Smt Jayalaxmi Vs Mr Anjanappa

THE MANAGER ICICI LOMBARD GENERAL INSURANCE CO.LTD., ICICI COMAPLEX NEXT TO SHOPPING COMPLEX MAGRATH ROAD BENGALURU-560 001 NOW REPRESENTED BY MANAGER-LEGAL ICICI LOMBARD GENERAL INSURANCE CO.LTD. #89, II FLOOR, SVR COMPLEX HOSUR MAIN ROAD, MADIVALA BENGALURU-560 068

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...APPELLANT

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(BY SRI A.N.KRISHNA SWAMY, ADVOCATE)

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AND:

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SMT.JAYALAXMI W/O.RAJAPPA AGED ABOUT 40 YEARS R/AT #81, MADIWALA ANEKAL TALUK BENGALURU-562 106

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ANJANAPPA S/O.MUNIYAPPA MAJOR MADIGIRIHALLI (V) SHIVAKOTE POST BENGALURU-560 175

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...RESPONDENTS

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(BY SRI N.GOPALKRISHNA, ADVOCATE FOR R-1; R-2 IS SERVED AND UNREPRESENTED)

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HC-KAR

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 04.12.2013 PASSED IN MVC NO.8517/2010 BY VII ADDITIONAL SMALL CAUSES JUDGE, MEMBER, MACT-3, BENGALURU.

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THESE APPEALS ARE COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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Both these appeals arise out of the common judgment and award dated 04.12.2013, passed by the VII Additional Small Causes Judge & Member, MACT-3, Bengaluru (for short “the Tribunal”), in MVC No.8517/2010. Hence, they are taken up together for disposal.

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The claimant filed an appeal in MFA.No.4431/2014 seeking enhancement of compensation and the Insurer filed MFA.No.2341/2014 challenging the entire award.

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For the sake of convenience, the parties are referred to as per the ranking before the Tribunal.

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HC-KAR

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The brief facts of the case are that on 06.12.2010, at about 5.00 a.m., the claimant was traveling on a motorcycle bearing registration No.KA-50-J-1440, as a pillion rider and one Mr.Rajappa was rider of the motor cycle on National Highway. The rider of the motor cycle rode it in a high speed, in a rash and negligent manner; lost control of the vehicle, and collided with the roadside barricade. As a result, the claimant fell and sustained grievous injuries. She was initially taken to Sparsh Hospital and was later shifted to 'Live 100 Hospital', where she incurred substantial medical expenses.

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It is stated that the claimant was aged 38 years as on the date of the accident and she was earning a sum of Rs.6,000/- per month by selling flowers. Due to the injuries sustained, she has suffered permanent disability. Hence, she files a claim petition seeking compensation of Rs.25,00,000/-.

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Respondent No.2-owner of the offending vehicle remained ex parte before the Tribunal. Respondent No.1-

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HC-KAR

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Insurer of the offending vehicle filed written statement

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denying the occurrence of accident and its liability to pay the compensation etc. It was also stated that the offending vehicle was falsely implicated in this case solely to claim compensation from Respondent No.1. It was further stated that the claimant sustained injuries in a different incident. Therefore, prayed to dismiss the claim petition.

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In support of her case, the claimant examined

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herself as PW.1 and two other witnesses as PWs.2 and 3 and marked documents as Exs.P1 to P43. On the other hand, respondent No.1 examined three witnesses as RWs.1 to 3 and marked documents as Exs.R1 to R9.

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After hearing both parties, the Tribunal awarded

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following amounts of compensation:

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1.	Pain and Agony	Rs.	75,000-00
2.	Actual Medical bills	Rs.	2,64,290-00
3.	Attendant charges (Rs.200/- per day) 200 x 30	Rs.	6,000-00
4.	Loss of income during treatment period (One month salary)	Rs.	5,000-00
5.	Loss of future income due to disability 5000x12x15x30%	Rs.	2,70,000-00

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HC-KAR

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6.	Conveyance, Food	Rs.	10,000-00
	nutrition
7.	Loss of amenities	Rs.	20,000-00
	Total	Rs.	6,50,290-00

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The Tribunal assessed the income of the claimant

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as Rs.5,000/- per month, assessed the disability as 30% to the whole body, taken the age of the claimant as 38 years and applied the multiplier as 15 and on that basis assessed the aforesaid compensation. The Tribunal held that respondent Nos.1 and 2 are jointly and severally liable to pay the said compensation amount.

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Heard the arguments.

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The main contention of learned counsel for

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claimant is that the amount of compensation awarded by

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the Tribunal is on the lower side. The income as well as the disability assessed by the Tribunal is on the lower side

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and even the amount of compensation awarded under other heads are also inadequate. Hence, prayed to enhance the same.

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HC-KAR

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The contention of learned counsel for the Insurer

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is that the said vehicle was falsely implicated in this case, just to claim the compensation. The information given before the Medical Officer was different and later on, it was manipulated. Therefore, the insurer sent the said document to a handwriting expert, who revealed that the note stating 'H/o RTA' was written by one person, while the rest of the content was written by another. This indicates that the vehicle was falsely implicated in the case to wrongful gain from insurer. In order to contradict the initial information provided to the doctor, and that there were instances of overwriting. However, the Tribunal failed to consider these points and erroneously believed the case of the claimant and awarded the compensation.

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PW.1 is the claimant. In her evidence, she has reiterated the facts of the case and stated the manner in which, the accident occurred. She has also stated that she was unconscious immediately after the accident. She was admitted in Live 100 Hospital, wherein she took treatment

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HC-KAR

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and was admitted as an inpatient from 06.12.2010 to 15.12.2010 and she was advised to take rest for six months.

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She was thoroughly cross-examined and in her cross-examination, she was able to recall the facts of the case and answer the questions of the Insurer. She denied the suggestion that she had sustained injuries in a different incident and had fabricated the story of the accident.

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PW.2 is an attendant. According to her, she was

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employed by the claimant and was being paid a salary of Rs.2,000 per month. As of the date of her evidence, she continued to attend the claimant.

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PW.3 is the Consultant Neurosurgeon at 'Live 100 Hospital'. He has stated in his evidence that he reassessed the patient on 07.12.2011, to determine the extent of disability.

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HC-KAR

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Initially, the claimant received treatment at 'Live

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100 Hospital', and the incident was reported in the said hospital. However, no relevant information was provided in the evidence of PW.3. Although the insurer challenged the hospital entry, the case record does show a history of injury.

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The respondent-Insurer to prove his contention that the medical records were manipulated just to claim the compensation, got referred the disputed document to the FSL. The report was secured from the FSL, which is at Ex.R8, wherein the opinion is given as under:

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"xxxxxxxxxxx

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OPINION

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1. In Ex.P15- The writings in column "Alleged Cause" read as "H/o R.T.A.at 5 AM at near the Biocon turning Hebbagodi on 06.12.10 when her husband was riding the bike, both were skid from the bike" are not written by one and the same person & in one and the same ink.

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2. The writings read as "H/o R.T.A.at 5 AM at near the Biocon turning Hebbagodi on 06.12.10" are written by one person in one & and the same ink.

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HC-KAR

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3. The writings read as "when her husband was riding the bike, both were skid from the bike" are written by different person in different ink."

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The said fact may not help the Insurer unless the

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person who has written the said history was examined by the Insurer. But, the respondent-Insurer did not examine any of the persons from the said Hospital to show that the said document was manipulated. Proving of alteration/ manipulation or change of handwritings are not sufficient. The Doctor/staff of Hospital if denies writings on the said document then that facts may be relevant.

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Ex.P15 is the Medico-Legal case intimation, which states that the claimant was admitted with a history of a road traffic accident at 5:00 a.m., near Biocon Turning, Hebbagodi, on 06.12.2010. The same facts were again repeated in another entry, stating that when her husband was riding the bike, both of them skidded off from the bike. This entry was signed by the Casualty Medical Officer on 06.12.2010, and the subsequent page continues to

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HC-KAR

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record the same facts. Therefore, Respondent No.1 was unable to prove that the history provided by the claimant was false. The medical records also show that she was unconscious when she was admitted to the hospital. Hence, the contention of the insurer that the vehicle was falsely implicated in this case is not supported by any other material.

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A criminal case was registered in connection with the accident in question. As per Ex.P15-the intimation of the accident was sent to the jurisdictional Police Station. However, the police registered an FIR on 08.12.2010, based on a statement given by one Ramesh, S/o Govindappa, who was not an eyewitness. The statement was recorded accordingly. After completing the investigation, the concerned Investigation Officer filed the chargesheet, marked as Ex.P2, against the rider of the motorcycle, who is the claimant’s husband. This prima facie proves that the accident occurred due to rash and negligent riding of motor cycle by the rider, i.e., the

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HC-KAR

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claimant’s husband. However, since the vehicle did not belong to the claimant & she was a pillion rider & hence, her right to claim compensation remains unaffected.

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Learned counsel for claimant contended that the income of the claimant taken by the Tribunal is on the lower side. Since there was no sufficient material on record, the Tribunal assessed the notional income of the claimant as Rs.5,500/- per month. The Tribunal considered the age of the claimant on the basis of the medical records as 38 years. Therefore, I do not find any reason to interfere with the same and the suitable multiplier applicable is '15'.

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PW.3 has stated about the disability of claimant. However, the Tribunal is concerned with functional disability. Therefore, it assessed the functional disability at 30% to the whole body. Looking at the evidence of PWs.1 and 3, it appears that the disability taken by the Tribunal at 30% to the whole body is just and proper.

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HC-KAR

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Considering the amounts awarded under other

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heads, the compensation awarded under certain heads is on the lower side and needs enhancement.

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On re-appreciation of the evidence and the

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materials on record, the claimant is entitled to the

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following compensation:

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Heads	Amount in Rs.
Pain and Suffering	1,00,000-00
Medical bills	2,64,290-00
Attendant charges, special diet and conveyance charges	30,000-00
Loss of income during laid-up period (Rs.5,500/-x 6)	33,000-00
Loss of future earning capacity due to permanent disability (Rs.5,500/-x 12 x 15 x 30%)	2,97,000-00
Loss of amenities	50,000-00
Total	7,74,290-00
Less: The compensation awarded by the Tribunal	6,50,290-00
Enhanced compensation amount	1,24,000-00

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The claimant is entitled to enhancement of Rs.1,24,000/- along with interest at the rate of 6% p.a.

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from the date of filing of the petition till realization. The respondents are jointly and severally liable to pay the

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HC-KAR

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compensation amount. However, respondent-Insurer is

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liable to pay the same.

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In the result, I proceed to pass the following:

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ORDER

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i) MFA.No.2341/2014 filed by the Insurer is

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dismissed;

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ii) MFA.No.4431/2014 filed by the claimant is allowed-in-part;

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iii) The judgment and award dated 04.12.2013 passed by VII Additional Small Causes Judge, Member, MACT-3, Bengaluru, in MVC No.8517/2010 stands modified;

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iv) The claimant is entitled to enhanced compensation of Rs.1,24,000/- along with interest at the rate of 6% p.a. from the date of petition till its realisation;

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