IN THE HIGH COURT OF' KARNATAKA AT BABIGALORE DATED THIS THE 26*" DAY OF MAY 20} 1 BEFORE THE HONBLE MRJUSTECEI, SUBHASH 3.33;): i' MISCELLANEOUS FIRST APPEAL NO.431t3/i20€3j3 " QALV MISCELLANEOUS FIRST APP15:;AL»--No.:i52?7"[J~2"r;nV8 i. 'V IN M.F'.A.N0.ef1~819/2008 BETWEEN: Bajaj Allianz. General Insurance Co. Ltd., Divisional Office, NCL353, ? ; Sri. Hari Complex, Seetha Vi1a"s.Road Mysorew 570 024 1 . .. By NO.105A, Cea1"s4P}a;éa, 3;._S'E1o:5r,"= 136, ResidenCy«*R0adf_.5;'. 'V __ Banga10re--~ 560 025. " By its Manag€:r."=._ =:.,__ _ _ = ~ .. APPELLANT (By Sri. O:'§\!Iaf_Lc:217V1V, M _ " ' AND: _ V 1 . Fgiiiialingaiéthé H V' . ., ,3§E..+.}7%ars" ' ---------- ~ " V ' V. Sfo Nnégéggwda @ Guddigowda * j}'*Eu1'i'igéMr§:'pg4ra}, M13. Halli Post 'MaCi':ii1;j_tq,'V'§\,~éi'andya Dist; _2, "'§::.K,._:;me'sha, M33013, .A [LS/okiemchaiah V V 2.5, Lakshmanaiah Redd}? Building ' Basavanapura, Barmerghatta Barzgaicsre ~ 560 £383 .. RESPQNQENTS u SEEEL Pfaseetha C2, Aév. far R}: R2 Serveé} JUDGMENT
These two appeals arise out of the judgmeniend “5′..VV:V’£1_:(:{§’t’___iV1;1’_
M.V.C.Ne.158/2007′ dated 28.12.2007men the~’i::e:”1jjo{“*2~iZ1.A5c,fi*.;u,7-
Maddur.
2. M.F.A.N0.43i9/2008* is4&V”.”bj;I 2
M.F.A.No.2527/2008 ie by the iviasiiiquestioned
the judgment and award liability and
quantum of compensation has sought for
enhancement of c;0n5ipe’i1sation. –.
3. The faet§*»vieae1irig’tothese apfjealseéife:
The e_ia,irnant eiivstainecigrieyousi injury in a road accident
that 0eeui?i’ed_ abnut 3.30 p.rn., he was moving
on the iefi isidieieofi Maddur~i\/Iaiavalli road near
Sushee1g1I1inia’s ‘V i’z1n%:1′,’1 a’V’Bnjaj Disenvery meter bike bearing
:’v’._Nn;I{A’4i5i/E’K4rfiQ38 eainew in a rash and negiigent manner and
finished uijhe.:~*eIaimant, as a resuit of which, he feii down.
i he shifted to Maddur Government Hespitai, from
” .i_h’e1’e he shifted in KIMS Hespitai, Bangiaore.
He was treated as inpatieni fer about three months.
‘-7i7he:’eeii;ier aiso he was under ireainieni. F :31’ the ingury, he was
“–4.Ve§iVei’e1:eei and {he Deeier has epineé ihai {he eiairniané, has
beeozne pa§’2:;;:2ie§’ie ané has ins: seneaéien give? heih {he iewei”
insureii ” L.
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limbs and as a result of which, he cannot sit or stand on his own.
He has opined that there is 100% disability. The ‘l’ribu__r1al on
appreciation of the evidence held that the el21ir:1ant is entit-lel(l_ for
Compensation of Rs.l5,l5,=f§~23/– with 6%
unsatisfied with the same has Sought for»errhahtiemerttl”whereas;’V.
the insurer had challenged the same thee grolt:.r1’d.’of
well as on the quantum of eompe’r1sa_tion.” V’
5. Sri.O.Mahesh, learned Colineel appearifighw-fofltéhel insurer
submitted that, the accideftt, p.rn. on
6.2.2007 on Madd1;r~Malayol’ltA._ro.étet»A}Sjoeheelamma’s land.
The claimant was; to: ‘at 6.30 pm. and the
complaint by the brother of the
elaimant.:vVhV’;lliou:gv.ih_v evidence has stated that,
he was :;§L:e£1t¢ Hospital, no records are
produced to Show ae’V–_to7ybvl”1~:{lt was the nature of injury and the
aecidehtgv——–E-“is only at 8.30 pm. when the claimant
VX3738′ Hospital at Bangalore, it is mentioned as
RTAA certificate – EXPB does not even hear the
Vehicle’ :3.trrr1ber, place of occurrence or any details as regard to
éteejelertt, As an after thought, brother of the claimant has
I’ 3 eomplaiht on 8,2.2i3(}?. The Complainant; M brother of the
7.eEa.irr1a:zt; though has giver: the ntzroher of the vehiele thvoiveet in
the aeeiderzt as Kéyfit ;’ its the ez:3r:2§Ea§r:t_ ‘oar; he has not
A 3 ..
given the same number to the hospital. It has come in the
evidence that the claimant was taken to the hospital at Bangalore
by the eemplairiant, the hoepital though has 111ent,ionedV–ae RTA
case, but has not treated as MLC nor has informeet
The brother of the Claimant eoutd not have
ihfomhing the hespttai authorities as ‘”:’egard~’_’t0_ riatti’:e’i’v.ofV ‘ ;
accident and the vehicle involved. xfiactithiat
not bear the vehicle number, faeethat dated V
8.2.2007 and further, the spet~it1ah.aza1;’ “is.._HpVrepared on
19.2.2007, the seizure maha1:7Ja1= on 19.2.2007, in
the seizure mahazar’ it of the vehicle
brought the the was seized by the
Police, it the owner came and
pr0dueed:’the–_ these documents, he submitted
that, it creates’ seridus aisdito whether the scooter referred to
_ in the’»(:.§}:3’i*i1p1aint Wasiifealijg invoived in the accident, if the scooter
vihx«t31t}ed,_h:fiQthing prevented the brother of the claimant to
trif:)t*tt:_ authorities and file a eompiaint immediately
eh the’«..sa::_ie’ He further submitted that, PWQ ~ Doetez’ is an
it Surgeen, he is not a eempeteht Deeter to speak. the
The hospital reeerfi ehewe that the etaimant has
,:§:_;if_§§ered paraptegia aha it eztty shame that he has Zest seneatieh
” ~31} the §}{?:t°tf§{}Y2 et” the héidjgg pa1*tteu}at’§}; teeter ttmht, there is no
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100% disability. Doctor – PW~2 has also not stated as to on what
basis he has determined the disability at lOO’3/:s an<iV.-'-*1i1*ther
submitted that RTC produced at Exs.P1? to P32,
stand in the name ef the elaitnant. The ine:_jnf'1eV.eeifti'fieate*.
produced at Ex.l3'i6 does not prove the"'ineen:€_e
Even assuming that the Claimant has 'sni"i1e:fed plarapIegia;vl'l_it.tl:ces
not mean that there is 100% disahiiliity" not there levssef iheorne. L'
as the lands could be c1i_ltiV'ateti_..nfi'th the Veithers. He
further submitted that, the'*ell0etet_ competent doctor,
his evidence eught_'i1et the Tribunal. He
relied on the that, PW~l in his
evidence has to Macldur Government
Hospital iavanel — was taken to KIMS Hospital,
Bangalore, l't*._eLwever;. are produced tn show that the
claimant was tak'en_lto1lvIa:ldur hospital. If really he was taken to
and tteated, the claimant eould have produced
scmgieficleeiiineiitsand it would have revealed the truth as to
whether the' sustained by the elaimant was on account of
aeeiclent or net.
V V 6, As far as quantum of compensation is concerned, he
___”:.snh;nitted that, the Tribunal has erreneeusiy awarded higher
Weenipensatisn even azithetzt due eegard to the eviéenee en reeeré
ans snhniitteé that the inveivenien: at the vehicle has set been
W 7 ,
proved by the claimarit, as such, the insurer cannot be hel_r:1__ liable
to indemnity the Compensation.
7′. On the other hand, learned Counsel appegzarihg
Claimant submitted that. PW-i in his evidence has he,
was admitted to Maclclur Heepital iIiiti;e’tll},’§_:lt3’t::§?.’et’tiS§i;’ of:
sf injury? he was immediately shifted ta Bangalorie T.’:”1’I1″Cl théit
how he was brought to Bangalorelrleepital. li”‘.’_.lV!2 in hie
evideriee has eategerieally ‘jS’tett;ed_.”thettt-Itjelletiimant fives éttimitted to
the hospital on 6.2.2007: it t’y;r;§$1’_v1.injur:es i.e., (1)
compression fra<§:t::itet_'of u with spinal cord
eompreesiori ltetati' paraplegia with bowel
and and the contusion were
C€)Y1fiI'II1€(:ll"Qf1 was operated on 15.2.2007
with deC0mpi7ese.i0h. of " stiinal cord and posterior spinal
instrumientetien atidiVv_stahilitzation with Steffi instrurrietitatiori
'~;,1nde::_, genleralétilanaesthesia. The patient was discharged on
ariviée to sit with K.T.Brace more around in wheel
chair, "*§aS§:ei\'/8;..:tTi€:»V€1fr1€I1'tS of the both lower limbs and bowel,
" -hletclder EiI1§i:baCk Care, Patient was eoiriirig for follow-up cheek
_ l "tipl.AA3.e,eiitpatier:tt He epiried that there is iOO% disahiiitj; ta the
.___"§érhel§;e body.
.§{V€
lg-
8. Learned Counsel for the claimant also relied en the
observations made by the learned Judge ef the Tribunal in the
Course of reenrdiiig the evidence of PW–l. Learned Qeirzinsel
submitted that, the Tribunal has Observed that the gas
not in a position to give his evidence by entering __int”-:2. th_e’*wiitneeis
box as he was brought an stretcher bygfixse neesensi.’ Sirieevvhe was
not in a position to sit or stand. he Was”-pern1itte¢;l”vtC’ gix:e”vhis.t
evidence by lying on the streteherbeiere the’*–enurt.;i_= ‘l:’helVVas}l;)ect of’
claimant was taken to Ma.d:1}ir notlbeenlehalleiiged
in the «:a1:ninati0n. the Complaint
is concerned V” that, after the
accident, his _l§¢ to the Bangalore
hespital ::§:mn1eriViahtely*-adrhitted and because of the
serious nature’ vtreatrnent was given to PW~l. in
this prneess;,__there’ ‘delay in filing the complaint.
VNeVerth_elesie., after tiays of the accident, Complainant ~
A’~elainiant’sbretgher went tn the Police Station and filed a eeinplaint
as” he has stated that, his brother sustained
it ggriexggiiig en aeeennt of rash and negligent driving ei”
it :v’.v4A4″se’Q:)te%r bearing Nn,l<'A~5l/K4238 and he was attending to his
hn3th'e:%,A'las his brether had last sensatinn in bath the legs and as
M there was a éelay in filing the complaint,
taken only Rs.7'G§O00/~.
– 9 flA
9. As far as compensation is Concerned, learned Counsel for
the claimant submitted that, PW~l in his evidence has stated
that, even after the operation, he cannot stand, he eaifinoteven
control urine, urinary pipe is fixed and the same”‘h’a~s__l'”t:o.__lee
changed daily by going to Madclur Gevernment
in a week he goes to KIMS Hospital,::pl3angal1ore_.:
treatment as outpatient. He hires _1uggage’a..uto ‘t§):.ll’f.El\%f;l’. Helostg
the sensation in both the legs. got acres land, the
entire agricultural work wa3._&_Contro1l’eti:’ said land
he has grown paddy, tender Coconut
business apart ls-usiness. He has
grown sugarcane disability, he is not in a
position tQ.euli_it}ate Vl.ar;tlg onaeeount of which, he has lost
the ineorfgg, r ‘ submitted that, though the
Tribunal hasVV”aeCeptecl ::lisability at 100%, that the Claimant
requires;perrnanehtassistanee to attend to nature Call and day-J
A’~i;_o–.i:la3;., aetlivt/’itie.sv;”still has not appreciated the cost and also future
nietliealpe>§pei1ditui’e and has awarded meager compensation on
V these heads.’ “As far as income is concerned, the inoorne of the
it “‘l:v'”.4A”clgaimant “not less than Rs.liO0,000/- per anhurn, but the
%
E:
1
it
53;»!
I
E» :5
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13. As far as vehicle number is concerned, claimant
himself has stated that, the vehicle, which hit him, is hearing
No.KA~5i/K4238. it is not the ease of the insure4ri~.iii.e_t~._ihe
motor eyele involved in the accident was heiienging hie.’
person and there was eoiiision. In turnipihe evidence shows (her ,
the vehicle belongs to a person in Bangaie.-i*e,. 3 Ji:siA.beea”nse ti”T;€],’€
is a delay in filing the eompiairzi,-.ii canriei be thathiheie.
claimant has not suffered accident
involving the vehicle in other evidence led
or shown by the insurer. if is appreciated,
PW~1 has ” vihrnrnediately after the
accident, he Hospital from
where and that aspect of the
matter is ieross-examination of PW~1. Prima
facie it_sh0Ws’~ih::ii_the’=_aee’ieieni occurred near Maddur. The
PWA-2 ~x’D’oe-tor clearly shows that he had treated the
‘eiairneitei evidence, he has stated that the ciairnani: was
inpeifiieni, operated and has suffered paraplegiai iess 0f
iesensatienkiri heth the legs, he has been advised is move on wheei
eannei sit or stand er Walk. This is fortified by the
___”‘i’.ehsei’vaiioen hf ihe iearned Judge ef the Tribune} iha: PW-i W
iéfieieiniani was V§3£’°{)’L£§%:?’i’§. en sireieher and {he iearneé Judge fesiinfi
iihei rzeiiher he eeuiei sié; zier eeuie SiE§iE{f§ arié was eiiiiweé {he give
, l4 –
Having regard ta this evidence on record and having regard to the
medical evidence showing that the elaimant hasulabeeome
paraplegic and he Cannot stand and sit, in such ei;’e’u:iis.tah{_:es,
the elainiant requires continuous treatment and..alS’Qa’V.pers0n’
attend to him. It is in these eireunistaneepslt {the eVidehee_phas
be appreciated and eornpensatien, has grantedt’
iii. The Tribunal has aeeepted that sthe evlairnanit has’
become lOO% disabled. New Atahat is the
Contribution the claimant liave’ the family and also
to the agricultural work. only person to
cultivate the llagjreatei’ impact on the
income of as er; ‘the Cultivation, if it is
cultivatedlthrcitigh;sgrhe then there would be some
loss of :nt§c.:;_1e.V stand in the name of the
father QI.’_Y10li. lheing .theh’sc>n”,: the Claimant is entitled by way of
“V’s:ia:ev-la} athe1*Vgise”‘tl’ie lands available to the family and his
of agricultural work is essential for deriving
._ ‘income. if the service of the claimant is taken
alexgen at l?sl.%%,500/- per month, the age of the Claimant being 34
“the” elaimant is entitled for Rs.8§64~,OGO/– {Rs.4,500/-
as against Rs. lO§50,GOQ/» awarded by the Tribunal. As
‘afar less at aizieziitées granted by the ‘l’:*ibti:1al at Rs. ili.Q§,€30Q/~:
pain aiad suilileringg at R.sil,§G£CiG€3f»: §l”<'11'1Sp{}l'°l£ilLl{}i"E charge at
_ –
Rs.52,200/~, as the elairnant had hired luggage auto and the said
person has been examined as PW~3; further the niedieai
expenditure at Rs.i,O’?’,i223/~ are not on the higher
any amount of eorriperisation would not bring back’ hisVV’gioi;;_”of
his past life. As regard to the futurev-;rn’ed–i.oa1eéexpendiiure,ffodod ‘
and nourishment during treatmehti adttiendant. 2
compensation appears to be on ti1(i:4′”I\’T>_\?x7€I’ side.’ _The that the V
claimant was in hospital for aboututhree-,rnonths,_thereafter he
had gone as outpatient and on treatment,
compensation towards. attendant: and nourishment
and further opinion, requires
enhancement: ” V _
15,” Considerinég ‘ thensarnegml find that, instead of
Rs.70i0OOz/-~. medical expenditure, same is
enhanced to 1;'()<I),Q0A(A)–,/_'d–V'i~.';e., additional Rs.30,000/~; towards
dvdatitenddaiiit '\'rV'\7'}l'.'i$I1v is inevitable and which is required to
'he' to go to hospital, he requires to engage a
require additional sum of Rs.-40iO00/~.
Fnrtheér, ..io’oddand nourishment, ii’ advised, requires another
Hence, eiairnant is entitled for additional surn of
iiowever, as against toss of future earning of
“”vfaé.’:oiso,ooo;-i the same is reduced to Rs.8i!E34ii3€3i3;’~. Henee, in
nay ogiiniorr, it is just and &1}§3?G§}Ei8i€ is reduee the eorngierisation
-15′-
by Rs.1,01,000/~ i.e., claimant is entitled for Compensation of
Rs.14,14.51~23/~ as against Rsi15¥15,=’–}23/~ awarded by the
Tribunal wiih interest the/ream.
Ae::.4~319X2{}O8 filed by
allowed in part. M.F.A.N0.2527/2008 filed
dismissed. The amount in deposit be i.1_”a11;<;fe:f:'éd_i0._th.éTribun_a}'.
333%
KNM/~
