Karnataka High Court
The National Insurance Company Limited vs Smt. Pushpa Alias Pushpalatha Heda And ... on 11 February, 2005
Equivalent citations: 2005(2)KARLJ564, 2005 A I H C 2806, (2005) 2 KANT LJ 564, (2005) 2 TAC 968, (2005) 3 ACC 75, (2005) 1 KCCR 677
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT Ram Mohan Reddy, J.
1. M.F.A. No. 350 of 2003 and M.F.A. CROB. No. 315 of 2003 in M.F.A. No. 5233 of 2003 are by the insurer, while M.F.A. CROB. No. 179 of 2003 in M.F.A. No. 350 of 2003 and M.F.A. No. 5233 of 2003 are by the claimant and M.F.A. CROB. No. 294 of 2004 is by the owner calling in question, the legality and validity of the judgment and award dated 15- 11-2002, passed in MVC No. 901 of 1995, on the file of the Court of the Additional MACT, Sirsi (for short, 'MACT'). Hence, they are clubbed, heard together and are being disposed of by this common judgment.
2. Facts in brief;
That the petitioner in MVC No. 901 of 1995 is the wife of the petitioner in MVC No. 913 of 1995. On 12-6-1995 while they were travelling from Belgaum towards Dandeli along with their children and in-laws, in the vehicle being a Tata Sumo bearing No. KA 22/M-3139 belonging to respondent 3, at about 9-15 p.m., near Geneshgudi at Kalapani, Mahindra Tempo vehicle bearing No. KA 31 of 810 belonging to the 1st respondent driven by its driver came at a high speed from the opposite side in rash and negligent manner, dashed against Tata Sumo, as a result of which, petitioners suffered fractures and other bodily injuries. The injured on being shifted to K.H.E.P. Hospital, Ganeshgudi, were extended first-aid and thereafter, shifted to W.C.P.M. Hospital, Dandeli and from there to Kshema Orthopaedic Hospital, Hubli. The petitioners claim to have undergone treatment as in-patient and despite the same, suffered physical disability.
3. The present appeals and cross-objections relate to the claim of the petitioner in MVC No. 901 of 1995. The claimant is said to have suffered a fracture of right shoulder bone below the neck of the femur, due to which free movement is restricted. The claimant was working as an Accountant in Shawmutt National Bank drawing a monthly salary of Rs. 1,65,000/- (3,500 US Dollars). The claimant having sustained huge monetary loss and suffered physically and mentally, due to the accident, claimed compensation of Rs. 2,50,00,000/-.
4. The petition was opposed by the respondent-Insurance Company by filing its statement of objections and refuting the claim for compensation. In the premise of the pleadings of the parties, the MACT, framed three issues.
5. The MACT recorded the evidence of two witnesses for the claimant and marked 73 documents as Exts. P. 1 to P. 73 while respondents examined one witness and marked one document as Ex. R. 1. The MACT, on consideration of the evidence both oral and documentary recorded the finding of rash and negligent driving on the part of the driver of the offending vehicle and awarded compensation of Rs. 1,06,00,188/- by judgment and award dated 15-11-2002.
6. The fact that the claimant sustained grievous injuries' in an accident that occurred on 12-6-1995 involving a motor vehicle owned by the cross-objector in M.F.A. CROB. No. 294 of 2004 in M.F.A. No. 5233 of 2003, insured with the appellant in M.F.A. No. 350 of 2003, and driven by its driver, is not in dispute. The finding of the MACT that the motor vehicle involved in the accident was driven at a high speed and in a rash and negligent manner by the driver, had caused the accident resulting in injuries to the claimant is not in controversy and therefore, there is no need for this Court to review the finding. The appeals and cross-objections of the insurer and insured are restricted to the quantum of compensation awarded by the MACT as being excessive whereas the claimant in her appeal and cross-objection questions the quantum of compensation as being inadequate, unjust and not within the contemplation of the Motor Vehicles Act, 1988 (for short, 'the Act').
7. Sri S.P. Shankar, learned Senior Counsel for the appellant-claimant would advance the following contentions:
(1) The appeal by the insurer alone is not maintainable on the quantum of compensation.
(2) Leave under Section 170 cannot be sought and granted in the light of willful and deliberate omission to file such an application before the MACT.
(3) Requirements of Section 170 read with Section 149(2) of the Act, are inviable and according to the decision of the Apex Court in the case of Babu Varghese and Ors. v. Bar Council of Kerala and Ors., , what is mandated in the statute shall be performed in that manner or not at all.
(4) The claimant having suffered irreversible permanent disability leading to laying off from a secured job, is 100% and not 30%, a tentative opinion of the local medical practitioner, and the amount of compensation, under different heads, does not meet the standards of just compensation as contemplated under the Act.
(5) The applications I.A. No. I and I.A. No. II, under Order 41, Rule 27, filed by the appellant, for additional evidence do fall for consideration to enable the Court to render a just and legal judgment.
8. Sri B.V. Acharya, learned Senior Counsel for the Insurance Company, while characterising the findings of the MACT as perverse based on conjectures, surmises and inadmissible evidence, and compensation as being excessive, would advance the following contentions:
(1) Application of Insurance Company, under Section 170 of the Act deserves to be allowed and if allowed, M.F.A. CROB. No. 315 of 2003 in M.F.A. No. 5233 of 2003 is maintainable.
(2) In view of the implied permission granted by the MACT including with regard to the quantum, Insurance Company's appeal in M.F.A. No. 350 of 2003 is maintainable.
(3) M.F.A. No. 5233 of 2003 is an appeal by the claimant against the Insurance Company, the 2nd respondent, hence under Order 41, Rule 33 of the CPC, the Insurance Company is entitled to seek reduction of compensation even though the appeal and cross-objections filed by the Insurance Company is not maintainable.
(4) Since the insured has preferred a cross-objection in M.F.A. CROB. No. 294 of 2003 in M.F.A. No. 5233 of 2003, this Court can suo motu question whether the compensation is just and reasonable, in the event the appeal of the Insurance Company is held not maintainable.
(5) There is collusion between owner of the motor vehicle involved in the accident and the claimant, hence the I.A. under Section 170 of the Act filed by the Insurance Company deserves to be allowed.
(6) On the merits of the claim, it was contended that the mere marking of the documents as exhibits does not dispense with its proof; the claimant took the matter lightly and in most cavalier manner; the claimant did not enter the witness-box to record evidence of nature of injury, pain and suffering, loss of income and disability caused; there is no proof of termination of employment, of the claimant, the salary drawn, medical evidence for treatment in U.S.A.; lastly, that the conversion rate of Dollar to Rupees was taken at Rs. 48A instead of Rs. 30/- shown in column 6 of the claim application.
(7) With regard to the I.A. Nos. I and II of 2004 filed by the claimant for additional evidence, the learned Senior Counsel would have no objection to remand the matter, reserving liberty to the Insurance Company to contest the case on merits.
9. Sri S.V. Prakash, learned Counsel for the owner of the motor vehicle, would adopt the contention advanced by Sri B.V. Acharya, learned Senior Counsel, insofar as it relates to the challenge to the quantum of compensation as excessive, while opposing the contention of collusion between the owner and the claimant.
10. I.A. No. I of 2004 is under Order 41, Rule 27 of the CPC dated 21-2-2004, filed by the appellant/claimant in M.F.A. No. 5233 of 2003, seeking leave of this Court to receive the following three documents, as additional evidence:
(i) Social security online: Disability and SSI, qualify and apply;
(ii) Social security online: Answers to your questions;
(iii) Form 1040 of US individual Income-tax return from 2002 filed by the appellant and her husband in their filing status as married, even if one had income.
11. The affidavit accompanying the application is sworn to by the father of the claimant, stating that the additional documents are essential and crucial for the determination of the appeal on the question of the 100% disability of the claimant, the social security payments made by the authorities in USA and on the ground that the claimant is unemployed due to the disability suffered on account of the injuries sustained in the accident.
12. I.A. No. II of 2004 is under Order 41, Rule 27 of the CPC dated 3-6-2004, filed by the appellant-claimant, in M.F.A. No. 5233 of 2003, seeking leave of this Court to receive by way of additional evidence, the Employment Verification Certificate dated 15-4-2004, issued by the employer of the claimant. The affidavit accompanying the application is sworn to by the father of the claimant, stating that the document contains material information sought for and insisted upon by the respondents and which could not be produced along with the application in I.A. No. I of 2004 for additional evidence.
13. The 2nd respondent-Insurance Company has opposed I.A. No. I of 2004 by filing its statement of objections, dated 19-3-2004, inter alia contending that the claimant seeks to fill up the lacuna in her case, and in any event the documents are not authentic and do not disclose claimants alleged financial loss. In addition, it is contended that the claimant did not choose to examine herself nor the doctor who treated her in the USA, as witnesses, muchless produce proof of income from the year 1995 onwards.
14. We have heard the learned Counsels for the parties and perused the judgment and decree, impugned.
15. In the present case it is not in dispute that the claimant sustained injuries-including a fracture of the right clavicle. The MACT having recorded a finding on the injuries, awarded Rs. 40,000/- towards medical expenses, transport and attendant charges; Rs. 8,35,478.40 towards loss of earning; Rs. 50,000/- towards loss of amenities of life; Rs. 50,000/- towards pain and suffering; Rs. 96,24,710.40 towards loss of future earning, totaling to Rs. 1,06,00,180/- with interest at 6% p.a. from the date of petition. The MACT took the disability at 30%, salary at dollars 3,500/- p.m. and applied multiple '16' for aged 42 of the claimant, and Rs. 47/- as the rate of exchange, to arrive at Rs. 96,24,710.40 as loss of future earning. The loss of earning is calculated for a period of 12 months when the claimant was off duty, at the rate of dollars 3,500 per month.
16. Although Sri B.V. Acharya, learned Senior Counsel would not seriously dispute the correctness of the compensation awarded under the heads, Medical expenses, attendant charges and conveyance of Rs. 40,000/- and Rs. 50,000/- each, under the head injury, pain and suffering and loss of amenities, Sri S.P. Shankar, learned Senior Counsel for the claimants would seriously dispute the same, and add that the deduction of Rs. 9,80,000/- being the amounts paid by the insurance towards hospitalisation expenses, ought to be reversed.
17. The insurer and insured seriously refute the claim that the monthly salary of the claimant was dollars Rs. 3,500/- and that she was terminated from services on account of disability, in addition to disputing the disability itself. The application of the exchange rate of Rs. 47 for every dollar, is attacked as impermissible and contrary to the claim of Rs. 30 as set out in the claim statement. The credence placed on the evidence of P.W. 1-the father of the claimant, as Power of Attorney Holder, as regards pain and suffering, employment etc., is characterised as perverse.
18. Sri S.P. Shankar, learned Senior Counsel would contend that the judgment and award is fraught with serious infirmities of non-consideration of the material on record and the failure to award compensation under several other heads of compensation.
19. Thus, the common grievance of the claimant, the insured and the insurer is that the MACT, while recording findings on the quantum of compensation, failed to evaluate the medical evidence in order to arrive at a just compensation. The evidentiary value of the documents produced by the claimant are not considered by the MACT, coupled with failure to apply its mind to the documents, their admissibility or otherwise as regards assessment of disability, salary, social security benefits, rate of exchange, loss of employment etc., in the process of recording findings on quantum of compensation.
20. Learned Counsels for the parties have pointed out to several documents, exhibited in the case, which would go to show that the MACT did not endeavour itself to apply its mind to the documents and their contents.
21. Having perused the judgment and award impugned, and the evidence both oral and documentary, we are of the considered opinion that there is failure of justice occasioned by the improper approach by the MACT, while evaluating the evidence on record, and not assigning reasons for discarding the evidence, which tantamounts to perversity of approach.
22. The MACT has also not followed the settled impartial formulae, in the matter of award of compensation, handed down in a catena of decisions of the Apex Court and this Court.
23. Keeping in mind the fact that claimant seeks to adduce additional evidence by producing certain documents in I.A. Nos. I and II of 2004 and the submission of Sri B.V. Acharya, learned Senior Counsel that the Insurance Company would have no objection for a remand of the case for fresh consideration, at this stage without expressing any opinion on the merits of the case, we consider it appropriate to set aside the judgment and award and remit the proceedings to the MACT for a fresh consideration of the case, on the question of quantum of compensation, after recording the evidence of the parties and pass orders in accordance with law. We order accordingly.
The appeal and cross-objections of the insurer and the cross-objections of the insured, as well as the cross-objections of the claimant shall stand disposed of in terms of the above direction. The contentions urged with regard to the maintainability of the appeal and cross-objections by the insurer and the consideration of the applications under Section 170 of the Act, by the Appellate Court, would however be considered in an appropriate case.