Sri Sridhar G Vs the Director Karnataka Government Insurance

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 19.08.2013 PASSED IN MVC NO.2356/2012 ON THE FILE OF V ADDITIONAL SMALL CAUSES JUDGE AND XXIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, MEMBER, MACT, COURT OF SMALL CAUSES, MAYO HALL UNIT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL AND

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HON'BLE MR JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)

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“Whether the compensation awarded to the claimant in M.V.C.No.2356/2012 by V Additional Small Causes Court and XXIV Additional Chief Metropolitan Magistrate, MACT, Bangalore is just?” is the question involved in this case.

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Appellant was the sole claimant and respondent Nos.1 and 2 were respondent Nos.1 and 2 in M.V.C.No.2356/2012 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the Tribunal.

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On 25.02.2012 at 10.00 p.m. when the claimant was travelling as pillion rider on motorcycle bearing Registration No.KA-05-HR-2178 with rider Govindaraju near K.R.Road, Bangalore, Mahindra and Mahindra Ambulance bearing Registration No.KA-01-7522, hit motorcycle KA-05-HR2178. Due to the injuries suffered in the accident, Govindaraju died on 02.03.2012. The present appellant also sustained

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grievous injuries. He was treated as inpatient in Bangalore Hospital between 26.02.2012 and 10.03.2012. At the time of the accident, respondent Nos.1 and 2 were the insurer and registered owner of Mahindra and Mahindra Ambulance bearing Registration No.KA-01-7522.

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Legal representatives of deceased Govindaraju filed M.V.C.No.2355/2012 and the claimant filed M.V.C.No.2356/2012 against the respondents alleging that the accident occurred solely due to the actionable negligence on the part of driver of ambulance bearing No.KA-01-7522. Legal representatives of deceased Govindaraju claimed that they were depending on his income and they have lost their breadwinner. Whereas the appellant/claimant contended that on account of accidental injuries, he has suffered permanent physical disability, loss of future earnings and he had spent huge amount for medical expenses. Therefore, the claimants in both the claim petitions claimed compensation from the respondents. Appellant/claimant claimed compensation of Rs.20,00,000/- from the respondents.

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Respondents contested the petitions denying actionable negligence on the part of driver of Ambulance,

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income, permanent physical disability of the claimant and their

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liability to pay the compensation.

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The Tribunal consolidated M.V.C.No.2355/2012 and M.V.C.No.2356/2012 and recorded common evidence. On behalf of the claimants, PWs.1 to 4 were examined and Exs.P1 to P48 were marked. Respondents did not lead any evidence. The Tribunal on hearing the parties in M.V.C.No.2356/2012 awarded compensation of Rs.2,83,000/- payable by respondent Nos.1 and 2 with interest at 6% per annum. The Tribunal referring to the evidence of PW.3/Official of the claimant’s employer held that the claimant has not lost future earnings due to injuries suffered in the accident. The Tribunal awarded compensation of Rs.2,83,000/- on different heads as follows:

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Sl. No.	Particulars	Compensation amount in Rs.
1	Pain and Agony	25,000/-
2	Medicine expenses	2,00,000/-
3	Conveyance	1,000/-
4	Food and nourishment, attendant charges	2,000/-
5	Loss of income	50,000/-
6	Loss of amenities	5,000/-
	Total	2,83,000/-

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Claimant has challenged the said award on the ground that the compensation awarded is on the lower side.

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Sri Manjunath H, learned Counsel for the claimant referring to the evidence of PW.4/the doctor submits that his evidence clearly shows that the claimant suffered 50% disability to the whole body. Therefore the Tribunal committed serious error in not awarding any compensation on the head of loss of future earnings. He submits that the compensation awarded on other heads is also on the lower side and the Tribunal has failed to appreciate the evidence judiciously. Thus he submits that the compensation awarded needs to be enhanced.

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Per contra, Sri K.R.Rajendra, learned Additional Government Advocate for respondent No.1 submits that the evidence of PW.3 and claimant’s own witness shows that even after the accident, the claimant continued in service and he was even promoted as Senior Medical Record Technician. Therefore the Tribunal was justified in holding that there is no loss of future earnings. He submits that PW.4 was neither neurologist who issued Exs.P46 and 47 nor psychologist. Therefore he was not competent to assess neurological or psychological condition of the claimant. Therefore, Tribunal was justified in rejecting such disability. He submits that the compensation awarded is just one and there is no merit in the appeal.

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Analysis

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Respondents have not challenged the findings of

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the Tribunal that on 25.02.2012 at 10.00 p.m. accident took place involving motorcycle bearing Registration No.KA-05-HR2178 and Mahindra & Mahindra Ambulance bearing Registration No.KA-01-7522. The finding that the said accident occurred due to actionable negligence on the part of driver of said ambulance is not challenged. The findings that in the accident Govindaraju died and the claimant in MVC No.2356/2012 suffered grievous injuries is not under challenge. It is also not disputed that at the time of the accident, claimant was aged 35 years and he was working as Medical Record Technician in St. Marthas hospital and that his salary was Rs.12,260/- per month.

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The evidence of PW.4 and Ex.P8 discharge summary show that the claimant was admitted in Bangalore Hospital on 26.02.2012 and on conducting investigation he was found with the following injuries:

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(i) Abrasion over left knee;

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(ii) Head injury with

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(a) Subdural haemtoma,

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(b) Fractures of right tempero parietal region

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(c) Compression of right lateral ventricle and shift of midline structures.

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(iii) Haemorrhage seen in the sylvian fissure and quadrigeminal plate cistern-subarachnoid haemorrhage, basal cistern are effaced.

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The evidence of PW.4 and Ex.P8 show that the

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claimant underwent parietal craniotomy with near total removal of EDH done under general anesthesia on 26.02.2012. The case sheet of the claimant reads as follows:

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“On examination he was irritable, restless, conscious and disoriented, no focal deficits. CT Scan revealed Hemorrhagic contusion left temporal region, subdural hematoma right tempero – parietal region, fractures right tempero – parietal region and right zygomatic arch, intra cranial soft tissue swelling right parietal region and periorbital region. Patient’s attenders were explained about the condition and the need for craniotomy SOS in case of deteriorating. Next day he had to be taken for right parietal craniotomy with near total removal of E.D.H. under GA. Post operatively he gradually improved and was shifted to the wards. He was neurologically stable .”

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Claimant was discharged on 10.03.2012. Medical

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evidence further shows that he was in intensive care unit for six days. As per the evidence of PW.4, when he examined the claimant on 12.06.2013, the claimant had complained head ache on and off, unable to concentrate, confused about things, loss of memory, indifferent, lack of initiative, sometime irritable, unable to read and write correctly ideational and

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fluency of words. The evidence goes to show that the claimant had undergone lot of pain and suffering. PW.4 in his chief examination filed by way of affidavit examined the claimant for neuropsychological test and found him with 50% disability to the whole body. He himself admits that he had not done any specialization in neurology. His evidence shows that he was working as Assistant Surgeon in Bangalore Hospital. In the cross-examination, he states that his qualification is MBBS and MD Specialist in forensic examination. He was neither neurologist nor psychologist for assessing disability as stated in Ex.P46.

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The claimant did not choose to examine neuro surgeon or psychologist who allegedly treated him. Therefore the Tribunal was justified in disbelieving the evidence regarding 50% disability to the whole body. Further the claimant’s own witness PW.3 has deposed that the claimant joined St. Marthas Hospital as Medical Records Technician. The evidence of PW.3 coupled with records produced by him show that the claimant joined St.Martha’s hospital on 18.01.2000 as Medical Records Technician and at the time of PW.3 tendering evidence, claimant was serving as Senior Medical Records Technician in the same hospital. He did not whisper anything about salary or

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position of the claimant was reduced. Therefore, Tribunal was justified in holding that due to the injuries suffered in the accident, the claimant had not suffered any loss of future earnings.

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PW.3 deposed that the claimant was not paid salary from the date of accident till 12.06.2012 and his absence was treated as ESI leave. Therefore it can be said that there was loss of income during laid up period of four months. Though learned Additional Government Advocate submits that during ESI leave he gets ESI benefits, that cannot be deducted against the compensation payable on the head of loss of income during laid up period in view of the judgment of the Hon'ble Supreme Court in Sebastiani Lakra v. National Insurance Company Ltd.¹

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Since the claimant had suffered head injury and he was unable to attend to his duties for about four months and considering the medical evidence, it can be concluded that he was not able to enjoy amenities like any other normal person, at least for about 4 months. Therefore, Tribunal committed error in not awarding any compensation on the head of loss of amenities.

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1 AIR 2018 SC 5034

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Medical bills produced by the claimant pertains to

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the period of his treatment. The Tribunal took very rigid view in awarding compensation of Rs.2,00,000/as against Rs.2,39,271/-. Therefore the compensation on the head of medical expenses can be awarded at Rs.2,40,000/-.

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Compensation awarded on the head of diet, attendant charges and conveyance is also on the lower side, considering the fact that claimant was treated as inpatient for 13 days and the nature of injuries and treatment. For the aforesaid reasons, the compensation payable is reassessed as follows:

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Sl. No.	Particulars	Compensation amount in Rs.
1	Pain and suffering	60,000/-
2	Loss of income during laid up period (Rs.12,500/-x 4)	50,000/-
3	Medical expenses	2,40,000/-
4	Loss of amenities	1,00,000/-
5	Diet, food, nourishment and attendant charges	25,000/-
	Total	4,75,000/-
	Less awarded by the Tribunal	2,83,000/-
	Total	1,92,000/-

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For the aforesaid reasons, the appeal deserves to be allowed in

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part. Hence, the following:

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ORDER

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The appeal is allowed in part.

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Claimant is entitled to enhanced compensation of

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Rs.1,92,000/- with interest thereon at 6% per annum from the date of the petition till realization.

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Respondent No.1/Insurer shall deposit the said amount before the Tribunal within four weeks from the date of receipt of copy of this order. On such deposit, the Tribunal shall digitally release the enhanced compensation to the claimant on furnishing required documents.

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Registry shall transmit the trial Court records to the Tribunal forthwith.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/(C.M.POONACHA) JUDGE

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KSR

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List No.: 1 Sl No.: 44

Sri Sridhar G v. the Director Karnataka Government Insurance

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Sri Sridhar G v. the Director Karnataka Government Insurance

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