w w w . L a w y e r S e r v i c e s . i n



K. Lokesh & Others v/s United India Insurance Co. Ltd., Represented by its Manager, Bengaluru & Others


Company & Directors' Information:- UNITED INDIA INSURANCE COMPANY LIMITED [Active] CIN = U93090TN1938GOI000108

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U93000MH2014PTC258844

Company & Directors' Information:- J B UNITED PRIVATE LIMITED [Active] CIN = U74999MH2014PTC258844

Company & Directors' Information:- UNITED CORPORATION LIMITED [Liquidated] CIN = U99999TN1942PLC003159

    M.F.A. Nos. 8348, 6845 of 2012 (MV)

    Decided On, 11 November 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE H.P. SANDESH

    For the Appearing Parties: A.K. Bhat, Advocate (Physical Hearing), O. Mahesh, Advocate (Video Conference).



Judgment Text

(Prayer: This M.F.A is filed Under Section 173(1) of MV Act against the judgment and award dated 09.04.2012 passed in MVC.No.660/2011 on the file of the III Additional Senior Civil Judge, MACT, Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.This M.F.A is filed Under Section 173(1) of MV Act against the judgment and award dated 09.04.2012 passed in Mvc.No.660/2011 on the file of the III Additional Senior Civil Judge, Member, MACT, Bengaluru, awarding a compensation of Rs.14,26,300/- with interest @ 8% p.a. from the date of petition till deposit.)1. These two appeals are filed challenging the judgment and award dated 09.04.2012 passed in MVC No.660/2011 on the file of III Additional Senior Civil Judge and Motor Accident Claims Tribunal, Bengaluru (SCCH.18) (for short 'the Tribunal'), by the Insurance Company in MFA No.6845/2012 questioning the fastening of liability and quantum and the claimant in MFA No.8348/2012 questioned the quantum of compensation awarded by the Tribunal.2. For the sake of brevity, the parties are referred to as per their original rankings before the Tribunal as claimant and respondent-Insurance Company.3. The factual matrix of the case is that on 5.10.2010 at about 6.20 p.m. on Bengaluru - Mysuru Road, near Reshme Goodu Hump, Ramanagar, the claimant was proceeding as a pillion rider in motor cycle bearing registration No.KA-02-EZ- 2311 and the same was ridden by its driver at a high speed in a rash and negligent manner endangering the human life and ran over the hump, as a result of which, the claimant knock down from the motor cycle and sustained grievous injuries to his head, right ear, nose and other parts of the body. The claimant was shifted to BGS Global Hospital immediately after the accident for treatment. He was inpatient from 05.10.2010 to 23.11.2010 and also undergone several operations for the injury. The claimant was in ICU for a period of one month. He also took regular follow up treatment after discharging from the hospital. The claimant further readmitted several times to the hospital and subjected for surgeries, for which, he spent huge amount towards treatment, medicine, food, conveyance and other charges. He also lost an academic year on account of accidental injuries. Hence, the claim petition was filed claiming compensation.4. In pursuance of the said claim petition, notices were ordered against respondents and respondent No.1 - Insurance Company appeared through its counsel and filed its written statement, wherein it has taken up a defence that the claimant was a pillion-rider and hence, he has not been covered under the policy. The liability is subject to the terms and conditions of the policy. It is also contended that as the terms and conditions of the Insurance Policy has been violated, the liability cannot be saddled against the Insurance Company. It is further contended that there is a delay of 30 days in lodging a complaint, which has not been properly explained by the claimant. The Insurance Company also denied the age, income and occupation of the injured, nature of injuries sustained by him, nature and period of treatment undergone by him and the amount spent for such treatment and so also the other incidental expenses.5. The respondent No.2 - Owner did not choose to appear before the Tribunal though served with notice and contest the matter and hence, he placed ex-parte.6. The claimant, in order to substantiate his claim, examined himself as PW.1, the doctor as PW.2 and another witness as PW.3 and also got marked documents at Ex.P1 to Ex.P29.7. The respondent -Insurance Company also examined one witness, who is a Medical Records Manager from BGS Global Hospital as RW.1 and got marked documents Ex.R1 to Ex.R3. The Tribunal, after considering both oral and documentary evidence, allowed the claim petition in part granting compensation of a sum of Rs.14,26,300/- with interest at the rate of 8% per annum.8. Being aggrieved by the judgment and award of the Tribunal, the Insurance Company in MFA No.6845/2012 would contend that the Tribunal ought to have seen the claim petition being bad for non-joinder of proper and necessary parties as the alleged rider of the motor cycle on which the injured/claimant claimed to be a pillion-rider at the time of the alleged accident on a road hump when breaks were applied. The Tribunal ought to have seen that there was no compliance of mandatory provisions of Section 134(c) of the Motor Vehicles Act or Section 158 (6) of the Motor Vehicles Act.9. The main contention of the Insurance Company is that the Tribunal ought to have seen that the alleged accident had taken place on 05.10.2010 at about 6.20 p.m. on Bengaluru - Mysuru Road and injured was taken to BGS Hospital and father of the injured choose to lodge complaint to Ramanagar Police only on 6.11.2010 at 8.45 a.m. i.e., after the delay of nearly one month and treating hospital did not send any information to jurisdictional police since the injury sustained by the injured was due to self fall while riding a two wheeler and sudden break and the said aspect has not been considered by the Tribunal. The other contention of the Insurance Company is that the Tribunal ought to have seen that spot sketch has been prepared at the spot on 6.11.2010 between 9.20 to 10.15 a.m. in the presence of an alleged eye witness Mr.S.Krishna and the claimant did not choose to examine the alleged eye-witness. Further, the claim details prepared in terms of Ex.P2 establishes that the insured motor cycle was in the compound of BGS hospital and hospital record would reveal that the injured was brought by one Mr.Abhi on 05.10.2010 at 7.05 p.m. and this witness also not examined to prove the manner of alleged accident and who was riding the insured motor cycle at the time of the alleged accident. The injured did not choose to name the alleged rider of insured motor cycle and also did not choose to examine him who would not have escaped unhurt in the alleged accident. The observation and reasoning of the Tribunal that Ex.R2 helped the injured is erroneous.10. It is the further contention of the Insurance Company that the Tribunal has committed an error in taking the whole body disability of the claimant at 25% when the doctor who has been examined as PW.2 was not a treated doctor. The disability so assessed by the Tribunal is also not based on any material and not much of functional disability.11. It is the further contention of the Insurance Company that the Tribunal has erred in holding the income of the injured at a notional sum of Rs.4,000/- per month who was stated to be a student and aged about 19 years having no income at all and compensation awarded under other heads are also excessive.12. Learned counsel appearing for the Insurance Company would submit in his oral arguments that the very claim petition is not maintainable since the same is filed with an intention to commit fraud on the Insurance Company as well as on the Tribunal. The rider of the motor cycle was not made as a party to the proceedings, the injured remained absent and there was a delay of nearly one month in lodging the complaint and so also the eye witnesses were not examined. Ex.R2 the document marked on behalf of the Insurance Company shows that one Mr.Abhi brought the injured to the hospital and he has not been examined and also the rider of the motor cycle has not been examined before the Tribunal. Though Ex.R2 clearly states that the claimant himself was riding the motor cycle, the Tribunal has committed an error in not considering the same in a right perspective. Mere production of the police records itself would not suffice to prove the case of claimant and the evidence of respondent has not been rebutted. When such being the matter, Ex.R2 is sufficient to come to the conclusion that the fraud has been played by the claimant in order to make a wrongful claim.13. The learned counsel also would submit that PW.2 is not a treated doctor and his evidence cannot be relied upon to the extent of the disability as assessed by him. The claimant was also not wearing the helmet at the time of incident. Thus, the Tribunal has committed an error in awarding the compensation at Rs.14,26,300/- with interest at the rate of 8 % per annum. The interest awarded is excessive.14. Learned counsel would further contend that the Tribunal has committed an error in misreading the document produced at Ex.R2 and in taking the notional income of the claimant for assessing the loss of income which cannot be a basis when he being a student and the delay in lodging the complaint belatedly has not been explained.15. The claimant who has filed the appeal in MFA No.8348/2012 would contend that the Tribunal has committed an error in awarding a meagre compensation of Rs.14,26,300/-. It is the further contention of the claimant that the compensation of Rs.75,000/- awarded under the head of 'pain and sufferings' is very meagre when the claimant has sustained head injuries and multiple injuries all over the body. The compensation of Rs.9,55,308/- awarded under the head of 'medical expenses' is also very meagre. The compensation of Rs.30,000/- awarded under the head of 'loss of earning during the laid up period' is also very less. The compensation of Rs.2,16,000/- awarded under the head of 'loss of future earning on account of permanent disability' is also on the lower side. Though the doctor who has been examined as PW.2 has assessed the whole body disability of the claimant at 47.33%, the Tribunal has erred in taking the whole body disability at 25%.16. It is the further contention of the claimant that the compensation of Rs.50,000/- awarded under the head of 'loss of amenities and future unhappiness' is also meagre and further an amount of Rs.50,000/- awarded under the head of 'permanent disability' is on the lower side. The Tribunal also erred in awarding an amount of Rs.50,000/- under the head of 'Attendant, diet and conveyance charges' which is on the lower side considering the period of treatment.17. The learned counsel appearing for the claimant in his arguments vehemently contend that it is the case of the claimant as to he was a pillion rider, sustained head injury and immediately after the accident, was shifted to Ramanagar Hospital and thereafter, to Bengaluru Hospital. The claimant was unconscious for a period of 30 days and subjected to several surgeries. The father of the claimant lodged the complaint and while lodging the same, on explaining the delay in doing so, he contended that only after the injured regains consciousness, he came to know about how the accident had taken place and then immediately, he lodged the complaint. The only defence as taken in the written statement is that the claimant was a pillion-rider and hence, the Insurance Company is not liable to pay compensation. It is also not disputed the fact that he was a pillion-rider. The policy issued is a package policy and hence, the said contention cannot be accepted.18. Learned counsel for the claimant also would submit that though the doctor who has been examined as PW.2 has assessed the whole body disability at 47.33%, the Tribunal has committed an error in taking the disability at 25% without assigning any reasons. Learned counsel also brought to the notice of this Court Ex.P22-the certificate issued by the doctor, wherein it is specifically mentioned that the condition of the claimant was impaired.19. Learned counsel further contended that the claimant was aged about 18 years and he was a student of 1st year B.Com but the Tribunal has taken the notional income at Rs.4,000/- per month. When the claimant was a major, the Tribunal ought to have taken the income on higher side. The Tribunal has also not taken future prospects while awarding compensation which needs interference of this Court.20. Learned counsel for the claimant, in support of his arguments in respect of permanent disability, the Tribunal ought to have considered the future prospects and relied upon the recent judgment of the Apex Court in the case of Pappu Deo Yadav v. Naresh Kumar and Others decided in the Civil Appeal No.2567 of 2020 on 17.09.2020. Referring the said judgment, learned counsel brought to my notice para Nos.7 and 12, and also the re-appreciation of material in the said case at para No.21 with regard to enhancing of compensation. Learned counsel referring to the principles laid down in the said judgment, would submit that in the present case also, the doctor has assessed the permanent disability at 47.33% and hence, this Court has to take note of the future prospects of the injured and reconsider the material with regard to the percentage of disability and awarded appropriate, just and reasonable compensation.21. Learned counsel also would submit that the Insurance Company in the written statement did not dispute as to the fact that the claimant was a pillion-rider and the defence that was taken is the Company would not be liable to pay compensation to the claimant as he was a pillion-rider. Now the new ground that is urged in the present appeal is that he was not a pillion-rider and as a rider. At this juncture, no new pleadings can be raised in the appeal that he was a rider and not a pillion-rider and such defence has been raised for the first time in the present appeal. The said defence was not taken by the claimant before the Tribunal.22. Learned counsel in support of his arguments, relied upon the judgment of the Apex Court in the case of Mangla Ram v. Oriental Insurance Company Limited and others reported in (2018) 5 SCC 656. Referring to this judgment, learned counsel would submit that the Apex Court has detailed with regard to the standard of proof for proving the case of defence and also stated that re-appreciation of evidence is permissible, if the findings of the Tribunal are perverse or replete with error apparent on the face of record and manifestly wrong or otherwise the same cannot be reversed.23. The defence of the Insurance Company in the written statement is only that the Company is not liable to pay any compensation to the claimant as he was a pillion-rider and also that there was no pleading as to whether he was a rider or not. For the first time, such a new pleading has been urged in this appeal and there are no evidence before the Tribunal to show that he was a rider. There is no any rebuttal evidence as against the evidence of the claimant. When such being the case, the contention of the Insurance Company cannot be accepted.24. Learned counsel also would submit that the Tribunal at para No.12 of the judgment has properly considered Ex.R2. Subsequent to the filing of the appeal, the claimant has produced a copy of the rider pleading guilty before the Criminal Court, which supports the case of the claimant. The Insurance Company has not explained by examining the rider of the motor cycle under what circumstances he was pleaded guilty, when such being the fact, now cannot contend that he was a rider and not a pillion-rider and it is a case of self fall.25. Having heard the arguments of the learned respective counsel appearing for the appellants in both the appeals and on perusal of materials available on record the points that would arise for my consideration are:-1. Whether the Tribunal has committed an error in entertaining the claim petition as contended in MFA No.6845/2012 that there was a fraud in making the claim?2. Whether the Tribunal has committed an error in awarding exorbitant compensation as contended by the Insurance Company?3. Whether the Tribunal has committed an error in awarding excess interest at the rate of 8% per annum as contended by the Insurance Company?4. Whether the Tribunal has committed an error in not awarding just and reasonable compensation as contended in MFA No.8348/2012 by the claimant and not appreciated the evidence of the doctor-PW.2 in assessing the percentage of disability and erred in taking lesser percentage of disability?5. Whether the Tribunal has committed an error in not considering the future prospects as contended by the claimant in the appeal?6. What Order?Point No.1:-26. The main contention of the Insurance Company in the appeal is that the claimant himself was riding motor cycle and it is the case of self fall and he was not a pillion-rider and in support of the said contention, learned counsel mainly relies upon the evidence of RW.1 and also brought to notice of this Court Ex.R2, which got marked through RW.1. On perusal of documentary evidence of the claimant and also the evidence of PW.1, it is the specific case that he was a pillion-rider and the injured himself has been examined as PW.1.27. Learned counsel for claimant relied upon the documents at Ex.P1 to P5, which are true copies of FIR, crime detail form, motor vehicle accident report, wound certificate and charge sheet.28. Having perused the documents at Ex.P1-FIR, no doubt the complaint was given on 6.11.2010 and accident had taken place on 5.10.2010 and thus, there is a delay of 30 days in filing the complaint. On perusal of the complaint, which is marked as Ex.P1, a specific averment is made that both were traveling in a motor cycle and Lokesh who was the pillion rider sustained grievous injuries and the rider Srinivas also sustained injuries. Two persons by name Abhikshek and Narendra, who were coming behind the injured in the main road witnessed the accident and shifted the injured in an auto rickshaw to Ramanagar BGS Hospital and thereafter, the injured was shifted to BGS Hospital, Bengaluru. The said Abhishek called the father of the injured and informed about the accident and asked him to come to BGS Hospital, Ramanagar. The claimant had sustained head injury and was subjected to surgery. The complainant was providing the treatment for his son and hence, there was a delay in lodging the complaint. On perusal of the complaint, it discloses the reasons being explained for the delay in lodging.29. The main contention of the insurance company is that no complaint was given immediately after the accident. It is settled law that the Court has to look into the materials available on record, in order to ascertain as to whether it inspires the confidence of the Court that the delay in filing the complaint is reasonable or not. First priority is to be given in providing treatment to the injured. On perusal of the document Ex.P6, which is the discharge summary, it clearly states that he was admitted to hospital on 5.10.2010 and further the history would clearly reveal that there was loss of consciousness and bleeding in the right ear of the injured. It also discloses that he was in ICU for about one month.30. The Court has to take note of the fact that he was unconscious for a period of one month and the complaint was given immediately after one month. No doubt, the claimant has not examined the person, who shifted the injured to the hospital i.e., Abhishek, who was proceeding in the said road. The contents of the complaint Ex.P1 has not been disputed in the cross-examination of PW.1. It is also important to note that in the cross-examination of PW.1, he deposed that Srinivas was riding the motor cycle, wherein he was a pillion-rider. The evidence of PW.1 in examination-in-chief has not been disputed in the cross-examination with respect to the fact that Srinivas was riding the motor cycle, despite, a suggestion was made that the rider had rode the same in a slow manner. The fact of rider having rode the said vehicle is also not disputed. However, the only suggestion that was made to him was, the rider rode the vehicle in a slow manner. PW.1 also says that rider had sustained simple injuries and the same is also not disputed in the cross-examination of PW.1. It was suggested that the claimant has not sustained injuries in this accident and he sustained those injuries in other accident and the same has been denied in the cross-examination by PW.1.31. No doubt, the rider of the motor cycle was not examined. It is to be noted that through out in the cross- examination of PW.1 not disputed that he was not a pillion-rider and contended that he was riding the motor cycle. It is also important to note that the Insurance Company relied upon the evidence of PW.3, who is working as Medical Records Manager at BGS Global Hospital and the very same person has been examined by the claimant as PW.3 and got marked hospital inpatient records. Except marking the document at Ex.R2, which is the copy of MLC Register, the Insurance Company has not led any evidence before the Tribunal but has only relied upon the evidence of RW.1 to contend that he was a rider.32. RW.1 in the cross-examination has categorically admitted that he has not recorded the contents of Ex.R2. When the answer has been elicited from the mouth of RW.2 regarding the contents of Ex.R2, the Insurance Company ought to have examined the author of the document Ex.R2. RW.1 is only the Records Manager of the Hospital and hence, the document at Ex.R2 cannot be relied upon unless the contents of the said document has been proved by examining its author. No doubt, on perusal of Ex.R2, there is a reference to 'history of fall from the two wheeler while riding it, bike skid due to sudden break and patient had fallen and sustained head injury'. On perusal of the document at Ex.R2, no doubt history is mentioned as fall from two wheeler while riding it but there is no any specific mention as to whether the injured was riding the motor cycle. It is specifically mentioned that the patient had fallen and sustained head injury. In order to come to the conclusion as to whether he was a rider or a pillion-rider, there is no clear evidence and author of the Ex.R2 is not examined and he is the right person to speak and clarify regarding the entry.33. It is also important to note that Abhishek, who took the injured is a friend of the injured and he has also not been examined by the Insurance Company to prove the fact that whether the injured himself was riding the motor cycle or he was a pillion-rider. No doubt the petitioner has not examined him and there was no any impediment to examine him by the Insurance Company when the Company belatedly taken the defence that he was the rider. It is also important to note that in para No.3 of the written statement a specific defence was taken that he was a pillion-rider and the Company is not liable to pay any compensation to the pillion rider. However, the Insurance Company has failed to either examine the Investigating Officer, who conducted the investigation or disputed the documents of the police records. Mere taking a contra defence by examining RW.1 is not enough and there must be a clear pleading in the written statement, which should be supported by the evidence. The Insurance Company, to prove the fact of the allegation of fraud, has not made any efforts before the Tribunal to substantiate the contention which has been taken belatedly. First of all there is no pleading and secondly, there is no evidence of any witnesses who have witnessed the accident by the Insurance Company. The Investigating Officer has also not been examined in the present case. There is no dispute as to police records. When such being the case and the contents of the document Ex.R2 has not been proved by examining its author, the contention of the Insurance Company cannot be accepted. The averments in Ex.R2 is ambiguous and not clear so as to relate to the fact whether he was riding the motor cycle or he was a pillion-rider. The fact that he had sustained head injury is also not in dispute.34. The Apex Court in a catena of judgments held that in a civil case, there must be a pleadings and evidence and in the absence of any pleadings, any amount of evidence will not help the party to a suit. The same has been reiterated by the Apex Court in the case of Biraji @ Brijraji and Another v. Surya Pratap and Others in Civil Appeal Nos.4883-4884/2017 decided on 3-11-2020 at para No.7 that in the absence of pleading, any amount of evidence will not help the party. When the adoption ceremony, which had taken place on 14.11.2001, is mentioned in the registered adoption deed, which was questioned in the suit, there is absolutely no reason for non raising specific plea in the suit. In the case on hand also, first of all there is no pleading or evidence in order to come to the conclusion that he was a rider. The defence that he was a rider is not substantiated by any cogent evidence before the Tribunal. It is rightly pointed out by the claimant's counsel that the said contention has been raised before this Court for the first time without any pleadings or any evidence.35. In Mangala Ram's case (stated supra) as quoted by the claimant's counsel with regard to the standard of proof, the Apex Court has categorically held that holistic view required of entire pleadings and evidence by applying principles of preponderance of probability. Strict proof of accident by particular vehicle in particular manner is not required. Standard of proof beyond reasonable doubt cannot be applied. This judgment aptly applicable to the case in respect of MACT. When the Insurance Company takes a defence that the claimant was a rider and not a pillion-rider, the same has to be substantiated by the evidence. Mere taking of defence is not sufficient to prove the same.36. In the case on hand, the eye-witness has not been examined before the Tribunal on behalf of the Insurance Company to prove its contention expect examining RW.1. RW.1 states that he does not know the contents of document and also as I have already pointed out, the author of the document Ex.R2 has not been examined. The Insurance Company mainly relied upon Ex.R2 to contend that it is a case of fraud and to substantiate the same, the Insurance Company has not led any oral or documentary evidence, but however, has only relied upon the evidence of RW.1, a Record Manager who produced the said document before the Tribunal. The Insurance Company also not examined its official witnesses or any other witnesses to substantiate the contention.37. Having perused both the oral and documentary evidence placed on record and as I have already pointed out, in the cross-examination of PW.1, no suggestion was made as to the fact he was a rider. Instead a suggestion was made that the rider of the motor cycle was riding it in a slow manner and to substantiate the contention of the Insurance Company that the claimant was a rider, no material is placed on record except Ex.R2 and the same cannot be relied upon when its author has not been examined. In the absence of any cogent evidence before the Court, this Court cannot form the opinion other than the opinion formed by the Tribunal.38. The Apex Court in Mangala Ram's case (stated supra) has categorically held that while re-appreciating the material, such re-appreciation is permissible only if the findings of the Courts below are perverse or replete with error apparent on face of the record and manifestly wrong or otherwise the Appellate Court cannot reverse the findings. In the case on hand, in order to reverse the findings of the Tribunal, this Court does not find any material on record either oral or documentary evidence in order to come to the conclusion that it is a case of fraud. Hence, I answer point No.1 in the negative.Point Nos.2 to 4:-39. Having considered the contention of the Insurance Company as well as the claimant regarding the assessment of disability and also the income taken by the Tribunal, this Court is of the opinion to re-appreciate the material available on record.40. The fact that the claimant has sustained injury in the accident is not in dispute. The only dispute is whether he was a pillion-rider or rider. This Court, while answering point No.1, has come to the conclusion that he was a pillion-rider. On perusal of the wound certificate, which is marked as Ex.P4, the claimant suffered the following injuries:-1. Abrasion on forehead 3x3 cm2. Right active ear and nose bleeding3. Traumatic brain injury4. Left fronto-parietal acute SDH5. Right temporal EDH6. Multiple brain contusions7. Right Squamous temporal bone fracture with horizontal exterior to petrond bone with thin EDH.41. The Doctor also opined that the injury is grievous in nature and he had fracture in right parietal bone extending to squamous temporal bone fracture with horizontal extension to petrous bone with thin EDH. The documents at Exs.P6 disclose that he was inpatient for a period of 1 month 19 days at the first instance. Ex.P6 further discloses that there was a loss of consciousness and bleeding in the right ear. Later, he was shifted to ICU and subjected to brain surgery. The post operative scan revealed development of fresh contusion and hematoma in the opposite side. He was subjected to second surgery and he was managed in the ICU with mechanica ventilation and other supportive measures and again he developed copious tracheal secretions and hence, he was tracheostomised for better tracheobronchial management. He was subsequently shifted to Step Down Unit and then to the ward. He slowly improved in sensorium and became conscious. Bone flap replacement surgery was done.42. The records would also disclose that he was in continuous treatment particularly in respect of the brain surgery and CT Brain dated 6.11.2010 revealed post operative status. He was again admitted to hospital on 31.01.2011 and he was inpatient till 5.2.2011 i.e., for a period of 6 days, wherein he was subjected to surgery in terms of Ex.P7 and Ex.P8. He was readmitted to hospital on 07.02.2011 and discharged on 14.02.2011 wherein he was inpatient for a period of 8 days. The injured again admitted on 26.02.2011 and discharged on 01.03.2011, wherein he was inpatient for a period of 5 days. The injured again admitted to hospital on 17.8.2011 and discharged on 24.8.2011 and was subjected to surgery on 19.8.2011, whereby he was inpatient for a period of 8 days. The documents Exs.P6 to P10 disclose that he was inpatient for 5 times and undergone treatment from October 2010 to August 2011.43. PW.1, in his evidence reiterated the nature of injuries and treatment, which he took and he also relied upon the documents Ex.P6 to Ex.P29. In respect of the nature of injuries and treatment, in the cross-examination, he categorically admits that he sustained injury to his head only. It was suggested that Exs.P7 to P10 are created for the purpose of getting more compensation and the same was denied. He stated that he has taken physiotherapy treatment for movement of legs. It was suggested that Exs.P15 and P19 are created for the purpose of the case and the same was denied. In the cross- examination of PW.1 with regard to the nature of injuries and treatment, except suggesting that the medical records are created, nothing worth has been elicited from the mouth of PW1. No doubt, he admits that he has not produced the document to show that he was a student of 1st year B.Com from June 2010. The said admission is against Ex.P13.44. The doctor, who has been examined as PW.2 filed the affidavit, wherein he deposed that he examined PW.1 for disability assessment on 17.01.2012 and not treated doctor. In the affidavit, he reported the nature of injuries suffered by the claimant. Based on the report, which he obtained, has assessed the disability at 47.33%. He has also produced CT Scan Report with films and also Ex.P22-Neuropsychological Report. In the cross-examination, he admits that he has not treated the claimant and has only assessed the claimant clinically. He has not produced guidelines for assessment of disability. It was suggested that he could be cured by taking proper treatment and the same was denied. It is also suggested that he has given higher percentage of disability to help the claimant and the same was denied.45. Having considered the material available on record, particularly the evidence of PWs.1 and 2, the nature of injuries, the wound certificate disclose the injuries. The documents at Exs.P7 to P10 disclose that the claimant was subjected to surgery on several occasions and he was inpatient for a total period of 77 days in total.46. There is no effective cross-examination in the evidence of PW.2 with regard to the nature of treatment and injuries except eliciting the answers from the mouth of witness as to he was not treated as an inpatient. It has been noted that he has sustained head injury and was subjected to brain surgery. The Neuropsychological report which is marked at Ex.P22 discloses with regard to the impairment and CT Scan report which is marked at Ex.P21 discloses that there was a chronic subdural hematoma and also suggestive of atrophic changes. It is also found that there was old fracture and also post craniectomy and that there was chronic subdural hematoma in the left fronto-temporal-parietal region with a maximum width of 9.6. mm, the old fracture in right parietal bone extending to squamous part of temporal bone and the said report is dated 17.01.2012. The doctor has also assessed the disability on 13.01.2012 in terms of Ex.P22, which discloses that mental speed of information processing was impaired and fluency was impaired and working memory was impaired. Ex.P.22 finds mention that the claimant was neurophyschological deficits are suggestive of left frontal and bilateral temporal cortex involvement. The assessment indicated 42% impairement in cognitive functions.47. It is important to note that contents of the document Ex.P21 - Plain CT study report and Ex.P22 - Neuropsychological Report placed before the Court. In the cross-examination of PW.2, no question was put to the doctor-PW.2 regarding impairment, except suggesting that he has deposed only to help the patient. Though learned counsel appearing for the Insurance Company submits that the Tribunal has taken more disability, on perusal of judgment, the Tribunal has taken the disability at 25%.48. It is important to note that the claimant's counsel contend that though the doctor-PW.2 assessed the disability at 47.33%, the Tribunal has committed an error in taking the disability at 25%. On perusal of para No.18 of the judgment and award, the Tribunal has formed an opinion that the disability assessed by PW.2 is on the higher side and excessive. There is no proper calculation given by the doctor for assessment of disability. He has not assessed the functional disability based on the occupation of the claimant. He has also not assessed the disability to a particular limb and to whole body due to severe injuries. It is also observed that the he has appeared in normal and proper manner while giving evidence. Hence, the Tribunal has assessed the permanent disability at 25% to whole body arising out of fracture traumatic brain injury and other injuries. The aforesaid reason assigned by the Tribunal is not proper and question of assessing the limb disability and the whole body disability does not arise in a case of head injury.49. It is observed that the doctor has not assessed the disability to a particular limb and to whole body due to severe injuries is erroneous. It is not the case of limb disability, but a case of disability in respect of head injury sustained by the claimant. The fact that the claimant was subjected to brain surgery is not in dispute and so also that he was subjected to surgeries on several occasions. Even subsequent to that, the complication was developed after the first two surgeries. The disability assessed is with regard to impairment in respect of capability of the mental speed of information processing, which was impaired and also fluency was impaired and working memory was impaired and also he was a student at the time of the accident and he discontinued his education. The finding that the doctor has not assessed the functional disability based on the occupation of the claimant is erroneous. It is not the case of the complainant that he was working and record reveals that he was pursuing his education and question of assessing the functional disability based on his occupation does not arise and Tribunal proceeded in an erroneous approach while reducing the disability.50. In the cross-examination, nothing is elicited from the mouth of PW.1 as to the fact that he has continued his education. The document at Ex.P11 discloses that he was first class student in SSLC and a 2nd class student in II PUC. Ex.P13 discloses that he was admitted to degree college on 18.6.2011, discontinued his education on 01.08.2011 and his date of birth is 06.04.1992. It is clear from the document Ex.P13 that he could not continued his education though he admitted to college again after the accident.51. Having perused the material on record, particularly both the documents at Ex.P21 and Ex.P22 and also the evidence of PW.2-the doctor who has assessed the disability and also on the basis of CT Scan report, the Tribunal ought not to have assessed the disability at 25% to the whole body. As I have already pointed out, when the claimant has sustained injuries to his brain and was subjected to surgeries and not particularly to any limb, question of assessing the disability to a particular limb does not arise. No doubt, PW.2, in his evidence has deposed that he is not treated doctor and assessed the disability. Merely because he has not treated the clamant, his evidence cannot be discarded unless his evidence is defective. In the cross- examination, nothing is elicited to disbelieve his evidence and he has given the report based on CT report at Ex.P21 and his assessment report at Ex.P22.52. The Tribunal further observed that the witness has answered all the questions posed by the respondent in the cross- examination. Merely because the witness has given evidence before the Court, the Court cannot come to the conclusion that the claimant is not having any disability. The fact that he had sustained head injury and subjected to brain surgery and also undergone several surgery is not in dispute. He was admitted to hospital for five times and from October to March repeatedly he admitted and subjected to surgery and again admitted to hospital in the month of August and subjected to surgery on 17.8.2011 also not in dispute. The claimant was a student and his future education was discontinued and as a result of head injury he could not continue his education and there was an impairment of intellectual mental condition. Hence, the Tribunal has committed an error in assessing the disability at 25%. No doubt, he appeared before the Tribunal and has given evidence. Having taken note of the said fact into consideration and also the evidence of the Doctor PW.2, I am of the opinion that the Tribunal ought to have considered the evidence of PW.2 which has not been disputed, except suggesting that he has assessed higher disability. PW.2 gave evidence based on the CT Report as well as the claimant clinical examination report. Hence, it is appropriate to take the disability as 45% and he had sustained the head injury particularly to brain and not any limb as observed by the Tribunal.53. Now coming to the conclusion with regard to assessment of disability is concerned, the learned counsel for the claimant has relied upon the judgment of the Apex Court to consider the future prospects. In Pappu Deo Yadav's Case (stated supra) the Apex Court has discussed in detail with respect to considering of future prospects in the case of permanent disability. While discussing elaborately in the said case, the Apex Court has discussed in detail with regard to taking of future prospects. Hence, I would like to extract the para No.20 of the said judgment."This court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did, i.e. as a typist/data entry operator in court premises in Delhi, his assertion about earning Rs.12,000/- could not be discarded substantially, to the extent of bringing it down to Rs.8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than Rs.1,60,000/- per annum. The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellant's monthly earnings at Rs.8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of Rs.8,500/-) the realistic figure would be Rs.10,000/- per month. Adding future prospects at 40%, the income should be taken as Rs.14,000 for the purpose of calculation of compensation. Accordingly, this court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be Rs.19,65,600/- (i.e., Rs.14,000/- x 12 x 65% x 18) or Rupees Nineteen lakhs sixty five thousand six hundred only."54. The Apex Court also in the earlier judgment in Syed Sadiq and Others v. Divisional Manager, United India Insurance Company Limited reported in (2014) 2 SCC 735, has taken the future prospects of the permanently disabled person. The income of the vegetable vendor was taken at Rs.6,500/- and the accident had taken place in the year 2008.55. The Apex Court also in the case of Sanjay Kumar v. Ashok Kumar and Another reported in (2014) 5 SCC 330 has held with regard to assessing the permanent disability, by taking future loss of income and considering the loss of ea

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rning capacity in respect of future loss of income of the claimant awarded compensation. In the said case also, the accident had taken place in the year 2005 and income of the claimant was taken at Rs.4500/-.56. The Apex Court in recent judgment in the case of Kajal v. Jagdish Chand and Others reported in (2020) 4 SCC 413 held that in the said case where the accident had taken place in the year 2007, the minimum wages was taken at Rs.4,846/- per month as the claimant was a student and 40% of future prospects was added and awarded compensation. In the case on hand also, the injured was aged about 18 years as on the date of the accident and on account of accident, he could not continue his education and though he was admitted to college in terms of Ex.P13 in the month of June, 2011, but he could not continue his education. Ex.P.13 is not disputed. The Tribunal has taken the notional income at Rs.4,000/- per month. It is the fact that he was a major and the same is not in dispute. The Tribunal taken his notional income as Rs.4,000/- considering his avocation as manual labour. The fact that on account of accident his educational carrier has been affected and could not continue his education.57. Considering the principles laid down in the judgment referred supra and also taking note of the age of the student as 18 years and so also considering the physical earning capacity, it is appropriate to take the notional income of the claimant at Rs.5,500/- per month. Since the accident was taken place in 2010 and adding future prospects at 40%, the disability at 45%, and by applying the relevant multiplier as 18 considering the age of the claimant about 18 years, the loss of future earning on account of permanent disability works out as hereunder:Rs.5500+40%(Rs.2,200)=Rs.7,700/-Rs.7,700X45%=Rs.3,465X18X12=Rs.7,48,440/-.58. The Tribunal awarded an amount of Rs.75,000/- under the head of 'pain and sufferings'. Since the claimant was inpatient for a period of 77 days and was subjected to surgeries on several occasions, it is appropriate to enhance the same from Rs.75,000/- to Rs.1,00,000/-. The compensation awarded under the head of 'medical expenses' does not require any interference by this Court as the same is based on the documentary proof. However, the Tribunal has committed an error in awarding the compensation under the head of 'loss of earning during laid up period' since the same does not arise and he was a student at the time of the accident.59. The Tribunal awarded an amount of Rs.50,000/- under the head of 'loss of amenities and future unhappiness' which appears to be just and reasonable. The compensation awarded under the head of 'attendant, diet and conveyance charges' at Rs.50,000/- also appears to be just and reasonable. Hence, the same does not require interference of this Court. However, the Tribunal awarded an amount of Rs.50,000/- under the head of 'permanent disability' which does not arise at all, when the Court considers the future loss of income on account of permanent disability.60. Accordingly, an amount of Rs.21,19,740/- is awarded by modifying the compensation granted by the Tribunal.Point No.5:-61. The other contention of the Insurance Company that interest awarded by the Tribunal at 8% is on the higher side when the accident had taken place in the year 2010. Having taken note of the accident was taken place in 2010 and considering the rate of interest prevailing in 2010, the Tribunal ought to have considered the interest at 6% instead of 8%. Accordingly, the same is reduced to 6% per annum. In respect of awarding the rate of interest is concerned, the appeal filed by the Insurance Company is allowed by reducing the same to 6%.In view of the discussion made above, I proceed to pass the following:-ORDER(i) The appeal filed by the claimant in M.F.A.No.8348/2012 is allowed in part.(ii) The impugned judgment and award of the Tribunal dated 09.04.2012, passed in M.V.C.No.660/2011, is modified granting compensation of Rs.21,19,740/- as against Rs.14,26,300/- with interest at the rate of 6% per annum from the date of petition till deposit.(iii) The insurer is directed to pay the compensation amount within eight weeks from today.(iv) The appeal filed by the Insurance Company in M.F.A.No.6845/2012 is allowed in part.(v) The impugned judgment and award of the Tribunal dated 09.04.2012, passed in M.V.C.No.660/2011, is modified by reducing the rate of interest to 6% from 8% per annum.(vi) The amount in deposit, if any, be transferred to the Tribunal.(vii) The Registry is directed to send the records to the concerned Tribunal, forthwith.
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