Karnataka High Court
The Divisional Manager, vs Sri. Rehumathulla W/O Ismailsab on 8 November, 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
DATED THIS THE 08TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
M.F.A.No.23314 OF 2011 (MV)
BETWEEN:
THE DIVISIONAL MANAGER,
ICICI LOMBARD GENERAL INSURANCE CO. LTD.
MAYOOR COMPLEX, OPP. OLD BUS STAND,
DOUBLE ROAD, BELLARY.
NOW REPRESENTED BY ITS MANAGER LEGAL
....APPELLANT
(BY SRI. NAGARAJ C. KOLLOORI, ADVCOATE)
A N D:
1. SRI. REHAMATTULLA W/O ISMAILSAB
AGE: 19 YEARS, OCC: EX-LORRY CLEANER,
R/O: D.C. NAGAR, BELLARY.
2. SRI. RIYAZ S/O RASOOLSAB
AGE: 24 YEARS, OCC: DRIVER (JCB OPERATOR)
R/O: WARD NO. 24, BEHIND SELECT
FUNCTION HALL, NEAR TRAINING SCHOOL,
CHOUL BAZAAR, BELLARY.
TQ AND DIST: BELLARY.
3. SMT. A. LAVANYA W/O A. NARAYAN
AGE: 30 YEARS, OCC: BUSINESS,
R/O: 1ST CROSS, 20TH WARD, MARATHA STREET
DEVINAGAR, BELLARY.
TQ AND DIST: BELLARY.
... RESPONDENTS
(BY SRI. B. S. SANGATI, ADVOCATE FOR R1)
(BY SRI. HEMANTKUMAR L. HAVARAGI, ADVOCATE FOR R2)
(BY SRI. V.SHIVARAJ HIREMATH, ADVOCATE FOR R3)
2
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF THE MOTOR VEHICLES ACT,1988, AGAISNT
THE JUDGMENT AND AWARD DATED 15.06.2010 PASSED IN
MVC.NO.145/2008 ON THE FILE OF THE MEMBER, MACT-XII,
BELLARY, AWRDING THE COMPENSATION OF RS.5,28,080/-
WITH INTEREST AT THE RATE OF 6% P.A., FROM THE DATE OF
PETITION TILL ITS DEPOSIT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal has been preferred by the appellant/insurer challenging the judgment and award passed by Motor Accident Claims Tribunal-XII, Bellary in MVC No.145 of 2008 dated 15.06.2010.
2. Though the matter is listed for Orders, with the consent of the learned counsel appearing for the parties, the appeal is taken up for final hearing and disposed of by this judgment.
3. Brief facts of the case in a nutshell are that, on 12.05.2007 at about 08.30. a.m. Rehamatulla petitioner was greasing under the lorry as he was working as a cleaner, at sand yard of Rupanagudi 3 village in Bellary Taluka. At that time, the driver of the lorry bearing registration No.KA-34/8625 drove the same rashly and negligently and dashed against the petitioner. As a result petitioner sustained grievous injuries and immediately he was shifted to the hospital. It is further contended that he was working as a cleaner and was earning Rs.5,000/- per month and for having sustained the injuries he filed the claim petition under Section 166 of MV Act.
4. In pursuance of the notice, respondent Nos. 1 and 2 appeared and filed their objections. Respondent No.3 by denying the contents of the petition he further contended that the policy has been issued in respect of the offending vehicle and the respondent driver was not holding valid and effective driving licence to drive the type of vehicle involved in the accident and as such he is not liable to pay any compensation. He further contended that there was no valid permit to ply the said 4 vehicle on road and on the said route. On these grounds he prayed for dismissal of the said petition.
On the basis of the above pleadings the Tribunal framed the flowing issues:-
"1. Whether the petitioner proves that, he has sustained personal injuries in RTA that was occurred on 12.05.2007 at about 08.30 a.m., near Sand Yard, Rupanagudi village of Bellary taluk, due to rash and negligent driving of the lorry bearing Reg.No.KA- 34/8265 by the 1st respondent ?
2. Whether 3rd respondent proves that 1st respondent was not holding a valid and effective driving licence to drive the vehicle in question and 2nd respondent was violated the terms and conditions of the policy ?
3. Whether the petitioner is entitled for compensation as prayed for ?
4. What order or award ?"
In support of the case of the petitioner, petitioner got examined himself as PW-1 and got examined the Doctor as PW-2 and got marked Ex.P1 to P36. The respondents have not led any oral evidence and have not got marked any documents.5
After hearing the parties to the lis the impugned judgment and award came to be passed.
5. The main grounds urged by the learned counsel for the appellant are that, the compensation awarded under the various heads is on the higher side. Especially, the compensation awarded under the head of pain and suffering and the loss of future earnings are on the higher side. He further contended that though the Doctor is not a treated Doctor, Tribunal without considering such evidence has awarded the compensation. On these grounds he prayed for allowing the appeal by reducing the compensation awarded by the Tribunal and to award just compensation.
6. Per contra the learned counsel appearing on behalf of respondent/claimant by justifying the judgment and award he further contended that the compensation awarded under various heads, if compared to the injuries is on the lower side and he 6 prays for confirming the order of the Tribunal. On these grounds he prayed for dismissal of the appeal.
7. The accident is not in dispute, so also the involvement of the offending vehicle insured with the respondent/insurance company.
8. The main contention which has been raised by the learned counsel for the appellant is that the compensation awarded by the Tribunal is exorbitant on various heads. As could be seen from the judgment and award and the certified copy of Ex.P4 wound certificate issued by VIMS hospital Bellary, the petitioner suffered with fracture of deep Rami of left pubic bone, pain tenderness present over the right thigh and said first injury is grievous in nature. The petitioner has not sustained grievous injuries, but as could be seen from the evidence of Doctor Chandrashekar. S. Ratkal, who came to be examined before the Tribunal, the petitioner had a bladder stone with 7 complete loss of urethra and deformed penis and extensive scarring in the perineum, as such he was carrying catheter directly into the bladder from supra pubokc region, i.e., the petitioner is on supra public systostomy. He has also further deposed that the petitioner has no marital prospectus as he has lost total potentiality and he also opined that the injuries suffered by the petitioner amounts to total impotency, though the said Doctor is not a treated Doctor, but the records reveals that he is specialist in the field of Genitor Urinary system and he is a Surgeon in that field. When the said Doctor has considered to be an expert in the said field and has opined that there is a total loss of potentiality and that there is a loss of urethra and deformed penis, then under such circumstances, the same can be accepted. Though the said Doctor has not specifically deposed what is the percentage of the disability, but the Tribunal after considering the fact 8 that the said disability is to the extent of 50% has awarded compensation on various heads as follows:-
1. For the injuries, pain and sufferings Rs.1,00,000/-
2. For medical expenses, Rs. 25,080/-
3. Towards attendant charges Rs. 9,000/-
4. Towards conveyance charges Rs. 9,000/-
5. Towards extra nourishment Rs. 9,000/-
6. Towards miscellaneous and other Rs. 9,000/-
charges
7. For the loss of earnings during the Rs. 18,000/-
period of hospitalization
8. For the loss of marriage prospects, Rs. 3,24,000/-
for total impotency, loss of future amenities of life, viz., discomfort, inconvenience and frustration and also for such disability which would come in his way to earn as before
9. Towards future medical expenditure Rs. 25,000/-
Total Rs.5,28,080/-
9. By going through the injuries and the evidence of PW-2 Doctor and the other material which was made available, the injuries suffered by the petitioner appears to be serious and even he has lost the urethra and deform penis and even the petitioner is on supra public systostomy. Under the said facts and circumstances, the petitioner will not be having any future life and he cannot complete his entire life without 9 there being any complete cure and the said disability will be continued throughout his life.
10. Under the said fact and circumstances, the compensation awarded by the Tribunal appears to be just and proper. Even the Tribunal has taken into consideration the loss of marriage prospects and total impotency and the future loss of amenities in the life and in that light has awarded an amount of Rs.3,24,000/-. Under the said facts and circumstances, the said compensation appears to be just and proper. Even the compensation under pain and suffering also appears to be reasonable.
11. Keeping in view the above said fact and circumstances, I feel that the appellant/insurer has not made out any grounds so as to interfere with the order of the Tribunal and the appeal is devoid of merits and as such the appeal is dismissed.
10
12. The statutory amount in deposit to be transmitted to the Tribunal and the Tribunal is directed to disburse the amount as per the award in respect of the claimant/respondent.
Sd/-
JUDGE RHR/-