of the PW.1, there is nothing elicited as to which vehicle had caused the accident. Obviously, the petitioner was unconscious after the accident and she was taken to Hyderabad for treatment. The daughter of the petitioner Mallamma has not been examined.

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Under these circumstances, the available evidence on record overwhelmingly show that the motorcycle owned by the respondent No.1 and insured by respondent No.2 was involved in the accident. It is the fact that, the name of the rider came to the knowledge of the son-the complainant only after he returned to the village on 24.05.2014.

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In that view of the matter, the liability to pay

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the compensation to the petitioner could not have been

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fastened upon the respondent No.1. There being no rebuttal evidence on behalf of the Insurance Company, the Tribunal erred in fastening the liability on respondent No.1 on presumptions and surmises. A suspicion cannot be a ground to absolve the liability of the respondent No.1 when the policy being in force as on date of the accident,

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as depicted in Ex.P16. Therefore, the liability has to be fastened upon the respondent No.2.

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Coming to the quantum of the compensation amount is concerned, the petitioner is aged about 55 years and she had suffered the fracture of right frontal contusion with right fronto temporo parietal SDH with right fronto temporal edema. She underwent craniotomy and the right temporo parietal bone was removed and the bone flap was placed in anterior abdominal wall. In other words, the bone, which was removed by way of craniotomy was implanted in the abdominal wall for future cranioplasty.

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The testimony of the PW.2 would disclose that among other disabilities, he had observed that there is

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deafness in the right ear, mentally unstable, confused, irrelevant in talking and unable to recollect the past events. He also noticed that sometimes she loses a sense of clothing in the public. Therefore, he opines that there is 50% disability to the whole body. Obviously, PW.2 is not a treated doctor and is not a neurosurgeon, he was only a general Surgeon.

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It is a settled principle of law that the testimony of the Doctor, who did not treat the injured cannot be brushed aside in entirety. The testimony of such Medical Officer has to be appreciated cautiously. The testimony of a Doctor, who had treated the injured would have better reliability since he knows the manner in which the patient was treated and since his effort was to reduce the disability as far as possible. In other words, a treated Doctor would not normally say that his treatment is not correct. When we appreciate the evidence of the PW.2, the functional disability of the petitioner deserves to be appreciated. The physical disability of the petitioner being

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assessed by PW.2 at 50%, this Court is of the view that the functional disability of the petitioner is 20%.

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The petitioner has not adduced any evidence regarding her income. Therefore, the Tribunal has assessed the notional income at Rs.6,000/- per month. The guidelines issued by the KSLSA, for the purpose of settlement of disputes before the Lok-Adalath prescribe a notional income of Rs.7,500/- for the year 2014. In umpteen number of judgments, this Court has held that the guidelines issued by the KSLSA are in general conformity with the wages fixed under the Minimum Wages Act, and therefore they can be adopted as the notional income. Hence, the compensation under the head of loss of future income on account of disability is calculated as Rs.7,500/x 12 x 11 x 20% = Rs.1,98,000/-.

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It can safely be said that the petitioner was unable to resume her normal activity at least for a period of three months, i.e. Rs.7,500/- x 3 = Rs.22,500/-.

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24. Considering the nature of the injury suffered by

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the petitioner and that due to craniotomy, the brain was covered only with a skin flap for considerably long time, it would be just and proper to award a sum of Rs.50,000/under the head of pain and suffering and Rs.50,000/under the head of loss of amenities in life.

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Considering the fact that the petitioner was impatient for a period of 19 days, a sum of Rs.20,000/- is awarded to her under the head of attendant charges, food and nutrition, etc.

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The Tribunal has awarded a sum of Rs.2,25,000/- even though the bills produced were to the tune of Rs.2,50,000/-. The reason for such reduction is not recorded by the Tribunal. The bill of Panacea Meridian Hospital itself is to the tune of Rs.1,75,000/-. Therefore petitioner is entitled for Rs.2,50,000/- under medical expenses.

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It is pertinent to note that the discharge

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summary as well as the testimony of the PW.2 would show that the petitioner requires another surgery of cranioplasty. Therefore, it would be proper to award a sum of Rs.40,000/- towards the future medical expenses. In the absence of any memo of calculation, this Court do not find any reason to interfere with the same.

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Hence, petitioner is entitled for a total

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compensation under following heads.

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Sl.No.	Heads	Amount
1.	Pain and sufferings.	Rs.50,000/-
2.	Loss of life amenities	Rs.50,000/-
3.	Medical attendant charges, food and nutrition charges and transportation charges.	Rs.20,000/-
4.	Loss of income during laid up period	Rs.22,500/-
5.	Loss of future income	Rs.1,98,000/-
6.	Medical expenses	Rs.2,50,000/-
7.	Future Medical Expenses	Rs.40,000/-
	Total	Rs.6,30,500/-
	Less the amount awarded by the Tribunal	Rs.3,61,200/-
	Enhancement	Rs.2,69,300/-

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In the result, the appeal deserves to be allowed. Hence, the following:

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ORDER

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(i) The appeal is allowed in-part;

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(ii) The petitioner is entitled for a sum of Rs.6,30,500/instead of Rs.3,61,200/-, along with interest at the rate of 6% per annum from the date of petition till its deposit before the Tribunal (excluding the interest over the future Medical Expenses i.e. Rs.40,000/-);

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(iii) The respondent No.2-Insurance Company is directed to pay the compensation amount to the petitioner within a period of six weeks from the date of this order;

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(iv) Rest of the order of the Tribunal stands unaltered;

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(v) The Registry to send back the records to

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the concerned Court.

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Sd/(C M JOSHI) JUDGE

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SDU LIST NO.: 1 SL NO.: 55 CT: AK

Paramma@ Parvati W/O Ghaleppa v. Ningappa and Anr.

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Paramma@ Parvati W/O Ghaleppa v. Ningappa and Anr.

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