Bangalore District Court
Manjunath @ Manjunathad vs Bathri A on 10 March, 2022
1
BEFORE THE CHIEF JUDGE, COURT OF SMALL CAUSES &
MEMBER PRL.MOTOR ACCIDENT CLAIMS TRIBUNAL AT
BENGALURU
(S.C.C.H. - 1)
DATED THIS THE 10th DAY OF MARCH'2022
PRESENT : SMT.PRABHAVATI M.HIREMATH, B.A.,LL.B., (Spl.,)
MEMBER, PRL. M.A.C.T.,
M.V.C. No. 4329/2018
PETITIONER: MANJUNATH @ MANJUNATHAD,
S/o.Basavaraju,
Aged about 22 years,
Residing at No.62,
3rd Cross, Kanteeravanagar,
Nandini Layout,
Bengaluru 560 096.
Petitioner is represented by T.H.G.,
Advocate.
- V/s -
RESPONDENTS: 1. BATHRI A.,
No.20, 1st Main Road,
KPN Extn., Bengaluru 560 002.
(RC Owner of Passenger Autorickshaw
bearing Reg.No.KA.05/AD.3862)
2. THE NEW INDIA ASSURANCE CO.,
LTD.,
Regional Office,
No.9/2, Mahalakshmi Chambers,
M.G.Road, Bangalore 560 001.
Policy No.72130031170100002030
Valid from 14.06.2017 to 13.06.2018
Respondent No.1 - Exparte
Respondent No.2 by N.S., Advocate
*******
2
JUDGMENT
This petition is filed by the petitioner under Section 166 of the Motor Vehicles Act claiming a compensation of Rs.40 lakhs for the injuries sustained by him in the road traffic accident said to have occurred on 21.04.2018 at about 04.45 pm., on Kanteerava Studio Main Road, in front of Home Timber Shop, Bengaluru.
2) Brief facts of the case, as made out in the petition, are as follows:-
On 21.04.2018, at about 4.45 pm., the petitioner was riding motorcycle No.KA.06/EU.3918 on the extreme left side of Kanteerava Studio Main Road ie., from FTI Circle towards Krishnanda Circle. When he reached in front of Home Timber Shop, at that time, suddenly lorry No.KA.01/C.5918 came from behind, driven by its driver in high speed, rash or negligent manner without observing the traffic rules and dashed to the petitioner's motorcycle.
Due to the impact, petitioner sustained grievous injuries and immediately, he was shifted to Kanva Hospital wherein first aid was administered to him and thereafter, for further management, he was referred to M.S.Ramaiah Hospital, Bengaluru wherein he took treatment as an inpatient from 21.04.2018 to 12.06.2018. Medical investigations 3 revealed that due to the accident, the petitioner had sustained crush injury with degloving B/L lower limb with left gluetal, groin and perineum and other grievous injuries all over the body. He underwent surgery and his right leg above knee had to be amputated. He has taken treatment as inpatient on several occasions. He incurred Rs.10 lakhs for his treatment.
At the time of the accident, the petitioner was aged 22 years and doing coolie work and earning Rs.20,000/- per month. On account of amputation of right leg above knee, he is left with disability, on account of which, he is unable to continue his avocation.
The accident has occurred only due to the rash or negligent act of driving of the lorry No.KA.01/C.5918 by its driver, Therefore, the respondent No.1 being the owner and the respondent No.2 being the insurer of the same, are jointly and severally liable to pay compensation to the petitioners. Hence, a total compensation of Rs.40 lakhs is claimed.
3) After service of notice of this petition, the respondents No.1 remained absent and he has been placed exparte and the respondent No.2 entered appearance through its advocate and filed its statement of objections.
4) Contentions raised by the respondent No.2 in its statement of objections, in brief, are:4
The petition is not maintainable. The respondent No.1 has not complied with the mandatory requirements of Section 134(c) of the MV Act. The Police have not complied with the requirements of Section 158(6) of the MV Act.
Entire averments in the petition are denied in toto, by stating that the petitioner be strict proof of the same. The second respondent has issued a Policy of Insurance to the first respondent with reference to the lorry bearing No.KA.01/C.5918. The liability of the second respondent is subject to the terms and conditions of the policy. The first respondent has not furnished the documents like RC, DL and FC for the purpose of verification. The driver of the lorry has no valid and effective driving licence to drive particular type of vehicle. The owner of the lorry knowing fully handed over the vehicle to drive the same by a person who has no driving licence. The occurrence of the accident, involvement of the lorry are contended to be not within the knowledge of the second respondent and the said facts are disputed. There is no negligent act on the part of the driver of the lorry. Due to the negligent act on the part of the petitioner in riding the motorcycle, the accident occurred. Without wearing helmet, the petitioner tried to overtake lorry and dashed to the upcoming BMTC Bus and fell down. Therefore, the accident occurred. The owner and insurer of 5 the BMTC Bus are necessary parties to the proceedings. Petition is bad for non-joinder as well as misjoinder of parties. Averments in the petition with reference to the age, avocation and income of the petitioner, medical expenses incurred by the petitioner are denied in toto. The amount of compensation claimed is too excessive and exorbitant and prayed to dismiss the petition.
5) From the above pleadings of the parties, my predecessor in office has framed the following Issues:-
1) Whether the petitioner proves that he sustained injuries in a motor vehicle accident that occurred on 21.04.2018 at about 4.45 pm., on Kanteerava Studio Main Road, in front of Home Timber Shop, Bangalore within the jurisdiction of Rajajinagar Traffic Police Station on account of rash and negligent driving of the lorry bearing registration No.KA.01/C.5918 by its driver?
2) Whether the respondent No.2 proves that the accident has occurred on account of negligent act of petitioner himself?
3) Whether the petitioner is entitled for compensation? If so, how much and from whom?
4) What order?
6) In support of the petitioners' case, petitioner has got examined himself as PW 1. He has examined the doctor as PW 2 and got marked in 6 all 19 documents as Ex.P.1 to P.19.
7) In support of the respondent No.2's case, 6 witnesses are examined as RW 1 to 6 and got marked in all 15 documents are Ex.R.1 to R.5.
8) Heard arguments on both sides. Written arguments are filed by the advocate for the petitioner.
9) For the reasons stated in the subsequent paragraphs, I answer Issues as follows:-
Issue No.1 : In the affirmative, Issue No.2 : In the negative.
Issue No.3 : Accordingly, Issue No.4 : As per final order, for the following:
REASONS
10) Issue No.1 and 2:- These Issues are with reference to negligent act of driving whether on the part of the lorry driver or on the part of the petitioner himself. Therefore, to avoid repetition of discussion of evidence, these two Issues are taken together for discussion.
11) It is the specific case of the petitioner that when he was proceeding on his motorcycle ahead of the lorry, the lorry dashed to his two wheeler, on account of which, he fell down and the wheel of the lorry ran 7 over his legs.
12) To substantiate the same, the petitioner relied on his own oral evidence and Police records.
13) During the course of his cross-examination, it is suggested to him that he has no knowledge about riding of two wheeler and the said suggestion has been denied by him.
14) Ex.P.1 is the FIR along with Complaint. Ex.P.2 is the Spot Mahazar. Ex.P.3 is the Spot Sketch. Ex.P.6 is the Charge Sheet. Ex.P.7 is the Certified copy of the Order Sheet in CC No.6638/2018. Ex.P.8 is the certified copy of the Plea recorded in CC No.6638/2018.
15) From going through the above said criminal case records, it is clear that on the basis of the complaint lodged by one Udaykumar K.N., S/o.Narasimhegowda on 21.04.2018 itself, case is registered against the lorry driver. In the complaint, it is mentioned that on the date of accident, his elder brother's son was proceeding on a two wheeler. At that time, from backside, lorry dashed to him, due to which, he fell down and the wheel of the lorry ran over his two legs. The accident occurred in between 16.45 hours and 16.46 hours. Complaint was lodged on the same day at 19.00 hours ie., within 3 hours from the time of accident. Therefore, it cannot be said that there is manipulation of facts and there is no dash by the lorry, as 8 suggested to PW 1.
16) During the course of cross-examination of PW 1, it is suggested to him that PW 1 was overtaking the lorry, at that time, from opposite direction, BMTC Bus came and it touched the two wheeler of the petitioner and therefore, he fell down and the accident occurred and the said suggestion has been denied by him.
17) To substantiate the said defence, the respondent No.2 Insurance Company got summoned one Vinaykumar, an eyewitness to the accident and examined him in this case as RW 5.
18) As per the charge sheet at Ex.P.6, RW 5 is one of the witnesses to the accident. In the chief examination of RW 5, he has stated that along with his friends, he was standing on Kanteerava Studio Main Road in front of Timber Shop, at about 4.30 to 5.00 pm. At that time, a motorcycle was proceeding from Peenya Side towards Krishnanada Nagar. Behind that vehicle, lorry was proceeding and the lorry dashed to the two wheeler, consequently, the rider of the two wheeler fell down and the wheel of the lorry ran over him and he shifted the injured to Kanva Sai Hospital.
RW 5 was treated as hostile on the request of the learned advocate for the respondent No.2. Even though RW 5 has been cross-examined, but nothing is elicited to disbelieve his evidence in his chief examination to the effect 9 that on account of dash by the lorry, the rider of the two wheeler fell down and the wheel of the lorry ran over his legs.
19) The evidence of RW 5 in the chief examination is corroborated with the evidence of PW 1 with reference to the negligent act of the driver of the lorry.
20) The learned advocate for the respondent No.2 vehemently argued that in all medical records, it is mentioned that "Skid and Fall" and in Ex.P.13(b), it is mentioned that hit by 4 wheeler and ran over by it over the petitioner. Therefore, involvement of the lorry in the accident can be doubted, so also there is clear mention regarding Skid and Fall by the petitioner. Therefore, there is no dash by the lorry to the two wheeler.
21) From going through the medical records available in this case, it is clear that in all 4 Discharge Summaries, history of the injury is mentioned as Skid and Fall from his bike and lorry ran over patients' legs.
22) PW 2 the doctor who has treated the petitioner in Ramaiah Hospital, is examined by the petitioner to prove the percentage of disability. During his cross-examination, advocate for the respondent No.2 has asked questions with reference to history of injury as mentioned in Ex.P.13 ie., Case Sheet produced by PW 2. He has admitted the entries like Ex.P.13(a) and Ex.P.13(b) were made in the Case Sheet and he is unable to identify the 10 author of those entries. Ex.P.13(b) is Out Patient Clinical Record. In the second column, history, examination, treatment and progress record, it is recorded as on 21.04.2018 at 05.30 pm. Doctor's name is mentioned in the top as Dr.Abishek (EMD Resident). Informant is mentioned as Police. As per Ex.P.13(b), history is mentioned as RTA at 04.30 pm. On 21.04.2018 near Kanteerava Studio. Exact mechanism is not known. Patient was riding two wheeler. Skid and Fall. Lorry ran over lower limbs of patient.
23) The learned advocate for the respondent No.2 vehemently argued that initially, writing was only till Skid and Fall and subsequently, 'lorry ran over on lower limbs of patient' is inserted. Therefore, there is full stop after 'Fall'. During the course of cross-examination of PW 2, Ex.P.13(a) is also marked, which entries are made on 21.04.2018 at 06.45 pm. In that, history of the injury is mentioned as RTA at about 4.00 pm., on 21.04.2018 near Rajkumar Studio, while going on two wheeler, he got hit by 4 wheeler and ran over by it and sustained injuries. Based on the initial entry at Ex.P.13(b), further entry in the history are required to be made. But there is variation in between Ex.P.13(b) and Ex.P.13(a) entry. So also, at page No.6, at 6.00 pm., on 21.04.2018, we can find entire entry in the Case Sheet with reference to the history ie., like Ex.P.13(a). Now, the question is whether based on these entries, involvement of the lorry can be 11 doubted, is to be seen.
24) As I already stated above, within 3 hours from the time of accident, complaint was lodged and on completion of the investigation, charge sheet is filed against the lorry driver. Before the jurisdictional Criminal Court, the lorry driver has admitted his guilt and paid fine as per Ex.P.7 and P.8 - Criminal Court Records. As I already stated above, RW 5 has supported the case of the petitioner. As there is different history mentioned in M.S.Ramaiah Hospital records, which is recorded as per the information furnished by the Police, the availability of Police at the time of examination of petitioner, at the first instance in Ramaiah Hospital, creates doubt. Therefore, only on the basis of medical record entries, it cannot be said that lorry is not involved in the accident, as in the written statement, same is not disputed. On the contrary, the oral evidence of PW 1, RW 5 and the Police records are sufficient to come to the conclusion that the lorry is involved in the accident. For the said reasons, the petitioner proved that while he was proceeding ahead of the lorry, from behind , lorry dashed to him and he fell down and the lorry ran over his two legs. On the contrary, the evidence of RW 5 is not helpful to respondent No.2 to prove the negligent act of riding of two wheeler by the petitioner.
25) In this case, there is no dispute regarding the fact that the 12 petitioner has sustained grievous injuries, which resulted in amputation of right leg above knee. For that, the petitioner has produced Ex.P.5 - Wound Certificate, Ex.P.9 - 5 Discharge Summaries, Ex.P.11 - Medical Bills, Ex.P.12 - Prescriptions, Ex.P.13 - 6 Case Sheets. From these records, it is proved that in the said accident, the petitioner has sustained grievous injuries. Hence, Issue No.1 is answered in the affirmative and issue No.2 is answered in the negative.
26) Issue No.3:- In this case, the petitioner has claimed compensation of Rs.40 lakhs on various heads.
27) In the decision reported in (2011) 1 SCC 343 ( Raj Kumar Vs. Ajay Kumar and another) Division Bench of the Hon'ble Apex Court has laid down on what grounds compensation is required to be awarded in personal injury case. In para 6 of the said judgment His their Lordships have demarcated the heads in which compensation is required to be considered are reads as under:
6. The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages(Special damages)
(i)Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment 13
(b) Loss of future earnings on account of permanent disability.
(iii) future medical expenses Non-pecuniary damages(General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage)
(vi) Loss of expectation of life(shortening of normal longevity)
28) From going through the above said decision, it is clear that under the pecuniary damages expenses relating to the treatment, hospitalisation, medicines, transportation, nourishing food and miscellaneous expenditure are required to be considered with. In the second head loss of earning and other gains of the injured person is required to be considered. In the background of principle laid down by their Lordships in the above said decision we can consider what amount the petitioner is entitled for compensation.
29) It is the case of the petitioner that in the said accident, he sustained grievous injuries. To prove what are the injuries sustained by him in the accident, the petitioner has relied on the Wound Certificate at Ex.P.5. As per Ex.P.5, the petitioner has sustained the following injuries:-
1) Degloving injury over left thigh, Left Pelvis, Sacrotum and Perinum and anterior aspect of left leg. Deformity and abnormal mobility over left leg and thigh. X ray showed fracture 14 of left femur, left tibia and fibula.
2) Deep lacerated wound on right popleted fossa and posterior aspect of thigh. X ray showed fracture of right tibia. Due to vascular compromise, above knee amputation of right leg was done on 26.04.2018.
30) The injuries are opined to be grievous in nature.
31) 5 Discharge Summaries are collectively marked as Ex.P. 9.
From the said 5 Discharge Summaries, it is clear that the petitioner has taken treatment as an inpatient from 21.05.018 to 12.06.2018, from 12.06.2018 to 29.06.2018, from 22.09.2018 to 04.10.2018, 06.10.2018 to 22.03.2019 and from 03.05.2019 to 07.06.2019.
32) As per the Discharge Summary at Sl.No.1 of Ex.P.9, the petitioner has been diagnosed with "Crush Injury with degloving B/L lower limb with left gleutal, groin and perineum". From going through the course in the hospital and major events during admission as mentioned in Ex.P.9, it is recorded as under:-
"Patient admitted to ICU with above mentioned complaints under orthopedician. Reference sought for left groin, genitalia, left lower limb crush, avulsion injury. Patient was on ventilatory support and ionotropes. General surgery reference sought for diversion colostomy on 25.04.2018. Vascular surgery reference sought for right lower limb vascular compromise. 15 Underwent right above knee amputation in view of compromised vascularity of right lower limb. Patient transferred under Plastic Surgery for further wound management of lower limb, groin, gluetal region, patient underwent staged wound debridement, received appropriate iv antibiotics. Patient was weaned off ionotropes underwent tracheostomy on 05.05.2018. Patient received partial parenteral nutrition and gradually started on enteral feeds. Patient underwent regular dressings, underwent resurfacing of left lower limb wounds with SSG in stages. SSG uptake found to be >95%. Patient requires further management by orthopedician for fracture management."
33) Even though as per Sl.No.1 of Ex.P.9, the petitioner was discharged on 12.06.2018, but on the same day, the petitioner was once again admitted and discharged on 29.06.2018. Course and major events in the hospital during second admission as per Sl.No.2 of Ex.P.9, as recorded in Ex.P.9 are as under:-
"Patient admitted with above mentioned complaints and investigated appropriately and evaluated. Patient undergone regular change of dressing and daily physiotherapy. Patient's tracheostomy was decannulated on 15.06.2018 by ENT Surgeon. Ortho team and surgery team's references sought and orders followed. Urologist reference sought and followed".
34) Due to the said complications, even after discharge, on 3 occasions, the petitioner was readmitted as per the Discharge summary at 16 Sl.No.3 of Ex.P.9.
35) Considering the nature of injuries sustained by the petitioner in the accident, duration of treatment as inpatient and considering the fact that the petitioner has lost his right leg permanently by way amputation above knee and that the petitioner has been treated with surgeries, as many as on 9 occasions, the petitioner is awarded compensation of Rs.1,50,000/- under the head Pain and Suffering.
36) From Ex.P.9, Sl.No.1 to 5 as well as from Ex.P.13, it is clear that in Ex.P.13 contains 6 IP Files produced by the hospital authorities. In Sl.No.3, 4 and 5 Files, we can find Discharge Summaries like Ex.P.9 - 5 Discharge Summaries. From those Discharge Summaries, it is clear that the petitioner has taken treatment as an inpatient on 5 occasions ie., from 21.05.018 to 12.06.2018, from 12.06.2018 to 29.06.2018, from 22.09.2018 to 04.10.2018, 06.10.2018 to 22.03.2019 and from 03.05.2019 to 07.06.2019, in all for a period of 284 days. Therefore, the petitioner is awarded compensation of Rs.2,84,000/- towards Food, Nourishment, Attendant and Misc.Expenses.
37) In view of long duration of treatment taken by the petitioner, even after discharge, he has taken follow up treatment and thus, he might have spent some amount of his conveyance. Therefore, the petitioner is 17 awarded compensation of Rs.10,000/- towards Conveyance Expenses.
38) It is the case of the petitioner that he has sustained permanent disability. For that, he relied on the evidence of the doctor, who has been examined as PW 2. In his chief examination affidavit, PW 2 has stated about the difficulties faced and the surgeries undergone by the petitioner. In all, the petitioner has undergone 9 surgeries and PW 2 has assessed the disability of right lower limb as well as left lower limb with reference to mobility component, stability component and totally, at 90% with reference right as well as left lower limb and 60% to whole body.
39) During the course of cross-examination, PW 2 has clearly stated that he has treated the petitioner. Several questions were posed to him with reference to identification of handwriting and Ex.P.13(a) and 13(b) with reference to history of injuries. He showed his ignorance and unable to identify the handwriting of the particular doctor.
40) Nearly 1 ½ years from the date of accident, PW 2 was examined on 19.09.2019. During the course of cross-examination, he has stated that fractures of left tibia and left femur are in the process of healing. Therefore, the petitioner is still under treatment. To doubt the evidence of PW 2, nothing is elicited during the course of his cross-examination. Considering the amputation of right leg above knee and degloving injury 18 sustained by the petitioner with reference to left leg at the time of his examination, after recalling PW 1 for further cross-examination, his condition was noted in the deposition as he came to the court in the wheel chair with the assistance of another person. He is unable to enter the witness box, oath was administered to him outside the witness box. Considering all these facts, the petitioner can do work by using his hands in sitting posture. However, he cannot discharge his work as a coolie. Therefore, functional disability is taken as 50% to whole body.
41) It is the case of the petitioner that he was earning Rs.20,000/- per month by doing coolie work. Except his oral evidence, nothing is on record. Therefore, the income of the petitioner is required to be notionally taken into consideration. As the accident has occurred in the year 2018, his income is notionally taken as Rs.11,000/- per month.
42) Now, the question is whether loss of future prospects is required to be granted in the case on hand, is to be seen. In this regard, in the recent judgment, the Hon'ble Supreme Court, while dealing with assessment of notional income of a housemaker, in the case of Kirti Oriental Insurance Co., Ltd., and others reported in (2021) 2 SCC 166, in Supplement Para No.21 to 26, has held as under:-
21. Once notional income has been determined, the 19 question remains as to whether escalation for future prospects should be granted with regard to it. Initially, the awarding of future prospects by this Court was related to the stability of the job held by the victim [See General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas (Mrs), (1994) 2 SCC 176; Sarla Dixit (Smt) v. Balwant Yadav, (1996) 3 SCC 179]. This focus on the stability of the job of the victim, while awarding future prospects, was continued in the judgment of this Court in Sarla Verma (Smt) v. Delhi Transport Corporation, (2009) 6 SCC 121 wherein the Court held as follows:
"24. In Susamma Thomas [(1994) 2 SCC 176] this Court increased the income by nearly 100%, in Sarla Dixit [(1996) 3 SCC 179] the income was increased only by 50% and in Abati Bezbaruah [(2003) 3 SCC 148] the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words "actual salary" should be read as "actual salary less tax"). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years.20
Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was selfemployed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
(emphasis supplied)
22. However, there was a shift in jurisprudence regarding future prospects with the fiveJudge Bench decision of this Court in Pranay Sethi (supra). This Court extended the benefit regarding future prospects to even selfemployed persons, or those on a fixed salary. The Court held as follows:
"57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the selfemployed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as 21 postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities.... Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the 22 established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable." (emphasis supplied)
23. The rationale behind the awarding of future prospects is therefore no longer merely about the type of profession, whether permanent or otherwise, although the percentage awarded is still dependent on the same. The awarding of future prospects is now a part of the duty of the Court to grant just compensation, taking into account the realities of life, particularly of inflation, the quest of individuals to better their circumstances and those of their loved ones, rising wage rates and the impact of experience on the quality of work.
24. Taking the above rationale into account, the situation is quite clear with respect to notional income determined by a Court in the first category of cases outlined earlier, those where the victim is proved to be employed but claimants are unable to prove the income before the Court. Once the victim has been proved to be employed at some venture, the necessary corollary is that they would be earning an income. It is clear that no rational distinction can be drawn with respect to the granting of future prospects merely on the basis that their income was not proved, particularly when the Court has 23 determined their notional income.
25. When it comes to the second category of cases, relating to notional income for nonearning victims, it is my opinion that the above principle applies with equal vigor, particularly with respect to homemakers. Once notional income is determined, the effects of inflation would equally apply. Further, no one would ever say that the improvements in skills that come with experience do not take place in the domain of work within the household. It is worth noting that, although not extensively discussed, this Court has been granting future prospects even in cases pertaining to notional income, as has been highlighted by my learned brother, Surya Kant, J., in his opinion [Hem Raj v. Oriental Insurance Company Limited, (2018) 15 SCC 654; Sunita Tokas v. New India Insurance Co. Ltd., (2019) 20 SCC 688].
26. Therefore, on the basis of the above, certain general observations can be made regarding the issue of calculation of notional income for homemakers and the grant of future prospects with respect to them, for the purposes of grant of compensation which can be summarized as follows: a. Grant of compensation, on a pecuniary basis, with respect to a homemaker, is a settled proposition of law. b. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker 24 attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all.
c. Various methods can be employed by the Court to fix the notional income of a homemaker, depending on the facts and circumstances of the case.
d. The Court should ensure while choosing the method, and fixing the notional income, that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally. e. The granting of future prospects, on the notional income calculated in such cases, is a component of just compensation..."
43) As per Ex.P.1- Driving Licence, the date of birth of the petitioner is 17.04.1996. As on the date of accident, he was 22 years old and therefore, 40% of the income of the petitioner, is taken towards loss of future prospects. 40% of Rs.11,000/- comes to Rs.4,400/- and thus, the total income of the petitioner, including the future prospects, comes to Rs.15,400/-. In view of my above said finding that the petitioner has suffered 50% disability to whole body, the petitioner has sustained loss of 25 50% of his income ie., Rs.7,700/- per month. After multiplying it by 12, annually, it comes to Rs.92,400/-. As on the date of accident, the petitioner was 22 years old. Therefore, as per the Sarla Verma Case reported in 2009 ACJ 1298, multiplier applicable to the case on hand is 18. Therefore, the petitioner is awarded compensation of Rs.16,63,200/- towards loss of future income on account of disability.
44) PW 2 in his evidence specifically deposed that the petitioner is taking treatment since fractures are under healing process. He has proposed that the petitioner is in need of Rs.2 lakhs for his future treatment He has not explained the cost or he has not filed the estimation. The fact remains that the petitioner having undergone treatment by implantation, such implants are to be removed once the injuries are healed or fracture is united. Therefore, the petitioner is awarded Rs.50,000/- towards future medical expenses, including removal of implants.
45) Since the petitioner has suffered amputation of right leg above knee, obviously, the petitioner has to have prosthesis (artificial leg) for his activities. Hence, the petitioner is awarded Rs.1,00,000/- towards cost of purchase of prosthesis.
46) The petitioner met with the accident at the age of 22 years and is unmarried. Certainly, his marriage prospects will be bleak on account of 26 injuries sustained in the accident especially the amputation of right leg above knee. Therefore, the petitioner is awarded Rs.1 lakh towards loss of marriage prospects.
47) The petitioner claims that he incurred huge amount for his treatment. For that, he has produced Ex.P.11 - 381 Medical Bills for Rs.4,46,099/-. Except Sl.No.1 IP Bill, the petitioner has not produced any Inpatient Final Bill for having taken treatment. As per Sl.No.1 of P.11, which is the Inpatient Bill for the period 12.06.2018 to 29.06.2018,, for a sum of Rs.29,173.15 Ps. On the contrary, the Insurance Company has adduced the evidence of Billing Officer, Accounts Department, Ramaiah Hospital as RW 4. In his chief examination affidavit, RW 4 has stated that he is working as Billing Officer in Accounts Department of Ramaiah Hospital. He has been authorised to produce the documents. In response to the summons, he has produced the IP Medical Bill, containing 27 pages. Same is marked as Ex.R.11.
48) Ex.R.11 is the Inpatient Bill for the period 21.04.2018 to 12.06.2018 for Rs.5,48,216.56 Ps. On the top of the Bill itself, it is mentioned as "ESI Scheme (Medical)".
49) From gong through the description of the Bill in detail, in subsequent pages, it is clear that out of Rs.5,48,216/-, an amount of 27 Rs.3,08,272.66 Ps with reference to pharmacy charges and Rs.19,563.50 Ps is towards materials like plaster and implants. Sl.No.2 to 341 are with reference to medicine purchase bills as well as advance bill for having paid the amount.
50) As per Ex.R.11, in the last page, mode of payment and in the lost but one page, the details of mode of payment are mentioned. The total bill amount is Rs.6,09,010.86 Ps. An amount of Rs.37,794.70 is shown as discount and total amount for payment is Rs.5,71,216.16 Ps. Out of which, Rs.3,20,000/- was paid on different dates as advance. A sum of Rs.2,97,000/- was refunded to patient, in view of reimbursement by the ESI. From Ex.R.14, it is clear that ESI has settled Rs.5,48,216/- on receipt of bill from the hospital. After deduction of TDS and Service Charges, net payable amount was Rs.3,82,826.270 Ps. In view of the payment made by the SI, amount is reimbursed to the patient.
51) As I already stated above, medicine charges are included in the Final Bill and the ESI has reimbursed the same. Therefore, the petitioner is not entitled for medical expenses claimed under Ex.P.9 Bills.
52) The learned advocate for the respondent No.2 vehemently argued that the petitioner is not entitled for any compensation amount as he has played fraud by producing false documents in the ESI Scheme. That 28 can be considered at the time of consideration of the application filed under Section 340 of Cr.P.C. But, the petitioner is not entitled to compensation amount under the head medical expenses. Therefore, the compensation determined under the following heads:-
Sl.No. Head of Compensation Amount of
Compensation
1. Pain and Suffering 1,50,000.00
2. Food, Nourishment, Attendant and 2,84,000.00
Miscellaneous Expenses
3. Conveyance Expenses 10,000.00
4. Loss of future income on account of 16,63,200.00
disability
5. Future Medical Expenses 50,000.00
6. Cost of purchase of prosthesis 1,00,000.00
7. Loss of marriage prospects 1,00,000.00
Total 23,57,200.00
53) The advocate for the respondent No.2 has filed IA No.6 under
Section 340 read with Section 195 of Cr.P.C. The same is pending. That application is required to be considered along with the main petition.
54) I.A.No.6 is filed under Section 340 read with Section 195 of Cr.P.C. Brief facts of the application are as follows:-
In the petition, the petitioner was examined as PW 1 on 06.08.2019. He has filed an affidavit by way of his examination in chief. In the chief 29 examination affidavit, he has stated that he is a coolie and has not stated in his affidavit about reimbursement of medical bills amounting to Rs.5,48,216/ by Employees State Insurance Corporation through ESI No.5343123862. The respondent No.2 has examined 6 witnesses, including the Branch Manager of the ESIC as RW 3, Billing Officer, Accounts Department of M.S.Ramaiah Hospital as RW 4 and also H.R.Manager and Administrator of Phalad Agro Research Foundations Pvt., Ltd., as RW 2. RW 2 has deposed that the petitioner is not an employee of his company. RW2 has stated that holder of ESI No.5343213862 is one Manjunath,S/o.Galappa. RW 3 has stated that the said Manjunath S/o.Galappa has changed his father's name thrice as per records. Presently, Manjunath, S/o.Basavaraj is latest updated name entered in the records. In the year 2018, he changed his father's name as Manjunath S/o.Basavaraj, who is the petitioner and fraudulently applied for ESI Claim and got claim amount of Rs.5,48,216/-, behind this fraudulent act, they have involved medical mafia gang, the master mind of this act, changed his father's name thrice. From this fact, it is apparent that the medical mafia gang is involved in this act in order to defraud public money.
55) During the course of cross-examination of PW 1, he admitted his photos and signature on the application which was filed for ESI Scheme 30 and he did not disclose this fact in his chief examination affidavit. He has made false statement before the judicial proceedings on oath through affidavit and fabricated the documents. Therefore, it is an offence under Section 191 and 193 of IPC. Therefore, for holding inquiry, complaint is required to be made to the concerned Magistrate against the petitioner.
Second respondent has got good case both on merits and also on point of law and prayed to allow the application by lodging the complaint to the concerned Magistrate against the petitioner and safeguard the public money.
56) For that application, the learned advocate for the petitioner has filed objections, as follows:-
The application is not maintainable either in law or on facts. The second respondent has alleged that the petitioner has committed fraud in creating documents to have medical reimbursement from ESI and he has freely used the word medical mafia gang, mastermind of the act. Second respondent is not financially aggrieved. Therefore, it does not stand the test and scrutiny of essential ingredients of fraud as defined under Section 17 of the Indian Contract Act. Application is not filed by the party to the proceedings. Application is filed by the learned advocate representing the second respondent - Insurer. In civil proceedings, any IA should be 31 accompanied by an affidavit of the party in support of the prayer sought for in the said application. In this case, the party has not filed affidavit. In the statement of objections to the main petition, the respondent No.2 has not whispered about the alleged fraud. In the objections, the provisions of Order VI Rule 4 and Rule 6 of CPC are reproduced. Ingredients of Section 340 read with Section 195 are not attracted to the present case in hand.
57) It is specifically contended that the petitioner, having poor economical background, is eking his livelihood by doing coolie work, met with the alleged accident. He has been completely devastated and his future has been shattered at a very young age of 22 years. His right leg was amputated above knee. Left leg was injured very badly. He was hospitalised for medical treatment at Ramaiah Hospital. Petitioner has deposited Rs.3,20,000/- as initial advance. He has incurred couple of lakhs towards medical expenses. He has adduced his evidence. Including the payment made by ESI through M.S.Ramaiah Hospitla, he has incurred in all Rs.4,45,099/- towards his treatment.
58) When the petitioner was in the hospital, he was asked to sign certain papers so that he would get certain medical concession and reimbursement of advance amount remitted by him. In view of his economical condition, when the petitioner was undergoing such treatment, 32 he had just signed on places in the places shown to him. Act of the petitioner was innocent and his act in this regard is bonafide and certainly not intentional to defraud any one. Under the bonafide impression that he will get some concession in medical bills and reimbursement of medical expenses under some scheme, he has put his signature. There was reimbursement of Rs.2,97,000/- as against advance amount of Rs.3,20,000/-.
59) The petitioner is a law abiding citizen. He has not played any fraud. He is victim of circumstances, wherein he has now been landed and the petitioner has no intention of enriching himself by unlawful means. Petitioner has been exploited of his gullibility by unscrupulous persons when he was in such a state of medical trauma while undergoing treatment at hospital. Without prejudice, the petitioner is ready to deposit the amount of reimbursement received by him from ESI, if it is a tainted sum. He has not committed any mistake. Therefore, he is ready to deposit the amount.
60) There is no iota of truth in the allegation made by the second respondent. Second respondent - Insurance company is not really aggrieved as it is not put to any financial loss on account of the alleged fraud. Therefore, the application is not maintainable. Under Section 147 and 149 of the MV Act, second respondent has got very limited right of 33 defence. He can bring to the notice of the Tribunal that there is double claim made on the medical bills by the petitioner. He cannot seek for dis-allowance of the petition itself and prayed to dismiss the application.
61) Heard arguments on both sides on the application.
62) The Points that arise for my consideration are as under:-
1) Whether lodging of complaint in writing against the present petitioner before the JMFC to take proper and appropriate criminal action against him under Section 340 Cr.P.C., is required?
2) What order?
63) For the reasons stated in the subsequent paragraphs, my answer to the above points are as under:-
1) In the Negative,
2) As per final order, for the following:
REASONS
64) Point No.1:- Under Section 340 of Cr.P.C., if any Court is of the opinion that in the interest of justice, an enquiry should be made into any offence referred in Clause (b) of Sub-Section 1 of Section 195 of Cr.P.C., which appears to have been committed in or in relation to a proceeding in the Court or in respect of document produced or given in evidence in a proceeding in that Court, in such a situation, the Court may 34 after preliminary enquiry, if any, as it thinks necessary to record finding to that effect and make a complaint thereof in writing, send it to the Magistrate of First Class, having jurisdiction by taking sufficient security for the appearance of the accused before such Magistrate.
65) In the light of the above said provision, now the question is whether material is available against the petitioner for the offence under Section 195(b) of Cr.P.C., ie., any offence punishable under Section 193, 194, 195, 196, 199, 200, 205, 211 and 228 of IPC or offence punishable under Section 463, 471, 475, 476 of IPC or for criminal conspiracy committed or attempt to commit or the abetment of any offence specified in clause 1 or sub clause 2.
66) For better appreciation of the facts of the case, Sections referred are are extracted below:-
S.193 - Punishment for false evidence:
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall 35 also be liable to fine.
S. 194 - Giving fabricating false evidence with intent to procure conviction of capital offence Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is capital by the law for the time being in force in India shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
S.195 - Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment.
Whoever gives or fabricates false evidence intending thereby to cause, or knwoing it t obe liely that he will thereby cause, any person to be convicted of an offence which by the law for the time being in force in India, is not capital, but punishable with imprisonment for life, or imprisonment for a terms of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished.
S.196 - Using evidence known to be false Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he known to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.
S.199 - False statement made in declaration which his by law 36 receivable as evidence.
Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence.
S.200 - Using as true such declaraing knowing it to be false Whoever corruptly uses or attempts to use as true any such declaration, knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.
S.205 - False personation for purpose of act or proceeding in suit or prosecution.
Whoever falsely personates another and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
S.211 - False charge of offence made with intent to injure Whoever, with intent to cause injury to any person, institutes 37 or causes to be instituted any criminal proceedings against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
and if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
S.228 - Intentional insult or interruption to public servant sitting in judicial proceeding:
Whoever, intentionally offers any insult, or causes any interruption to any public servant while such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
S.463 - Forgery. - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.38
S.471 - Using as a genuine a forged document or electronic record. - Whoever fraudulently or dishonestly uses as genuine any (document or electronic record) which he knows or has reason to believe it to be a forged (document or electronic record), shall be punished in the same manner as if he had forged such document or electronic record.
S.475 - Counterfeiting device or mark used for authenticating documents described in section 467, or possessing counterfeit marked material - Whoever counterfeits upon, or in the substance of, any material, any device or mark used for the purpose of authenticating any document described in section 467 of this Code, intending that such device or mark shall be used for the purpose of giving the appearance of authenticity to any document then forged or thereafter to be forged on such material, or who, with such intent, has in his possession any material upon or in the substance of which any such device or mark has been counterfeited, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
S.476 - Counterfeiting device or mark used for authenticating documents other than those described in section 467, or possessing counterfeit marked material - Whoever counterfeits upon, or in the substance of, any material, any device or mark used for the purpose of authenticating any document or electronic record other than the documents described in section 39 467 of this Code, intending that such device or mark shall be used for the purpose of giving the appearance of authenticity to any document then forged or thereafter to be forged on such material, or who, with such intent, has in his possession any material upon or in the substance of which any such device or mark has been counterfeited, shall be punished punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
67) It is the specific case of the respondent No.2 that either in the petition or in the affidavit by way of examination in chief, the petitioner has not disclosed that he has got reimbursement of medical bills amounting to Rs.5,48,216/- by ESI through ESI No.5343123862. From the evidence of RW 2 to 4 adduced by the respondent No.2- Insurance Company, it is proved by the respondent No.2 - Insurance Company that the petitioner has filed an application by using ESI number and an amount of Rs.5,48,216/- was reimbursed. In the chief examination affidavit of PW 1, he has stated that he is a collie. But from the documentary evidence produced by the respondent No.2, it is clear that he has claimed the amount from that ESI number by furnishing information that he is working in Phalad Agro Research Foundation Pvt., Ltd.
68) To substantiate these facts, the respondent No.2 has relied on the evidence of RW 2 to 4.
40
69) RW 2 is the H.R.Manager and Administrator, Phalad Agro Research Foundation Pvt., Ltd., Magadi Road, Bengaluru. In his chief examination, he has deposed that he has been summoned to produce the Attendance Register, Wage Register, Salary Slip of Manjunath S/o.Basavaraju. The said Manjunath S/o.Basavaraju is not working in Phalad Agro Research Foundation Pvt., Ltd., with ESI No.5353123862. The said ESI number belongs to one Manjunath S/o.Galappa. Copy of ESI Card is produced.
70) In his further chief examination, he has produced the attested copy of Ration Card of Manjunath, Employee Provident Fund withdrawal details, attested copy of Aadhaar Card and attested copy of details of Manjunath G. details in the Company and they are marked as Ex.R.3 to R.8.
71) From going through the said documents, it is clear that Ex.R.3 is the ESI Card of the above IP Number. Ex.R.4 is the print out of search made through internet and Ex.R.5 is the copy of Ration Card of Manjunath, S/o.Galappa. Ex.R.6 is the Employees Provident Fund Withdrawal Details with reference to Manjunath, S/o.Galappa. Ex.R.7 is the Aadhaar Card of Manjunath G., S/o.Galappa. Ex.R.8 is the Employees Family Nominee details.
41
72) From these documents, it is clear that the person Manjunath G., S/o.Galappa referred in Ex.R.5 to R.8 is not the present petitioner.
73) During further cross-examination of PW 1, he has clearly admitted that in Ex.R.14, his photograph can be seen and it bears his signature. He further deposed that ESI Card number mentioned in Ex.R.14 does not belong to him. At the time of putting his signature on Ex.R.14 as per Ex.R.14(a), he did not know the details of the application. He further admitted that he never worked in Phalad Agro Research Foundation Pvt., Ltd.
74) From the above said admission given by PW 1 during the course of his cross-examination coupled with the documentary evidence produced by RW 2 and his oral evidence, the respondent No.2 - Insurance Company has proved that the petitioner never worked in Phalad Agro Research Foundation. Evidence of RW 2 remained unchallenged as the advocate for the petitioner has not cross-examined him.
75) In the objections to I.A.No.6 under Section 340 of Cr.P.C., the petitioner admitted reimbursement of the amount by the ESI.
76) The respondent No.2 - Insurance Company to substantiate the fact that by presenting false documents, amount was got reimbursed by the petitioner, relied on the evidence of RW 3 Branch Manager, Employees 42 state Insurance Corporation. RW 3 in his chief examination has deposed and produced documents pertaining to insured person bearing ESI No.5343123862 as Ex.R.9. The said IP Number is registered in the name of one Manjunath and he further deposed that his father's name is Basavaraju. The said insured persons' employer is Phalad Agro Research Foundation Pvt., Ltd. The employer of the insured person has changed employee's father's name 3 times. At the time of first registration in the year 2014, name of the father is registered as Galappa. Later, in the year 2016, name of the father is changed to Venkatappa and in the year 2018, father's name is changed as Basavaraju.
77) During the course of cross-examination done by the advocate for the petitioner, he has admitted that against father's name Basavaraju, marital status shown is as "Unmarried" and the date of birth is shown as 17.04.1996.
78) RW 4 is the Billing Officer of Accounts Department, M.S.Ramaiah Hospital, Benglauru. As discussed above, he has deposed that from ESI, they have received an amount of Rs.4,26,240/- towards IP Bill of Rs.5,48,216/- of the petitioner .
79) During the course of cross-examination of RW 3 and 4, nothing is elicited to disbelieve their evidence, except denial suggestions. 43
80) From the evidence of RW 3 and 4 and the Final Bill in Ex.R.11 File No.2, it is clear that in the IP Bill, it is clear that ESI has reimbursed the amount. On the contrary, the petitioner himself has admitted during the course of his cross-examination as well as objections to the petition that he has received reimbursement and he is ready to repay the same. Therefore, the respondent No.2 - Insurance Company proved that while the petitioner was taking treatment in Ramaiah Hospital, after his discharge, he got reimbursement of the bill amount through ESI.
81) During the course of cross-examination of PW 1 referred above, he has admitted his photograph on Ex.R.14 and his signature is at Ex.R.14(a). Ex.P.14 is the application for Employees State Insurance Corporation E Pehchann Card.
82) Now, the question is whether these materials are sufficient to take action against the petitioner under Section 340 Cr.P.C., is to be seen. On this point, the learned counsel for the respondent has relied on the following citations:-
1) Appeal (Criminal) 1188 of 2001 (Pritish Vs State of Maharastra and others), DoD 21.11.2001 (Supreme Court of India).
2) 1998 CRL.L.J. 4756 (A.Hiriyanna gowda and others Vs State of Karnataka and others) 44
3) 2018 (3) KCCR 2652 ( Libert A Vaz Vs State of Karnataka )
83) From going through the judgments relied on by the counsel for the respondent No.2, it is clear that in the first judgment, to get compensation in lieu of acquisition of land, the claimant has forged the sale deed. Compensation awarded by the Land Acquisition Officer of Rs.24,000/- was increased to Rs.10,30,000/- based on the forged sale deed.
Therefore, action was taken by ordering to file complaint in writing against the claimant before Judicial Magistrate First Class having jurisdiction to take proper and appropriate criminal action against them by invoking the provision under Section 340 read with Section 195 of Cr.P.C.
84) In the second judgment, his Lordship expressed that "Exercise of power under Section 340 Cr.P.C., has been seldom exercise. It has unfortunately become an order of the day, for false statements to be made in the course of judicial proceedings even on oath and attempts made to substantiate these false statements through affidavits or fabricated documents. It is very sad when this happens, because the real backbone of the working of the judicial system is based on the element of trust and confidence and the purpose of obtaining a statement on oath from the parties or written pleadings is in order to arrive at a correction decision after evaluating the respective positions....." 45
85) In the third judgment, action taken under Section 340 Cr.P.C., was confirmed by the High Court of Karnataka, as there was no need to offer an opportunity of hearing to the person against whom the court may file a complaint before the Magistrate.
86) There is no dispute regarding the above said principles laiddown by their lordships.
87) On the contrary, the learned counsel for the petitioner has relied on the following citations:-
1) AIR 2020 SUPREME COURT 1912 (C.Doddanarayanareddy (Dead) by Lrs and Ors Vs C.Jayarama Reddy (Dead) by hisrs and Others).
2) (2018) 1 Supreme Court Cases 271 ( Lynette Fernandes Vs Gerthe Mathias since deceased by Lrs).
3) (2011) 12 Supreme Court Cases 18 ( Saradamani Kandappa Vs S.Rajalakshmi and others).
88) In the first decision relied on by the learned advocate for the petitioner, their Lordships held that if any person has made out a ground of fraud coercion or undue influence in execution of any document, then he has to specifically plead such things and required to prove the same.
89) In the second judgment, their Lordships held that mere general 46 or plain allegation of fraud in the absence of any proof are not sufficient to prove fraud.
90) In the third judgment, their Lordships held that whenever a party wants to put forth contention of fraud, burden is on him to prove the same by pleading fraud in the pleadings.
91) In the light of the above said principles laiddown by their Lordships, now we can consider whether the material against the petitioner that he has not worked in Phalad Agro Research Foundation pvt., Ltd., and he has received reimbursement from ESI are sufficient to take action against him under Section 340 Cr.P.C., is to be seen.
92) It is the specific contention of the petitioner that when he was taking treatment in the hospital, he was asked to sign to get certain medical concession and reimbursement of advance amount paid by him. In view of his economical condition when he was undergoing such a long treatment, including 9 surgeries, he put signature on the places shown to him. He further pleaded that he is innocent. He has no intention to defraud any one.
Under the bonafide impression that he will get some concession in medical bills, he has put his signature.
93) He further contended that he has not played any fraud. He is victim of circumstances, wherein he has now been landed. He has no 47 intention to enrich himself by unlawful means. He has been exploited of his gullibility by unscrupulous persons, when he was in such a stage of trauma while undergoing treatment in hospital.
94) From going through the medical records referred to while discussing on Issue No.3, it is clear that the petitioner has undergone 9 surgeries and he has taken treatment for a pretty long period of 284 days as an inpatient and his economical condition is also not sound as he was earning his livelihood by doing coolie work.
95) Either in the petition or in the chief examination affidavit, the petitioner never claimed that he was working in Phalad Agro Research Foundation Pvt., Ltd., and during his cross-examination, PW 1 has admitted his photograph on Ex.P.14 and his signature at Ex.P.14(a) and clearly stated that he never worked in Phalad Agro Research Foundation Pvt., Ltd. It shows his ignorance that he is part of conspiracy or fraud in getting the amount reimbursed from the ESI.
96) Considering the nature of injuries sustained by him, the petitioner could not have approached either ESI Department or Phalad Agro Research Foundation Pvt., Ltd., to get an ESI Card as he was admitted in the hospital taking treatment during that period. From this, it is clear that some body has done this, but not the petitioner and the contention 48 of the petitioner that some body misrepresented him that he will get concession in medical bills and hence, he has put his signature, is believable one. As there are several schemes for persons who are having income below poverty line, therefore, even though it is proved that by misrepresenting that the petitioner has been working in Phalad Agro Research Foundation Pvt., Ltd., amount was received from ESI. But from the evidence of RW 3, it is clear that Phalad Agro Research Foundation Pvt., Ltd., has changed the father's name of the employee on three occasions, which is not similar name. Initially, his father's name was Galappa. Thereafter, it changed to Venkatappa and thereafter to Basavaraju. Therefore, it is clear that some body from Phalad Agro Research Foundation Pvt., Ltd., by changing the name of father of one of the employees, has falsely represented before the ESI. But, available record are not sufficient to identify or locate that particular individual or group of persons.
97) From the evidence of RW 3, it is clear that ESI Corporation came to know that by changing the name of father, false benefits were received from ESI. Therefore, it is proper to direct RW 3 to take action by lodging complaint with reference to change of father's name thrice and getting the amount from ESI. From the materials produced, it is clear that 49 one person is not involved in the case, but several persons are involved in getting such fraud claims.
98) In view of my above said observation, answers given by PW 1 during the course of his cross-examination and his physical condition as he he could not move from the bed even after discharge and at present also, he is on the wheel chair, therefore, mens rea required for the commission of criminal offence is absent in the present case with reference to the present petitioner. Therefore, there is no need to take action under Section 340 Cr.P.C., against the petitioner. But, it is brought to the notice of the Court from the above said materials that false ESI claims are being made by some persons in collusion with company or employee of private company by changing the name. Therefore, RW 3 is directed to initiate criminal action by lodging complaint. For the above said reasons, Point No.1 is answered in the Negative.
99) Issue No.4 and Point No.2:- In view of my above said discussion, I proceed to pass the following:-
ORDER The petition filed by the petitioner is allowed in part against the respondents.
The petitioner is entitled for a total compensation of Rs.23,57,200/- 50 with interest at the rate of 6% per annum, on Rs.22,07,200/- only, from the date of petition till realisation.
The respondent No.1 and 2 are jointly and severally liable to pay the compensation amount to the petitioners. The respondent No.2 - Insurer shall indemnify the respondent No.1 and pay the compensation amount with interest to the petitioner within two months from the date of this order.
Out of the compensation amount awarded to the petitioner, 50% with proportionate interest is ordered to be deposited in FD in his name for a period of 5 years in any nationalized or scheduled bank of his choice. Remaining 50% compensation amount with proportionate interest is ordered to be released to the petitioner. Interest on the FD is payable on maturity.
I.A.No.6 filed by the respondent No.2 is dismissed. Any how, based on the material available on record, RW 3 is directed to initiate criminal action.
Advocate's fee is fixed at Rs.1000/-.
Draw an award accordingly.
(Dictated to the Judgment Writer, transaction thereof corrected, revised, signed and then pronounced by me in the Open Court on this the 10th day of March'2022) (PRABHAVATHI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore ANNEXURE Witnesses examined on behalf of the petitioners:
P.W.1 : Manjunath @ Manjunatha
51
P.W.2 : Dr.Mahesh M.,
Documents marked on behalf of the petitioners:
Ex.P-1 : FIR with Complaint Ex.P-2 Spot Mahazar Ex.P.3 Spot Sketch Ex.P-4 : IMV Report Ex.P-5 : Wound Certificate Ex.P-6 Charge Sheet Ex.P-7 Copy of Order Sheet in CC 6638/2018 Ex.P.8 Accused Statement Copy Ex.P.9 5 Discharge Summaries Ex.P-10 Driving Licence Ex.P.11 Medical Bills Ex.P.12 Prescriptions Ex.P.13 6 Case Sheets Ex.P.13(a) Out Patient Clinical Record Ex.P.13(b) History of RTA Ex.P.14 OPD Book Ex.P.15 5 X rays Ex.P.16 and 2 Photographs 17 Ex.P.17(a) CD Ex.P.18 Transport Bill Ex.P.19 Medical Bills
Witnesses examined on behalf of the respondents :
RW 1 - Margaret RW 2 - Uday Shetty RW 3 - Ankith Kumar RW 4 - Bharath 52 RW 5 - Vinay Kumar RW 6 - N.Radhika Documents marked on behalf of the respondents: Ex.R.1- MLC Register Extract Ex.R.2 - Police Intimation Ex.R.3 - ESI Card Ex.R.4 - ESI Details obtained online Ex.R.5 - Attested copy of Ration Card Ex.R.6 - Employee Provident Fund withdrawal details Ex.R.7 - Attested copy of Aadhaar Card Ex.R.8 - Attested copy of details of Employee Manjunath G., Ex.R.9 - Details of ESIC pertained to insured person Ex.R.10 - Authorisation Letter Ex.R.11 - IP Medical Bill Ex.R.12 - Authorisation Letter Ex.R.13 - Letter written by Insurance Company to the insured Ex.R.14 - Copy of Policy Ex.R.14(a) - Signature of witness Ex.R.15 - Hospital Records of the petitioner (PRABHAVATHI M.HIREMATH) Chief Judge, Court of Small Causes & Member, Prl. M.A.C.T. Bangalore