Sri.Guruvappa Vs Sri Ujjappa

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:4.2.2014 PASSED IN MVC NO.108/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MEMBER, ADDL.MACT, HARIHAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This appeal is filed by the claimant against the judgment and award dated 04.02.2014 passed in MVC.No.108/2011 by the learned Senior Civil Judge and Additional MACT, Harihar (for short the 'the Tribunal').

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The parties are referred to as per their ranking before the Tribunal.

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HC-KAR

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Respondent No.1 is driver of the vehicle,

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respondent No.2 is the owner and respondent No.3 is insurer of the offending vehicle tractor.

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It is the case of the claimant that on 04.01.2011, when he was going by the side of the road, a tractor bearing registration No.KA-17-TA-8832 driven by its driver in a rash and negligent manner, hit him and as a result of which he fell down and sustained injuries. He took treatment and spent huge amounts and is now suffering from a permanent disability. It is also contended that he was aged about 60 years at the time of accident and he was an agriculturist and was earning Rs.15,000/to Rs.20,000/- per month. With these reasons, prayed to award compensation of Rs.10,00,000/-.

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Respondent Nos.1 and 2 did not appear before

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the Tribunal. Respondent No.3 - insurer denied the contents of the claim petition. It was further contended that as per the medical records, the claimant had fallen

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HC-KAR

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from the tractor and sustained injuries. Therefore, he is not entitled to claim compensation. It is further contended that the insurer's liability is restricted to terms and conditions of the insurance policy, including the requirement for the driver of the said tractor to possess a valid and effective driving license. On these grounds, the insurer prayed for dismissal of the claim petition.

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The Tribunal on the basis of the rival contentions of the parties, framed the necessary issues.

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The claimant to prove his case examined five witnesses as PW.1 to PW.5 and marked documents Exs.1 to 16 and closed his evidence. Respondent No.3 examined two witnesses as RW.1 and RW.2 and marked Exs.R1 to R3 and closed its evidence.

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The Tribunal after hearing both sides and appreciating the evidence on record, held that the claimant had sustained injuries in the accident . However, the Tribunal also found that the accident did not occur as

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HC-KAR

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alleged in the claim petition but rather resulted from a fall from the tractor. Therefore, exonerated respondent No.3 from paying the compensation. Assessing the materials placed on record, the Tribunal awarded following amount of compensation:

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Sl.No.	Particulars	Amount (in Rs)
1.	Pain and suffering	30,000
2.	Medical expenses	40,884
3.	Medical attendant charges and transportation	5,000
4.	Loss of income during laid up period (Rs.(Rs.5,000 x 3)	15,000
5.	Discomfort in future life	15,000
6.	Loss of future earning capacity due to permanent disability.	54,000
	Total	Rs.1,59,884

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Heard the learned counsel for the appellant and

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respondent No.3.

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Learned counsel for the appellant relying on the grounds of appeal, contended that PW-3 to 5 are the eye witnesses to the accident. They have clearly stated the date of the accident and that PW-1 was hit by the tractor.

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HC-KAR

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Respondent examined RW-1, who has corrected the mistake stated by the claimant in the hospital. He further contended that due to pain and suffering, the claimant initially gave incorrect information and thereafter corrected the same, this is reflected in Ex.R1. This, however cannot

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be a valid ground to disbelieve the case of the petitioner or reject his contention. During the cross-examination of PW-1, the occurrence of the accident was not at all denied. Similarly, in the cross-examination of PWs-3 to 5, nothing

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was brought out to disbelieve their evidence. Therefore, the contention of the injured that he fell from the tractor and sustained injuries is not acceptable. The Tribunal, however, erred in accepting the same and exonerated respondent No.3 from the liability to pay compensation.

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Learned counsel for the appellant further contended that the amount of compensation awarded by the Tribunal is inadequate. Therefore, he prayed for the re-calculation of the compensation and for awarding a just and reasonable amount.

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HC-KAR

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Learned counsel for respondent No.3

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vehemently contended that the evidence of RW-1 reveals that he has manipulated the records solely to help the claimant seek compensation from respondent No.3. He argued that RW1 had no authority to correct any mistake in the statement given by injured or the person who accompanied him to the hospital. Even during crossexamination by respondent No.3, it was admitted that the history of the injury was not recorded by him, but was based on the information provided by three other individuals. Nevertheless, he corrected the statement and claimed that he had every authority to do the same. However, the said contention of RW-1 raises serious doubts regarding the facts of the accident as stated in the FIR. When wrong information is provided, facts are suppressed and records are manipulated, the claimant is not entitled for compensation. This fact was rightly accepted by the Tribunal which exonerated the insurer from the liability to pay compensation. He relied on the

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judgment of Hon'ble Apex Court in the case of North

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West Karnataka Road Transport Corporation Vs. Gourabai and others¹ . In this case also, the facts are similar, therefore, judgment laid down is applicable to the facts of the present case, and he prayed for confirmation

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of the award passed by the Tribunal in respect of liability of respondent No.3 and for dismissal of the appeal.

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The following questions arises for consideration:

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i. Whether the Tribunal is justified in holding that accident had not taken in the manner as stated in the complaint as well as in the claim petition?

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ii. Whether the claimant is entitled for enhancement of compensation?

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iii. What order?

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Point No.1 : In the claim petition, the

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claimant stated that when he was traveling to Shamshipura Village from Harihar city at 10.30 a.m, at that time, a tractor came from behind and hit him, due to

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1 (2009) 15 SCC 165

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which, he sustained injuries. Respondent No.3 in the written statement at paragraph No.9(2) has stated that the petitioner was traveling in the said tractor bearing registration No.KA-17-TA-8832 and fell from the said tractor and thereby sustained injuries. Thereafter, OPD card and MLC extract were manipulated. It is not in dispute that the claimant sustained injuries involving the said vehicle; However, the manner in which the accident occurred is seriously disputed by respondent No.3.

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Ex.P1 is the FIR, which was registered on 05.01.2011 at around 6.00 p.m. The incident however, had taken place on 04.01.2011 at around 10.30 a.m., indicating a delay of one day in filing the complaint. No explanation is provided for this delay. As per the claimant, along with him three others i.e., PWs-3 to 5 were traveling on the same road and they witnessed the incident. Despite this, it appears that neither the claimant, the witnesses, nor PW1 made any immediate effort to lodge the complaint. Initially, the claimant went to S.S.Institute

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of Medical Sciences and Research Centre, Davanagere.

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Ex.R2 shows that they reached the hospital around 12.45 a.m., on 04.01.2011. RW-1 admitted that he had deleted the earlier words written in Ex.R2 i.e. 'fall from' and added 'hit by tractor'. Ex.R1 is the out-patient card. The said document also reflects this correction and over writing i.e., 'fall from' is deleted and 'hit by' tractor is mentioned. In this regard, respondent No.3 examined RW-1 - Dr. Ramesh Kotvan, who had stated that on 04.01.2011 around 2.20 p.m. he provided treatment to claimant Guruvappa. The said Guruvappa visited the hospital with a history of injuries allegedly caused as a result of being 'hit by tractor'. Prior to his statement, he had registered his name in the OPD, wherein it was mentioned that he fell from the tractor. He further stated that in Ex.R2, earlier it was recorded as 'fall from tractor' and thereafter he himself corrected it as 'hit by the tractor'. It is also pertinent to note that in his cross-examination by respondent No.3, RW-1 stated that he had enquired with

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HC-KAR

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the patient as well as with the person, who accompanied

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him, and he noted the injury history is in Ex.R1 based on that enquiry. He also admitted that although he had not originally written the history of the injury he subsequently corrected it as 'hit by tractor' instead of 'fall from tractor'. He further stated that since the persons who accompanied the injured had informed him that the victim was 'hit by the tractor' and not that he had 'fallen from the tractor, he made the correction accordingly. He did not receive any written request from the injured or his relatives. His authority extended only to correcting the statement. He sent a medical intimation wherein it was mentioned that while traveling in the tractor he fell from it and sustained injuries.

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It is pertinent to note that PW-1, in his evidence, has not state that he provided wrong information to the doctor. Initially he stated that while traveling in the tractor he fell down and sustained injuries. However, he later corrected himself and stated before the

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HC-KAR

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doctor that while walking along the side of the road, a tractor hit against him and that he sustained injuries. Similarly, in the evidence of PWs.3, 4 and 5 and in their cross-examination, none of them stated that PW-1 had previously told the doctor that the entry in the OPD, indicating he fell from the tractor, was incorrect and that he actually was hit by the tractor.

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Therefore, the statement made by RW-1 is not collaborated either by PW-1 or PWs-3 to 5.

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Normally, in the Medico legal cases, if there is any change in the statement, the concerned person who is authorized to record entries in the MLC register must mention the statement given by the victim or the person accompanying him. Such an authority has no right to delete or over write the entries, especially when the statement has already been recorded. In the present case, RW1 had not originally written the history of injury but merely corrected the prior entry. He did not even enquire with the person who initially gave the statement before

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making the correction. As a result the sanctity of MLC register was compromised, which was otherwise a credible evidence. Under such circumstances, RW-1's act of altering the record based on the statements from others and not by the victim is neither proper nor justifiable. Therefore, it appears that the amendment was made as an after thought, possibly with the intention of strengthening the claimants case for compensation. In addition to that, there is delay of one day in registering the FIR. RW-1 has stated that immediately after admission of the victim and before making any correction to the OPD receipt, he had sent the intimation to the concerned police station. If that is the case, it raises the question, as to why the police remained quite. PW-1 lodged the complaint only on 05.01.2011 at around 6.00 p.m. According to the version in the complaint, the claimant was admitted as in-patient in the same hospital. These circumstance create a reasonable doubt that, just to claim compensation from the insurer, a new case was made out by the claimant and

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he had not approached the Court with clean hands. The Tribunal though accepted such possibility, did not discuss these facts in light of the relevant material on record, yet has arrived at a correct conclusion. In view of the said reasons, the finding of the Tribunal in this regard is acceptable. Accordingly, I answer point No.1 in the affirmative.

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The injured had sustained fracture of the left ankle. Medical evidence including the x-ray and the testimony of PW-2 corroborated this fact, which was accepted by the Tribunal and not seriously disputed by the respondent. As per the evidence of PW-2, the claimant has been suffering from permanent disability to an extent of 38% to the whole body. Admittedly, he had not treated

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the claimant at the time of accident. However, considering the materials available on record, the permanent disability by which the claimant is suffering was rightly accepted by the Tribunal at 10% and it does not call for any interference. Accordingly, the claimant

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was earning Rs.15,000 to 20,000/- per month in agricultural activities as well as coolie and milk vending. The Tribunal has taken income as Rs.5,000/- per month. There is no reliable materials on record to believe that the claimant was earning Rs.15,000 to 20,000/-. Therefore, notional income of the claimant has to be considered. As per the chart prepared by the Karnataka Legal Services Authority, the notional income of the victim of the accident of the year 2011 is Rs.6,500/- and the same could be applied to the facts of the present case. There is no dispute regarding the multiplier '9' since the age of the claimant was 60 years at the time of the accident. Accordingly, the income of the claimant is taken as Rs.6,500/- per month. Looking at the contention of the appellant, the compensation awarded under the head 'loss of future earning capacity due to permanent disability, attendant charges, special diet and loss of income during laid up period and loss of amenities which appears to be

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on the lower side, which calls for interference by this

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Court.

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compensation is recalculated and enhanced as under:

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Sl.No.	Particulars	Amount (in Rs)
1.	Pain and suffering	30,000
2.	Medical expenses	40,884
3.	Special diet, attendant charges, conveyance charges	25,000
4.	Loss of income during laid up period (Rs.(Rs.6,500 x 3)	19,500
5.	Loss of amenities	25,000
6.	Loss of future earning capacity due to permanent disability. (Rs.6500x12x9x10%)	70,200
	Total	2,10,584
	Awarded by the Tribunal	1,59,884
	Enhancement	Rs.50,700/-

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The claimant is entitled for enhanced amount of

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Rs.50,700/- along with interest @ 6% p.a on the enhanced

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amount of compensation. Accordingly, the following:

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ORDER

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i. The appeal is partly allowed .

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HC-KAR

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ii. The impugned judgment and award dated 04.02.2014 passed in MVC.No.108/2011 is modified.

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iii. The claimant is entitled to an enhancement of Rs.50,700/- in addition to the amount awarded by the Tribunal with interest @ 6% p.a from the date of the petition till its realization over the amount awarded by the Tribunal.

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iv. In the above said paragraph, it is held that, the claimant while traveling in the tractor fell and sustained injuries. Therefore, respondent No.2 - owner of the vehicle is liable to pay the compensation. Respondent No.1 is the driver and hence, respondent No.2 - owner of the vehicle is liable to pay the compensation.

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v. Remaining portion of the award passed by the Tribunal regarding release and deposit are not disturbed.

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