Chandrasen S/O Apparao Birajdar Vs Nagmurti and Anr.

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 03.07.2019 PASSED IN MVC NO.1034/2015 ON THE FILE OF THE COURT OF THE III ADDL. SENIOR CIVIL JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL NO.XII, VIJAYAPURA AND ALLOW THIS APPEAL AND TO GRANT THE COMPENSATION OF RS.10,00,000/- ONLY AS CLAIMED BY THE APPELLANT BEFORE THE TRIBUNAL, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS MFA, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and award dated 03.07.2019 passed by III Addl. Senior Civil Judge and M.A.C.T.-XII, Vijayapur (for short, ‘tribunal’), in MVC No.1034/2015, this appeal is filed.

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Sri Bapugouda Siddappa, learned counsel submitted appeal was by claimant against dismissal of claim petition. It was submitted, on 04.01.2013 at about 6:30 p.m., when claimant was travelling in Mahindra Tempo no.MH-13/AZ-2867, near land of Dholasgaonkar on Waghadari-Gogaon road, driver of said vehicle drove it in rash and negligent manner, which resulted in accident. In accident, claimant sustained grievous injuries and was taken to hospital. Despite treatment, he did

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not recover fully and sustained permanent physical disability and loss of earning capacity. He filed claim petition under Section 166 of Motor Vehicles Act for compensation.

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On appearance, respondents no.1 and 2 appeared and opposed claim petition, denying occurrence of accident involving insured vehicle and claimant suffering injuries therein. Even, issuance of insurance policy and coverage as on date of accident and violation of policy conditions were also urged.

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Based on pleadings, tribunal framed issues and recorded evidence. Claimant examined himself and Dr.SV Havinal as PWs.1 to 2 and got marked Exs.P-1 to 17. Insurer examined its official as RW-1 and got marked Exs.R1 to R4.

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On consideration, tribunal held claimant had failed to establish that accident had occurred due to rash and negligent driving of insured vehicle and dismissed claim petition. Aggrieved, claimant was in appeal.

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It was submitted vehicle involved in accident was a light commercial vehicle. Due to illiteracy and local usage in complaint, vehicle was mentioned as ‘Tempo’ no.MH-13/AG-

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In Hospital admission card and MLC intimation it was described as ‘Tom-Tom’ vehicle. Taking note of small inconsistencies, insurer opposed claim denying involvement of insured vehicle. However, prosecution had completed investigation and implicated driver of insured vehicle for rash and negligent driving and causing accident resulting in injuries to claimant in Ex.P9-charge sheet. It was submitted neither owner nor driver had challenged charge sheet. Therefore, tribunal was not justified in dismissing claim petition.

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On other hand, owner of vehicle is served & unrepresented. However, Sri M Sudarshan, learned counsel for insurer opposed appeal. At outset it was submitted, there was delay of 09 days in filing complaint. Apart from above, there were various inconsistencies and discrepancies in description of offending vehicle. It was submitted ‘Tom-Tom’ was normally associated with a diesel three wheeler vehicle and could not be confused with a ‘Tempo’ which would normally be a four wheeler. It was submitted in Ex.P.5/Ex.P.6-spot panchanama and Ex.P.3/P4-complaint, vehicle number was mentioned as ‘Tempo’ bearing no.MH-13/AG-2867, while in Ex.P.15admisison card in column for history of injuries, it was

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described as ‘Tom-Tom’ vehicle. Even in Ex.R2-MLC intimation it was described as ‘Tom-Tom’ vehicle. Under such circumstances, dismissal of claim petition was justified and there was no merit in appeal.

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Heard learned counsel, perused impugned judgment

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and award.

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This appeal is by claimant challenging dismissal of claim petition. Therefore, point that would arise for consideration is:

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1. Whether tribunal was justified in dismissing claim petition?

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1. Whether claimant is entitled for compensation, if so from whom?

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Point no.1: From above, it is seen claimant had filed claim petition against owner and insurer of vehicle no. MH13/AZ-2867 seeking for compensation on account of injury/disability sustained in accident that occurred on 04.01.2013 due to rash and negligent driving of insured vehicle by its driver. In order to establish actionable claim, claimant relied on police investigation records namely FIR, complaint,

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spot panchanama, motor vehicle inspector’s report and chargesheet marked as Exs.P1 to P7 and Ex.P9. Perusal of Ex.P2translated copy of complaint reveals that it was filed by claimant herein on 13.01.2013 at 9.10 p.m. after apparent delay of 09 days with explanation that delay was on account of claimant being under treatment. Ex.R2 - MLC intimation by hospital reveals that intimation was registered with no.95/2012 dated 05.01.2013, though Ex.P8 would disclose certificate being issued on 13.02.2013. Ex.P15 hospital admission card shows admission of claimant on 04.01.2013 with history of injuries due to ‘RTA’ and bears MLC endorsement. Thus, immediately on admission of claimant to hospital, there was intimation to police. Same would amount to sufficient explanation for delay in filing compliant.

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Insofar as discrepancy about description of type of vehicle and vehicle number, words ‘Tom-Tom’ is of colloquial horizon and may not find support from any provision of law or notification. Likewise, ‘Tempo’, may have originated in vehicle manufacturer’s parlance. Admittedly, accident occurred in mofussil area. Thus, much cannot be attributed to description of vehicle without specific evidence about same being malafide

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with intention to mislead. Moreover, there is no specific crossexamination of claimant on this aspect.

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Insofar as discrepancy in mentioning vehicle number, though in Ex.P.5/Ex.P.6-spot panchanama and Ex.P.3/P4-complaint, vehicle number mentioned is MH-13/AG2867, in accident spot sketch appended to spot panchanama there is correct mentioning of vehicle number as MH-13/AZ2867. Discrepancy is confined to one alphabet only. However, possibility of implicating insured vehicle for purposes of claim is ruled out as vehicle involved in accident was noted to be lying at the spot when Ex.P.5/Ex.P.6-spot panchanama was drawn on 14.01.2013. Moreover, on completion of investigation, police filed charge-sheet as per Ex.P.9/Ex.P.10.

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While passing impugned award, only reason assigned by tribunal is failure by Investigating Officer to assign reasons about discrepancy in vehicle number, while filing charge-sheet and no explanation by complainant for delay in filing it. It is observed about that delay in filing complaint would not be fatal due to forwardal of MLC intimation to police by hospital. Likewise in case of discrepancy in description of

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vehicle and vehicle number. On overall consideration, material on record would be sufficient to establish actionable claim against insurer and conclusion by tribunal to contrary would be hyper-technical, without taking note of circumstances in proper perspective. Hence, point no.1 is answered in negative.

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Point no.2 :

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While passing award, tribunal proceeded to dismiss claim petition in view of its conclusion on point no.1, without assessing compensation. Hon’ble Supreme Court in

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case of APMC, Bangalore v. State of Karnataka and Ors., reported in (2022) 7 SCC 796 has held:

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“11. As observed hereinabove, though a number of other issues were raised on the legality of the acquisition proceedings under the Act, 1894 and though other points for consideration were raised/framed by the High Court reproduced hereinabove, since none of the issues are adjudicated by the High Court on merits, we have no other alternative but to remand the matter to the learned Single Judge for deciding the writ petitions afresh and to adjudicate on all the other issues, other than the lapse of acquisitions under subsection (2) of section 24 of the Act, 2013.”

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15. In case of Nusli Neville Wadia v. Ivory

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Properties & Ors, reported in (2020) 6 SCC 557, it is held that after amendment of Order 14 Rule 2(2) of CPC w.e.f.

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01.02.1977, despite enabling Court to decide issues of law as preliminary in case it relates to (i) jurisdiction of court or (ii) a bar to suit created by any law for time being in force, it was mandatory for Court to pronounce judgment on all issues.

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Failure to adhere to same requires a remand back to tribunal, heaping further delay and misery on injured claimant. To avoid same, counsel for parties was heard for purposes of determination of quantum of compensation. This is a personal injury claim wherein claimant alleged were suffered not only pain and suffering but also loss of earning capacity. He is seeking compensation towards pain and suffering, medical expenses, loss of income during treatment, future loss of income, future medical expenses as well as compensation towards loss of amenities.

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Normally, this Court would award 25,000/- towards major fractures and 15,000/- to minor fracture. Ex.P.8 discloses claimant sustaining compound fracture of lower end of right humerus treated with ORIF fixation of inter condylor shaft dual plate fixation by olecranon osteotomy, apart from other injuries. Ex.P15 - discharge summary would indicate treatment

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for degloving. In Ex.P.16 – disability certificate also there is mention of communited fracture of lower end of right humerus. Under circumstances, it would be appropriate to award `35,000/- towards pain and suffering.

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Claimant has produced 18 bills marked as Ex.P11 for total amount of 92,158/- (which includes Hospital Bill with receipt for 65,000/- and remaining being towards purchase of medicines). Except eliciting that OPD number and date of admission/discharge were not mentioned in hospital bill, nothing material to discredit bills is elicited. Hospital bill mentions registration number as ‘1187’ which tallies with registration number in Exs.P.13 and P.15 where particulars of date of mention and discharge are mentioned. In view of above, it would be appropriate to award `92,158/- towards medical expenses.

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In claim petition and deposition, claimant stated that he was 45 years of age and earning 10,000/- per month from agriculture. However, there is no other material placed on record to corroborate same. In absence, it is wont to assess income notionally. Notional income for year 2013 is 7,000/- as

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adopted by KSLSA for settlement of cases before Lok Adalath. Same has to be considered as monthly income. And as fractures normally take three months to heal, claimant would be entitled for `21,000/- towards loss of income during laid-up period.

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Dr.SV Havinal issued Ex.P16 assessing permanent physical disability to extent of 22-24%. He also deposed as PW.2 giving particulars of observation in clinical examination after referring to treatment records noting restriction to movements of right elbow and shoulder as follows :

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i. Loss of Flexion of Right Elbow by 40%.

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ii. Loss of Flexion of Right shoulder by 15%.

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iii. Loss of abduction-adduction of Right shoulder by 7.6%.

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iv. Restriction of rotation arc of right shoulder by 23%.

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However, he has assessed disability due to restriction of movements by 6.5%, due to loss of grip strength by 3%, inability/difficulty in normal activities of right upper limb by 8%, wasting of Right Elbow/forearm at 3% and Fixed flexion of Right Elbow at 3% totalling to 22 to 24%. However, assessment is of affected limb and there appears some extent

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of overlapping. Considering same and taking note of occupation of claimant as agriculturist, it would be appropriate to consider loss of earning capacity at 8%. As per Police investigation records as well as Treatment records, age of claimant is mentioned as 45 years, which is determined as his age. Thus multiplier applicable would be 14. Thus computation of compensation towards future loss of income would be :

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7,000/- X 8% X 12 X 14 =94,080/-.

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Same is awarded to claimant.

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Ex.P.13 - discharge card reveals implants in situ. Even PW.2 has stated about implants. Claimant would be entitled for compensation towards surgery for removal of implants. It would be appropriate to award `25,000/- future medical expenses.

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As per treatment records, disability certificate and deposition of PW.2, claimant sustained permanent physical disability with restriction movement of right upper limb. Therefore he would be entitled for compensation towards loss of amenities assessed at `30,000/-.

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Thus claimant is held entitled for total compensation

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as follows:

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1.	Pain and suffering	`35,000/-
2.	Medical expenses	`92,158/-
3.	Loss of income during laid-up period	`21,000/-
4.	Futureloss of income	`94,080/-
5.	Future medical expenses	`25,000/-
6.	Loss of amenities	`30,000/-
	Total	`2,97,238/-

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Since, there is no dispute about vehicle being

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insured, insurer would be liable to pay same. Point no.2 is answered in affirmative. Consequently, following :

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ORDER

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i. Appeal is allowed in part, judgment and award dated 03.07.2019 passed in MVC no.1034/2015 by Court of III Additional Senior Civil Judge and MACT-XII, Vijayapur is set-aside, claimant is held entitled for total compensation of `2,97,238/- with interest at rate of 6% per annum from date of claim petition till realization.

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