Karnataka High Court
Reliance General Insurance Company ... vs P S Ramu on 27 June, 2013
Author: B.Sreenivase Gowda
Bench: B.Sreenivase Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE, 2013
BEFORE
THE HON'BLE MR. JUSTICE B.SREENIVASE GOWDA
Miscellaneous First Appeal No. 6578 of 2010 (MV)
C/W
MFA. CROB No. 61 of 2011
C/W
Miscellaneous First Appeal No. 6579 of 2010 (MV)
C/W
MFA. CROB No. 62 of 2011
IN MFA 6578/2010
BETWEEN
RELIANCE GENERAL INSURANCE
COMPANY LIMITED,
BRANCH OFFICE: I FLOOR,
MYSORE TRADE CENTRE,
OPP.KSRTC SUB URBAN BUS STAND,
MYSORE,
HERE IN REPRESENTED BY THE
REGIONAL OFFICE: NO.28, 5TH FLOOR,
EAST WING, CENTENARY BUILDING,
M. G. ROAD, BANGALORE - 560 001.
BY ITS DEPUTY MANAGER(CLAIMS).
... APPELLANT
(By Sri. H. S. LINGARAJ, ADV.)
AND
1. P S RAMU
2
AGED ABOUT 46 YEARS,
S/O. SIDDANAIKA,
R/AT NO.NHB-7, MIG- II,
I STAGE, KHB COLONY
HOOTAGALLI, MYSORE - 570 018.
2. Y. T. VISHWANATH,
S/O. Y B THIMMAIAH,
AGED 29 YEARS,
R/AT. SEEGEHOSUR VILLAGE,
MADALAPURA POST, KOODIGE,
KUSHALNAGAR, SOMWARPET TALUK,
COORG DISTRICT.
3. B. B. BASAVARAJU,
AGED ABOUT 55 YEARS,
S/O. BASAVARAJA SETTY,
NO.24/A, NIMISHAMBA LAYOUT/NAGARA
KUVEMPUNAGAR, MYSORE.
... RESPONDENTS
(By Sri. O. SHIVARAMA BHAT, ADV. FOR R.1,
R.2 AND R.3 ARE SERVED)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.04.2010 PASSED IN
MVC NO.295/2008 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-V, MEMBER, ADDITIONAL
MACT, MYSORE AWARDING A COMPENSATION OF
Rs.5,67,000/- WITH INTEREST @ 6% P.A. FROM THE DATE
OF PETITION TILL REALIZATION.
IN MFA CROB 61/2011
BETWEEN
P S RAMU
AGED ABOUT 46 YEARS,
S/O. SIDDA NAIKA,
3
R/AT NO.NHB-7 MIG- II,
I STAGE, KHB COLONY,
HOOTAGALLI, MYSORE - 570 018.
... CROSS OBJECTOR
(By SRI. O. SHIVARAMA BHAT, ADV.)
AND
1. RELIANCE GENERAL INSURANCE
COMPANY LIMITED,
BRANCH OFFICE: I FLOOR,
MYSORE TRADE CENTRE,
OPP.KSRTC, SUB-URBAN BUS STAND,
MYSORE - 1,
REPRESENTED BY REGIONAL OFFICE,
NO.28, 5TH FLOOR,
EAST WING, CENTENARY BUILDING,
M. G. ROAD, BANGALORE - 560 001.
REP. BY DEPUTY MANAGER.
2. Y. T. VISHWANATH,
S/O. Y B THIMMAIAH
AGED 30 YEARS,
R/AT. SEEGEHOSUR VILLAGE,
MADALAPURA POST, KOODIGE,
KUSHALNAGAR, SOMWARPET TALUK,
COORG DISTRICT.
3. B. B. BASAVARAJU,
AGED ABOUT 55 YEARS,
S/O. BASAVARAJA SETTY,
NO.24/A, NIMISHAMBA LAYOUT/NAGARA
KUVEMPUNAGAR, MYSORE.
... RESPONDENTS
(By Sri. H. S. LINGARAJ, ADV. FOR R.1,
R.2 NOTICE DISPENSED WITH)
4
THIS MFA.CROB IN MFA NO.6578/2010 FILED
UNDER ORDER 41 RULE 22 OF CPC, AGAINST THE
JUDGMENT AND AWARD DATED 06.04.2010 PASSED IN
MVC NO.295/2008 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-V, MEMBER, ADDITIONAL
MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA 6579/2010
BETWEEN
RELIANCE GENERAL INSURANCE
COMPANY LIMITED,
BRANCH OFFICE: I FLOOR,
MYSORE TRADE CENTRE,
OPP: KSRTC SUB URBAN BUS STAND,
MYSORE,
HERE IN REPRESENTED BY THE
REGIONAL OFFICE: NO.28, 5TH FLOOR,
EAST WING, CENTENARY BUILDING,
M. G. ROAD, BANGALORE - 560 001.
BY ITS DEPUTY MANAGER (CLAIMS).
... APPELLANT
(By Sri. H. S. LINGARAJ, ADV.)
AND
1. VISHALAKSHI,
W/O. P. S. RAMU,
R/A. NO. NHB 7, MIG II
I STAGE, KHB COLONY, HOOTAGALLI,
MYSORE - 570 018.
2. Y. T. VISHWANATH,
5
S/O. Y. B. THIMMAIAH,
AGED ABOUT 29 YEARS,
R/AT. SEEGEHOSUR VILLAGE,
MADALAPURA POST, KOODIGE,
KUSHALANAGAR, SOMWARPET TALUK,
COORG DISTRICT.
3. B. B. BASAVARAJU,
AGED ABOUT 55 YEARS,
S/O. BASAVARAJA SETTY,
NO.24/A, NIMISHAMBA LAYOUT/NAGARA
KUVEMPUNAGAR, MYSORE.
... RESPONDENTS
(By Sri. O. SHIVARAMA BHAT, ADV. FOR R.1,
R.2 AND R.3 ARE SERVED)
******
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 06.04.2010 PASSED IN MVC
NO.297/2008 ON THE FILE OF FAST TRACK COURT-V &
ADDITIONAL MACT, MYSORE, AWARDING A COMPENSATION
OF RS.4,20,000/- WITH INTEREST AT 6% P.A. FROM THE
DATE OF PETITION TILL REALISATION.
IN MFA CROB 62/2011
BETWEEN
VISHALAKSHI
W/O. P. S. RAMU
AGED 42 YEARS
R/AT. NO NHB-7, MIG-II,
I STAGE, KHB COLONY,
HOOTAGALLI
MYSORE - 018
... CROSS OBJECTOR
6
(By Sri. O. SHIVARAMA BHAT, ADV.)
AND
1. RELIANCE GENERAL INSURANCE CO.LTD.,
BRANCH OFFICE: 1ST FLOOR,
MYSORE TRADE CENTRE, OPP. KSRTC,
SUB-URBAN STAND,
MYSORE,
REPRESENTED BY REGIONAL OFFICE,
NO. 28, 5TH FLOOR, EAST WING,
CENETENARY BUILDING,
M G ROAD, BANGALORE - 570 001.
REPRESENTED BY DEPUTY MANAGER.
2. Y. T. VISHWANAT,
S/O. Y. B. THIMMAIAH,
AGED ABOUT 30 YEARS,
R/AT. SEEGEHOSUR VILLAGE,
MADALAPURA POST,
KOODIGE, KUSHALNAGAR,
SOMWARPETE TALUK
COORG DISTRICT -574 102.
3. B. B. BASAVARAJU,
S/O. BASAVARAJA SETTY,
AGED 55 YEARS,
R/AT. NO.24/A,
NIMISHAMBA LAYOUT/NAGARA,
KUVEMPUNAGAR,
MYSORE-570 001.
... RESPONDENTS
(By Sri. H. S. LINGARAJ, ADV. FOR R.1,
R.2 NOTICE DISPENSED WITH)
7
THIS MFA.CROB IN MFA NO.6579/2010 FILED
U/ORDER 41 RULE 22 OF CPC, AGAINST THE
JUDGMENT AND AWARD DATED 06.04.2010 PASSED IN
MVC NO.297/2008 ON THE FILE OF PRESIDING
OFFICER, FAST TRACK COURT-V, MEMBER,
ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
These MFAs and MFA CROBs coming on for Orders
this day, the Court, delivered the following:
JUDGMENT
MFA No. 6578 and 6579 of 2010 are filed by the insurer of offending vehicle challenging the quantum of compensation awarded as excessive and seeking reduction, whereas MFA CROB No. 61 and 62 of 2011 are filed by the claimants seeking enhancement of compensation awarded by the Tribunal.
2. As these appeals and MFA CROBs are arising out of a common road traffic accident and common judgment passed by the Tribunal, they are heard together, admitted and disposed of by this common judgment. 8
3. For the sake of convenience parties are referred to as they are referred to in the claim petition before the Tribunal.
4. As there is no dispute regarding injuries sustained by the claimants in a road traffic accident occurred on 1-6-2008 due to rash and negligent driving of Tata Sumo bearing registration No.KA-09-A-6196 by its driver and liability of the insurer of the offending vehicle, the only point that remains for my consideration in the appeal is:
Whether compensation awarded by the Tribunal is just and proper or does it call for reduction or enhancement ?
MFA No.6578/2010 c.w. MFA CROB 61/2011 (MVC No.295/2008) :
The injured claimant in this appeal and cross objection is one P.S.Ramu.9
5. As per Ex.P.3 - wound certificate issued by the Medical Officer, B.M.Hospital, Mysore, claimant has sustained the following injuries ;
1. Fracture right humerus middle 1/3rd,
2. Abrasion 1" x ½" over right side of forehead,
3. Contusion over the right cheek size 3" x 2",
4. Fracture both bones of right leg and
5. Tenderness over the hip and pelvis Injuries 1, 4 and 5 are described as grievous in nature and other two injuries are described as simple in nature.
Injuries sustained and treatment taken by him are supported by oral evidence of the claimant and doctor examined as P.Ws.1 and 3 respectively.
P.W.3 - Dr. N.N.Rao in his evidence has stated, claimant has sustained injuries indicated in the wound certificate - Ex.P.3 and treated as inpatient at B.M.Hospital, Mysore and on examination he found the following :
10
1. Type I compound fracture of right humerus
2. Type II compound fracture of both bones of the right leg
3. Unstable Trochantric fracture of the right hip.
7. The following procedure were done on 4-6-08 under brachial block and SAB
1. Wound debridement and toileting with closed intra medullary interlocking (IMIL) tibial nailing (ETN) done for right tibia.
2. Closed proximal femoral nailing (PFN) right hip.
3. Bone graft harvesting from right posterior iliac crest.
4. ORIF with LC-DCP for right humerus fracture with bone grafting.
Post operative period was uneventful and the patient was discharged on 10-6-08.
8. On examination of the claimant on 30-1-10 clinically and radiologically, the following are found :
1. Right humerus fracture has not united with loosening of implant 11
2. Right leg fracture united well with implants in situ
3. Fracture of right hip united well with implant in situ.
9. Considering four fractures and other injuries sustained by the claimant, a sum of Rs.70,000/- is awarded towards pain and suffering as against Rs.30,000/- awarded by the Tribunal under this head.
10. As Rs.2,46,532/- awarded by the Tribunal towards medical expenses is as per bills - Ex.P.15 produced by the claimant for the said sum, the same is just and proper and there is no scope for interference under this head.
11. He was treated as inpatient for 9 days in B.M.Hospital, Mysore. Considering the same, Rs.15,000/- awarded by the Tribunal towards medical and incidental expenses is just and proper and there is no scope for interference under this head.
12
12. Claimant has not produced documents regarding nature of leave and number of days of leave availed during the period of treatment and rest. Nevertheless, nature of injuries suggest that, he must have been under rest and treatment for a period of two months. Therefore, a sum of Rs.30,000/- is awarded towards loss of income during laid up period.
13. Discussion made in para 11 of the judgment shows, claimant has continued his employment as a Service Assistant in Automotive Axles Factory and started drawing more salary i.e. Rs.19,346/- per month than what he was drawing prior to the accident. Therefore, there is no loss of employment and awarding compensation towards loss of future income does not arise. Nevertheless, he has to suffer the disability stated by the doctor to whole body and certain amount of discomfort and unhappiness for the rest of his life. Considering the same, Rs.1,25,000/- awarded 13 by the Tribunal towards loss of amenities is just and proper and there is no scope for interference.
P.W.3 - doctor has stated, claimant has to undergo further surgeries for removal of implants from the right hip and right leg and further surgery of re-osteosynthesis and bone grafting after removal of implant for the right humerus and the cost of these three procedures in their hospital is approximately rupees two and a half lakhs. So far, claimant has not undergone the said procedures. Therefore, justice would be met if a sum of Rs.1,00,000/- is awarded towards future medical expenses as against Rs.1,50,000/- awarded by the Tribunal under this head.
14. Thus the claimant is entitled for the following compensation:
1) Pain and suffering Rs. 70,000/-
2) Medical expenses Rs.2,46,532/-
3) Incidental expenses Rs. 15,000/-
3) Towards loss of income
during laid up period Rs. 30,000/-
4) Towards loss of amenities Rs. 50,000/-
5) Loss of disability Rs. 50,000/-
14
6) Future medical expenses Rs.1,00,000/-
_______________
Total Rs.5,61,532/-
Tribunal has awarded Rs.5,67,000/-
15. Difference is less than Rs.10,000/-. Therefore, there is no scope for either reduction or enhancement. MFA No.6579/2010 c.w. MFA CROB 62/2011 (MVC No.297/2008) :
16. The injured claimant in this appeal and cross objection is one Smt. Vishalakshi.
17. As per Ex.P.17 - wound certificate issued by the Medical Officer, B.M.Hospital, Mysore, claimant has sustained the following injuries ;
1. Dislocation of right elbow joint, fracture upper end of ulna and
2. Pain over the back and not able to lift the legs, anterior compression fracture 2nd lumbar vertebra.
15
18. Medical Officer is of the opinion that injuries 1 and 2 with reference to x-ray report are grievous in nature.
Injuries sustained and treatment taken by her are supported by oral evidence of the claimant and doctor examined as P.Ws.2 and 3 respectively.
P.W.3 - Dr. N.N.Rao in his evidence has stated, claimant sustained injuries indicated in the wound certificate - Ex.P.17 and treated as inpatient at B.M.Hospital, Mysore and on examination he found the following :
1. Fracture dislocation of L2 vertebra with weakness of left lower limb
2. Fracture dislocation of the right elbow joint with posterior interosseous nerve injury
3. Fracture superior and inferior pubic rami of pelvis.
19. The following procedure were done on 3-6-08 under general anesthesia.
1. Bone graft harvesting from both posterior iliac crest.
16
2. Osteosynthesis with pedicle screw using ZETA system for L.2 vertebra fracture with spine fusion from L.1 toL.3 level.
3. Osteosynthesis with tension band wiring and transcapitellar K-wire stabilization with bone grafting and above elbow POP slab application. Post operative period was uneventful and the patient was discharged on 10-6-08.
20. On examination of the claimant on 30-1-10 clinically and radiologically, the following are found :
1. LS spine - fracture has united with implant in situ
4. Right elbow - fracture has united with implant in situ and arthritis of elbow joint.
21. Considering two major fractures and other injuries sustained by the claimant, a sum of Rs.50,000/- is awarded towards pain and suffering as against Rs.30,000/- awarded by the Tribunal under this head. 17
22. As Rs.1,83,818/- awarded by the Tribunal towards medical expenses is as per bills - Ex.P.24 produced by the claimant for the said sum, the same is just and proper and there is no scope for interference under this head.
23. She was treated as inpatient for 9 days in B.M.Hospital, Mysore. Considering the same, Rs.15,000/- awarded by the Tribunal towards medical and incidental expenses is just and proper and there is no scope for interference under this head.
24. Claimant is working as an Assistant Teacher in Government Primary School. She had availed leave for treatment on two occasions. The Tribunal calculating the number of days of leave availed by her during the period of treatment and rest has awarded a sum of Rs.70,916/- towards loss of earned leave. The same is just and proper and therefore, there is no scope for interference. 18
25. Claimant after recovering from injuries has continued her employment. Therefore, there is no loss of employment and awarding compensation towards loss of future income does not arise. Nevertheless, she has to suffer the disability stated by the doctor to whole body and certain amount of discomfort and unhappiness for the rest of her life. Considering the same, justice would be met, if a sum of Rs.30,000/- is awarded towards loss of amenities and Rs.30,000/- towards permanent disability.
26. P.W.3 - doctor in his evidence has stated, claimant has to undergo further surgeries for removal of implants and excision of radial head and the cost of both the procedures in their hospital is approximately rupees two lakhs. So far, claimant has not undergone the said procedures. She is an Assistant Teacher in Government Primary School. There is scope for reimbursement also. Therefore, justice would be met if a sum of Rs.50,000/- is 19 awarded towards future medical expenses as against Rs.1,20,000/- awarded by the Tribunal under this head.
27. Thus the claimant is entitled for the following compensation:
1) Pain and suffering Rs. 50,000/-
2) Medical expenses Rs.1,83,818/-
3) Incidental expenses Rs. 15,000/-
4) Towards loss of income
during laid up period Rs. 70,916/-
5) Towards loss of amenities Rs. 30,000/-
6) Loss of disability Rs. 30,000/-
7) Future medical expenses Rs. 50,000/-
_______________
Total Rs.4,29,734/-
Tribunal has awarded Rs.4,20,000/-
28. Difference is less than Rs.10,000/-. Therefore, there is no scope for either reduction or enhancement.
29. Accordingly both the appeals and cross objections are dismissed.
20
30. Amount in deposit is ordered to be transferred to the Tribunal for disbursement in terms of the award of the Tribunal.
No order as to costs.
Sd/-
JUDGE Mgn/-
CT: bs*