Karnataka High Court
Shri. Iqbalahamed S/O.Maqbool ... vs Vice-Chairman on 6 January, 2017
Author: Raghvendra S. Chauhan
Bench: Raghvendra S. Chauhan
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE RAGHVENDRA S. CHAUHAN
AND
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
M.F.A. NO.23227/2013 (MV)
BETWEEN :
SHRI. IQBALAHAMED
S/O. MAQBOOL DHANEBAG
AGE: 41 YEARS, OCC: MASON (NOW NIL)
SINCE MENTALLY DISABLED
REPRESENTED BY HIS NEXT FRIEND WIFE
SMT: SALAMA
W/O. IQBALAHAMED DHANEBAG
AGE: 25 YEARS, OCC: HOUSEHOLD WORK
R/O. MASJID GALLI, DANDELI
DIST: KARWAR, NOW AT PERANWADI,
TQ: & DIST: BELGAUM.
... APPELLANT
(BY SMT. GEETHA K. M. @ PAWAR, ADVOCATE)
AND :
1. VICE-CHAIRMAN
M/S. PATEL INTEGRATED LOGISTICS LTD.,
NO.19TH, K. M. MADANYAKANHAALI
MADVARA (POST) BANGALORE,
(OWNER OF THE CANTER TEMPO
BEARING REGISTRATION NO.KA-52/1723)
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2. THE MANAGER
THE RELIANCE GENERAL
INSURANCE COMPANY LTD.,
HAVING ITS DIVISIONAL OFFICE
AT KOLHAPUR CIRCLE
NEHRU NAGAR, BELGAUM.
(INSURER OF THE CANTER TEMPO
BEARING NO.KA-52/1723) .
... RESPONDENTS
(BY SRI R. H. ANGADI, ADVOCATE FOR R1;
SRI G. N. RAICHUR, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MV ACT, AGAINST THE
JUDGMENT AND AWARD DATED:02-01-2012 PASSED IN MVC
NO.167/2011 ON THE FILE OF PRESIDING OFFICER, FAST TRACK
COURT-III AND MEMBER, ADDL. MACT, BELGAUM, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
RAGHVENDRA S. CHAUHAN J., DELIVERED THE FOLLOWING:
JUDGMENT
Having turned into a vegetable, after a vehicular accident, having saddled his wife with the responsibilities of having to look after a physically and mentally challenged husband, three children, and an aged mother-in-law, and hoping for enhancement of the compensation, the injured, Mr. Iqbal Ahamed, has filed this appeal through his wife, Smt. Salama.
2. The appellant has challenged the legality of the Award dated 02.01.2012, passed by the Fast Track Court - III, and 3 Additional M.A.C.T., Belgaum, ('the learned Tribunal', for short) whereby, the learned Tribunal has granted a compensation of Rs.5,34,000/-, along with an interest at 8% p.a., from the date of filing of the petition till the date of realization to the appellant.
3. Briefly the facts of the case are that on 18.11.2009, the appellant was riding as a pillion rider, on a motor cycle being driven by his friend, Mr. Jafar Sayad Quadar Mulla. When the motor cycle reached near MRF Factory, Usgao, Ponda, at about 8.15 p.m., suddenly a Canter Tempo, bearing Registration No. KA-52/1723, coming from Ponda, and going towards Belgaum, being driven in a rash and negligent manner, dashed against the motor cycle. Consequently, the appellant suffered large number of grievous injuries. Immediately, he was rushed to the Goa Medical Hospital, Bambolium, where he was hospitalized from 19.11.2009 till 28.12.2009. During his hospitalization, he underwent two operations in which his fractures, (especially in his right leg), were nailed. Since the appellant had also suffered head injuries, he was treated by Dr. G. M. Wali, Neuro-Specialist at the Neuro-Specialties Centre in Belgaum. Since he had not recovered fully, he was 4 further treated at the Government Hospital, Miraj, as an indoor patient from 24.06.2010 to 15.07.2010. Since he became mentally challenged, the injured filed his claim petition through his wife, Ms. Salama.
4. In order to substantiate his case, the claimant examined three witnesses, including his wife, Smt. Salama as P.W.1, Dr. N. Y. Joshi as P.W.2, and Dr. S. R. Angadi as P.W.3. Further, he submitted twenty-seven documents. On the other hand, the Insurance Company did not examine any witness, but did submit the Insurance Policy as a single document. After going through the oral and documentary evidence, the learned Tribunal granted the compensation, as aforementioned. Hence, this appeal for enhancement before this Court.
5. Mrs. Geeta K. M., the learned counsel for the appellant, has raised the following contentions before this Court:-
Firstly, while assessing the income of the appellant, the learned Tribunal has ignored the fact that the appellant was a skilled worker, as he was working as a mason; the learned 5 Tribunal has taken his income as merely Rs.125/- per day. Considering the fact that he was a skilled worker, his income should have been taken as Rs.5,000/- per month. Moreover, even according to the Chart prepared by this Court for the purpose of Lok Adalath, for a person who has met with an accident in 2009, is to be taken as Rs.5,000/- p.m. Therefore, the learned Tribunal has erred in taking the appellant's income as merely Rs.45,000/- per year. Hence, the income needs to be re-assessed by this Court.
Secondly, while assessing the disability of the whole body, the learned Tribunal has ignored the testimony of Smt. Salama (P.W.1). In her testimony, she had clearly stated that due to the severe head injury, and the fracture suffered by the injured, he has almost lost his memory; he cannot remember and recognize his family members. He has headaches and convulsions; he is unable to walk, sit or squat. He is strictly bedridden. Therefore, he has almost turned into a vegetable. Despite the said testimony, which is also buttressed by the medical documents (Ex.P-19), where even the Doctors have certified that the memory of the injured is severely affected, the learned Tribunal has concluded that the 6 disability of the whole body is merely 50%. According to the learned counsel, the injured is bed ridden; since his mental faculties are adversely affected, he is unable to perform any professional work at all. Hence, his functional disability should have been taken as 100%, rather than merely 50%.
Thirdly, considering the fact that at the time of the accident, the injured was said to be 39 years old, but on the basis of his Transfer Certificate, the Tribunal has concluded that he was merely 31 years old, and considering the fact that his life expectancy ordinarily would be 70 years, the compensation of Rs.75,000/- for the category of 'injury, pain, and agony', is certainly on the lower side.
Fourthly, considering his pitiable condition, the injured can no longer enjoy the amenities and the joys of life. Therefore, a grant of compensation for the category of "loss of amenities" of mere Rs.40,000/- is certainly on the lower side.
Fifthly, since the injured is almost immobile, he would require an attendant and nourishing food for the remaining part of his life. 7 Yet the learned Tribunal has granted merely Rs.20,000/- for "the attendant charges, and for the nourishing food".
Sixthly, considering his medical deteriorating condition, no amount of compensation has been paid for the future expenses that the injured may require to spend upon his physical and mental treatment.
Lastly, a husband who has been reduced to almost a dead person, has deprived the wife of consortium. Therefore, relying on the case of Rajesh and Others v. Rajbir Singh and Others [(2013) 9 SCC 54] the learned counsel has pleaded that the learned Tribunal should have granted a compensation even for the 'loss of consortium'. For, when the husband is totally disabled, and mentally challenged, neither he, nor the wife can enjoy each other's company, affection, and physical relationship. Therefore, the 'loss of consortium' should have been considered as is being paid in other jurisdictions the world over.8
6. On the other hand, Mr. G. N. Raichur, the learned counsel for the Insurance Company, has raised the following submissions before this Court :-
Firstly, despite the fact that Smt. Salama (P. W. 1) claimed that her husband was earning Rs.5,000/- p.m. as a mason, she did not submit any documentary proof of the same. Therefore, the learned Tribunal was justified in taking his daily wages as Rs.125/- per day. Hence, the income assessed by the learned Tribunal is legally justified.
Secondly, despite the testimony of Smt. Salama (P.W.1), the said testimony could not be relied upon by the learned Tribunal. For, firstly it is a testimony of an interested witness; secondly, the testimony has not been corroborated by the treating Doctors. Even P.Ws.2 and 3, who happen to be the medical doctors, were not the treating doctors in the present case. Moreover, they have not stated in their examination-in-chief with regard to the condition of the injured. Therefore, in the absence of the evidence of the treating doctors, in the absence of medical evidence, in the absence 9 of the expert opinion, the learned Tribunal was justified in concluding that the disability of the whole body was maximum to the limit of 50%.
Thirdly, relying on the case of Raj Kumar v. Ajay Kumar and Another [(2011) 1 SCC 343] the learned counsel has pleaded that in case the disability of the body is taken as 50% or more, there is no need to pay any compensation for the "loss of amenities" to the injured person. Therefore, according to the learned counsel, the learned Tribunal has erred in granting Rs.40,000/- for the category of 'loss of amenities and future unhappiness'.
7. Heard the learned counsel for the parties and perused the impugned judgment.
8. This case is a classic example of the lackadaisical performance of many Tribunals dealing with motor accident claims while discharging their judicial duty. Repeatedly it has come to the notice of this Court that in large number of claim petitions, the claimants are unable to produce either the treating Doctor, or the 10 Doctor who has issued the Disability Certificate, as a witness. The claimants may be prevented from producing such witness either because of their poverty, ignorance, illiteracy, or because such witness, being doctors, are invariably too busy to appear before the Tribunals. But in these circumstances, which are beyond the control of the claimant, invariably, it is the claimant who suffers for no fault of his or her. Considering the fact that the treating Doctor, and the Doctor who has issued the Disability Certificate are material witnesses in a claim petition, it is essential that their presence be ensured by the Presiding Officers of the Tribunal by invoking the power under Section 165 of the Evidence Act.
9. In the case of Raj Kumar (supra), the Hon'ble Supreme Court has reminded the Presiding Officers of the Tribunals, dealing with claim petitions, that they should function neither as a neutral umpire, nor as a silent spectator. In fact, a pro-active role needs to be played by the Presiding Officers of the Tribunals. Since the Tribunal has ample powers under Section 165 of the Evidence Act to summon a court witness, the learned Tribunals are expected to exercise such powers in favour of the claimants. The Presiding 11 Officers cannot shy away from exercising the said power on the flimsy ground that, in case such a power were to be exercised, the learned members of the Bar get agitated. Both the learned members of the Bar, and the Presiding Officers must realize that the duty of the Bar and the Bench is not only to discover truth, but is also to do justice to the parties. If the Presiding Officers were to call any person as court witnesses, the Presiding Officers are merely adopting a means to discover the truth. By no stretch of imagination, it can be said that by calling a court witness, the Presiding Officer is revealing his partiality in favour of the claimant. Therefore, no valid objection can be taken by the learned members of the Bar when the power vested in the Presiding Officer under Section 165 of the Evidence Act is invoked in favour of the claimant.
10. Moreover, it has come to the notice of this Court that many a times, the salary slips are produced by the claimants. But, they are not relied upon by the Presiding Officers ostensibly on the ground that neither the employer, nor the person who has issued the salary slip has been called as a witness. Therefore, the salary 12 certificate cannot be relied upon in order to adjudge the salary of the injured or the deceased. However, considering the fact that often it is be difficult for the claimants to produce the said witness, the claimant cannot be left to defend himself or herself before the Tribunal. Again in such a scenario, it is for the Presiding Officer to call the concerned employer or the person who has issued the salary certificate as a court witness. For, justice must not only be done, but must appear to be done.
11. In large number of cases, this Court has noticed that despite the fact this Court had formulated a Chart of notional income of the injured/deceased, for the purpose of Lok Adalat, and has followed the chart even in court cases, but even then the chart is not being followed by the learned Tribunals. Invariably, the claimants file an appeal before this Court and plead that the notional income assessed by the learned Tribunal is not in consonance with the Chart prepared by this Court. Inevitably, to do justice to the claimants, this Court has to issue notice. Therefore, for the failure of the Tribunal to follow the Chart, this Court is inundated with large number of appeals. The 13 sky-rocketing dockets are placing unnecessary burden on this Court. Since the High Court is required to do justice to the people, it has no other option, but to devote many Benches to deal with the flow of Miscellaneous First Appeals coming from the Claim Tribunals. Hence, in order to reduce the flood of litigation, it is imperative that the learned Tribunals should follow the Chart of notional income, prepared by this Court, in order to assess the notional income of the injured/deceased in every claim petition.
12. Calling of a court witness may create certain practical difficulties, such as who is to pay for the travel allowances of the witness. In case the learned Tribunal is of the opinion that due to sheer poverty, the party cannot produce a witness, as he cannot afford the expenses of producing a witness, the learned Tribunal should direct the concerned Legal Services Authority to bear the expenses for procuring the presence of such witness. After all, it is the duty of the Legal Services Authority to assist the people in having access to justice and to a Court.
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13. Surprisingly, the Tribunals are seldom invoking the jurisdiction conferred on them under Order XVI, Rule 14 of CPC, and Section 169 (2) and (30 of the Motor Vehicles Act. According to Section 169 (2) of the Act, the Claims Tribunal has all the powers of a Civil Court. It can compel the discovery and production of documents and material objects. Moreover, Section 169 (3) of the Act empowers the Tribunal to call for any person possessing special knowledge on any matter relevant to the enquiry held for the adjudication of the claims. Order XVI, Rule 14 CPC can also be invoked by the Tribunal on its own motion for compelling the attendance of any person including a party to the suit or a case, in order to give evidence or to produce a document. Non-exercise of these powers by the learned Claims Tribunal, invariably leads to injustice to the claimant. Therefore, this Court expects the learned Presiding Officers to be vigilant, to play a pro-active role, and to invoke their powers in order to discover the truth hidden in the case.
14. In the present case, the learned counsel for the insurance company has pleaded that the testimony of the wife (P.W.1) should 15 not be believed with regard to the condition of her husband as she herself is an interested witness. Moreover, since there is no corroboration from a medical doctor with regard to the condition of the injured person, the testimony of P.W.1 cannot be relied upon on the said point.
15. Faced with this scenario, the learned Presiding Officer should have played a pro-active role. He should have summoned the treating doctor, and the doctor, who had granted the disability certificate, to appear as a court witness before the Tribunal. Moreover, in order to discover the actual condition of the injured, the appellant before this Court, the learned Tribunal should have sent a Commissioner to the house of the appellant, and should have sought an independent report of the Commissioner with regard to the condition of the injured. However, on both the counts, the learned Tribunal has failed to discharge its judicial duty.
16. Therefore, this Court has no other option but to set aside the Award dated 02.01.2012, and to remand the case back to the 16 learned Tribunal. The learned Tribunal is directed to call the treating doctors and the doctor, who has issued the disability certificate, and to record their testimony with regard to the nature of injuries suffered by the injured, the impact of the injuries upon the ability of the body to perform its normal and professional functions, the condition of the body, and the extent of its disability both to the parts of the body affected by the injury, and to the whole body. The learned Tribunal is also directed to send a Court Commissioner to the house of the appellant, and preferably to video record his condition, so that the difficulties faced by the injured can be submitted before the learned Tribunal as electronic evidence. The Tribunal shall carry out the exercise of recording the testimony, and receiving the report of the Commissioner, within a period of three months from the date of receipt of certified copy of this order. It shall decide the claim petition within two months of recording of the evidence as directed above.
17. Since certain observations and directions have been made by this Court with regard to the duty of the Presiding Officers of the Claims Tribunal, the Registrar General is directed to send a 17 copy of this judgment to all the Claims Tribunals in the State. It is hoped that the learned Presiding Officers will adhere to the observations and functions expected from them, as mentioned in the judgment.
Sd/-
JUDGE Sd/-
JUDGE hnm/Kms