Karnataka High Court
M/S National Insurance Company Limited vs K B Shivakumar Swamy S/O K M ... on 19 March, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
R
IN THE HIGH COURT OF KARNATAKA
AT BANGALORE
DATED THIS THE 19TH DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
M.F.A.NO.1337/2009 (MV)
C/W
M.F.A.CROB.41/2011
M.F.A.NO.1337/2009:
BETWEEN:
M/s.National Insurance
Company Limited
Regional Office,
No.144, Shubharam Complex,
M.G.Road,
Bangalore
Represented by its
Administrative Officer. ..Appellant
(By Sri.A.M.Venkatesh, Advocate)
AND:
1. K.B.Shivakumar Swamy
S/o K.M.Basavarajaiah
Aged about 34 years,
R/at: No.195, Shreyas Nilaya
3rd D Cross, III Stage,
2
II Block, Basaveshwaranagar,
Bangalore - 79.
2. C.Shivakumar
S/o R.Channabasappa
Aged about 43 years,
R/at: Kanchipura
Mathodu Hobli,
Hosadurga Taluk,
Chitradurga District. ..Respondents
(By Sri.A.Dharmesh, Advocate for M/s.Sharath and
Associates for R-1, Sri.Ramesh T., Advocate for R-2)
This MFA is filed under section 173(1) of M.V. Act
against the Judgment and Award dated 22.08.2008 passed in
MVC No.2405/2007 on the file of VIII Additional Judge, Court
of Small Causes, Member, MACT, Bangalore, awarding a
compensation of `2,97,000/- with interest @ 6% p.a.
excluding future medical expenses of `20,000/- from the date
of petition till deposit.
M.F.A.CROB.41/2011:
BETWEEN:
K.B.Shivakumar Swamy
S/o K.M.Basavarajaiah
Aged about 37 years,
R/at: No.195, Shreyas Nilaya
1st `D' Cross, III Stage,
II Block, Basaveshwaranagar,
Bangalore - 560 079. ..Cross Objector
3
AND:
1. M/s.National Insurance
Company Limited
Regional Office,
No.144, Shubharam Complex,
M.G.Road,
Bangalore - 560001
Represented by its
Administrative Officer.
2. C.Shivakumar
S/o R.Channabasappa
R/at: Kanchipura
Mathodu Hobli,
Hosadurga Taluk,
Chitradurga District-577533 ..Respondents
This MFA.Crob in MFA No.1337/2009 filed under order
41 Rule 22 of CPC against the judgment and award dated
22.08.2008 passed in MVC 2405/2007 on the file of the VIII
Additional Judge, Member, MACT, Court of Small Causes,
Bangalore, partly allowing the claim petition for compensation
and seeking enhancement of compensation.
MFA and MFA.Crob coming on for final hearing this
day, the Court delivered the following:
JUDGMENT
Appeal and Cross objections are by the insurer and claimant assailing the Judgment and award passed by MACT, 4 Bangalore dated 22.08.2008 in MVC 2405/2007 whereunder claim petition has been allowed in part and a compensation of `2,97,000/- has been awarded in favour of claimant.
2. Insurer filed MFA 1337/2009 and cross objection 41/2011 is by the claimant for enhancement. I have heard Sri.A.M.Venkatesh, learned counsel appearing for insurer and Sri.Dharmesh, learned counsel appearing on behalf of Sri.Sharath Associates for R-1. Though R-2 is represented by Sri.Ramesh T., there is no representation today. Perused the Judgment and award passed by Tribunal as also records secured from the Tribunal. Contention of Sri.A.M.Venkatesh, learned counsel appearing for insurer are as under:
(i) Tribunal could not have entertained the claim petition since it did not have territorial jurisdiction to entertain a claim petition and it was barred under sub-section (2) of Section 166, since claimant is a resident of Kanchipura, Chitradurga District and claim petition could not have been filed at Bangalore.5
(ii) Plea had been raised with regard to jurisdiction and Tribunal has not considered the same and as such this court in exercise of appellate power can frame an issue and adjudicate the same and answer it in favour of insurer since admittedly claimant was not a resident of Bangalore City and as such claim petition could not have been filed before MACT, Bangalore.
(iii) Claim petition is a outcome of fraud perpetrated by claimant and MLC Register produced by insurer and marked as Exhibit R-1 would indicate that claimant had not been treated at the Primary Health Centre, K.K.Pura, Hosadurga where he claims to have been administered first aid treatment.
(iv) Though claimant tendered evidence before the Tribunal on 21.01.2008 alleging that Sri.Renukamurthy had caused the accident in question and as such he sustained injuries but 6 pleaded his innocence before the jurisdictional Magistrate Court and at the same time in his evidence tendered on 08.02.2008 in the criminal case where he admitted that said Sri.Renukamurthy who was accused in C.C.350/2007 was not driving the vehicle. As such he contends claimant himself has not proved the alleged accident.
(v) With regard to quantum of compensation awarded by Tribunal he would contend that Tribunal has erroneously and on improper appreciation of material evidence has awarded very high compensation which is not commensurate with the disabilities suffered by the claimant on account of injury sustained and as such he seeks for dismissal of the claim petition or in the alternate for reduction of the compensation.
3. Per contra, Sri.Dharmesh, learned counsel for respondent No.1 would support the Judgment and award 7 passed by Tribunal and would also hasten to add that claimant is entitled for enhancement of compensation since what has been awarded by the Tribunal is on the lower side. He would contend that immediately after the accident which occurred at about 5 P.M at Kanchipura he was taken to the Primary Health Centre and after being administered first aid he was shifted to Suguna Hospital at Bangalore at 2 A.M. on the intervening night of 21/22.02.2007 and this is evidenced from the admission card produced at Exhibit P-17 and there is no reason to doubt about the occurrence of the accident. He would elaborate his submission by contending that claim petition filed before the Tribunal, Bangalore was maintainable since claimant was residing at that point of time at Bangalore in his Sister's house for taking treatment. Even otherwise there is no specific plea raised by the insurance company nor the witness examined on behalf of the insurance company RW-1 has stated anything with regard to maintainability of the claim petition. As such he seeks for dismissal of the 8 appeal filed by the insurer and for allowing the cross objections.
4. Having heard the learned advocates appearing for the parties and on perusal of the Judgment and award passed by Tribunal and records of the Tribunal, I am of the considered view that following points would arise for my consideration:
1. Whether in facts and circumstances of the case claim petition filed before the MACT, Bangalore was maintainable or it was liable to be dismissed for want of territorial jurisdiction in view of bar under sub-section (2) of Section 166 of the Motor Vehicles Act, 1988?
2. Whether the insurer has proved that the accident in question is a outcome of fraud and as such petition is liable to be rejected?9
3. Whether the compensation awarded by the Tribunal is just and reasonable or it requires to be modified or set aside?
4. What order?
RE: POINT NO.1:
5. In order to answer the said point it would be necessary to extract the relevant section which governs the issue namely section 166 and it reads as under:
"166. Application for compensation- (1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made -
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:10
Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application.
[(2) Every application under sub-section (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred, or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed:
Provided that where no claim for compensation under section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant.]"11
Sub-section (2) of Section 166 makes it explicitly clear that a claim petition at the option of claimant can be made either to the claims Tribunal having jurisdiction over the area in which the accident occurred or to the claims Tribunal within whose jurisdiction claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides. This issue came up for consideration before the Division Bench of this court in the case of Subhadra and others Vs Pankaj and anr reported in ILR 2013 Kar 102 whereunder it has held as follows:-
"8. From bare perusal of sub-section(2) of Section 166 of the Act, it is clear that the claimant is having four options, where he can file claim petitions. He can file it either before the Claims Tribunal having jurisdiction over "the area in which the accident occurred", or before the Claims Tribunal within the local limits of whose jurisdiction the "claimant resides" or "carries on business" or within the local limits of whose jurisdiction the "defendant resides".
The language employed in sub-Section (2) make the intention of the Legislature very clear. It confers the jurisdiction to the Claims Tribunal within the local 12 limits of whose jurisdiction "accident occurred", or "claimant resides" or "claimant carries on business"
or "defendant resides".
9. The Supreme Court in MANTOO SARKAR'S case (Supra) considered the provisions contained in sub- Section (2) of Section 166 of the Act, in regard to "Territorial jurisdiction" of a Tribunal. In that case, the MACT, over-ruled the objection as to its territorial jurisdiction and allowed the claim petition having regard to sub-Section (2) of Section 166 of the Act. It was observed by the Tribunal that its jurisdiction is wide so as to cover even the local limits of the Tribunal within whose jurisdiction the Insurance Company is having a branch office at Nainital. It had awarded `2,40,000/- in favour of the claimant. The High Court, however, allowed the appeal holding that the Tribunal did not have territorial jurisdiction to entertain the said claim petition.
14. It is thus clear that if there is an error of law occurring in a judgment, apparently committed by mistake or through inadvertence, such judgment should not be misunderstood as declaration of law by the Court. Similarly, if the judgment is delivered in 13 forgetfulness of some statutory provision, or a statement of law caused by inadvertence or conclusion that has been arrived at without any reasons, or rendered without analyzing the relevant provision, it cannot be treated as a binding precedent and at the most is to be considered as having been rendered per incuriam. In other words, if intricacies of relevant provisions are either not noticed by the Court or brought to the notice of Court and if the view is expressed without analyzing the said provision, such view cannot be treated as binding precedent. It `appears, in the facts of Smt.Premakka's case (Supra), the Learned Judges did not analyse sub-Section (2) of Section 166 of the Act, which clearly demonstrates that a claim petition cannot be instituted before the Tribunal, within whose local limits, the defendant-Insurance Company carries on business.
16. Insofar as this case is concerned, the claimants could not and did not produce any material whatsoever either before the Tribunal or before this Court to show that they are residents of this State or they are having business in this State. Insofar as the accident is concerned that, admittedly, occurred in 14 the State of Maharastra. The driver and the owner of the vehicle are from Maharastra. If the jurisdiction is conferred on or recognized of the claims Tribunal, within whose local limits, the Insurance Company carries on business, perhaps that will create a chaotic situation. The Insurance Companies have their offices/branch offices all over the Country. That seems to be the reason why the legislature, in sub- Section(2) of Section 166 of the Act, did not confer jurisdiction on the Claims Tribunal within whose local limits the defendant i.e., the Insurance Company "carries on business".
6. I have gone through the said judgment and same has been rendered by Division Bench after considering various judgments of the Apex Court. In the said case claimants were the legal heirs of deceased, who expired on account of serious injuries sustained in a road traffic accident that occurred on 29.12.2008 on Pandharpur-Pune Road in the State of Maharashtra. However the legal heirs filed the claim petition before the MACT, Bijapur. It was contended in the claim petition that they are residents of Bijapur and 15 therefore Tribunal has jurisdiction to entertain the petition. Respondent/insurance company specifically contended that there is lack of territorial jurisdiction and claimants being permanent resident of Maharashtra the claim petition instituted in the State of Karnataka cannot be entertained. In this background, Tribunal held that claim petition filed before MACT, Bijapur is not maintainable on the ground of jurisdiction. In the said case what was under consideration was whether claim petition would be maintainable before MACT- Bijapur (Karnataka State) when the accident had occurred in Maharashtra State. There cannot be any dispute with regard to the proposition of law laid down by Division Bench in the said case. Hon'ble Apex Court in the case of Mantoo Sarkar Vs Oriental Insurance Co., Ltd., and Anr. reported in 2009 AIR SCW 136 while considering a similar issue has held as under:
"10. The said Act is a special statute. The jurisdiction of the Tribunal having regard to the 16 terminologies used therein must be held to be wider than the civil court.
A claimant has a wide option. Residence of the claimant also determines jurisdiction of the Tribunal.
11. What would be a residence of a person would, however, depend upon the fact-situation obtaining in each case.
15. We say so because ordinarily an appellate court shall not, having regard to the provisions contained in sub-section (1) of Section 21 of the Code of Civil Procedure, entertain an appeal on the ground of lack of territorial jurisdiction on the part of the court below unless he has been prejudiced thereby. Other respondents did not raise any question of jurisdiction. Although one witness each had been examined on behalf of the truck owner and owner of the bus, neither a question of lack of territorial jurisdiction was raised nor the question of any prejudice had been argued. It is only the first respondent who raised the question of territorial jurisdiction. However, no prejudice was caused to the appellant by the claim petition being tried by the MACT at Nainital.17
17. The Tribunal is a court subordinate to the High Court. An appeal against the tribunal lies before the High Court. The High Court, while exercising its appellate power, would follow the provisions contained in the Code of Civil Procedure or akin thereto. In view of sub-section (1) of Section 21 of the Code of Civil Procedure, it was, therefore, obligatory on the part of the appellate court to pose unto itself the right question, viz., whether the first respondent has been able to show sufferance of any prejudice. If it has not suffered any prejudice or otherwise no failure of justice had occurred, the High Court should not have entertained the appeal on that ground alone.
19. A distinction, however, must be made between a jurisdiction with regard to subject matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no jurisdiction in relation to the subject matter of claim. As a matter of fact the civil court had no jurisdiction to entertain the suit. If the Tribunal had the jurisdiction to entertain a claim petition under the Motor Vehicles Act, in our 18 opinion, the Court should not have, in absence of any finding of sufferance of any prejudice on the part of the first respondent, entertained the appeal.
(Emphasis Supplied) It has been held in the said case that unless prejudice is shown to have been occasioned on account of filing claim petition before a different court or Tribunal it cannot be held that claim petition could not have been entertained by the tribunal. It has also been noticed in the said judgment that ordinarily an appellate court will not, having regard to provisions contained in sub-section (1) of Section 21 of Code of Civil Procedure, entertain an appeal on the ground of lack of territorial jurisdiction on the part of the court below unless appellant demonstrates that by entertaining the claim petition it has prejudiced its rights. The Apex Court has also held that it would be obligatory on the part of the appellate court to pose unto itself the question namely, whether the 19 respondent has been able to show sufferance of any prejudice.
7. Keeping the contours laid down in the above case it requires to be examined from the facts on hand as to whether the appellant herein who was second respondent before the tribunal has been able to demonstrate that on account of lack of territorial jurisdiction, Motor Accident Claims Tribunal at Bangalore could not have entertained the claim petition in question and by entertaining the same it has resulted in prejudice to it. The facts on hand would indicate that accident in question occurred on 21.02.2007 at about 5 P.M at Kanchipura within the limits of Srirampura Police Station, Hosadurga, Chitradurga District. Claim petition came to be filed before MACT, Bangalore by depicting the address of the claimant to be Basaveshwaranagar, Bangalore. First respondent owner of the offending vehicle has appeared and filed statement of objections and no plea with regard to territorial jurisdiction has been raised. Sri.A.M.Venkatesh, 20 learned counsel appearing for the insurer has contended that issue regarding territorial jurisdiction has been pleaded in the written statement filed by second respondent-insurer and draws the attention of the court to paragraph 3 of the statement of objections, it reads as under:
"3. This respondent humbly submits that, this respondent specifically denies all averments made in the claim petition. It is submitted that, this respondent has received the court summons along with the main petition copy addressed to The Regional Office, Bangalore. It humbly submits that, the Regional Office Bangalore is only the administrative office and it does not deal with any claim petitions. This being the fact, this Respondent ought to have made the policy issuing office as the II respondent in this petition and has not done so in order to mislead the insurance company. It is further submitted that, as per the petition copy the place of accident, the vehicle alleged to be involved in the accident, the person alleged to be injured is also from Hosadurga Taluk of Chitradurga district and policy issuing office is at Chitradurga District, has filed this petition in MACT, Bangalore only in 21 order to avoid the respondents to contest this case and to get the compensation."
He contends that last sentence in above paragraph would indicate that insurer had raised plea of territorial jurisdiction before Tribunal itself and this aspect has not been considered by tribunal.
8. On the basis of the pleadings of the parties Tribunal framed issues on 10.12.2007. Neither the insurer nor the first respondent/owner have raised their little finger on the ground that the issues are erroneously framed by the tribunal. No application is filed seeking recasting of issues nor the witness RW-1 examined on behalf of the insurer has raised any such plea in the evidence tendered before Tribunal. On perusal of paragraph 3 of the Statement of objections it would clearly indicate that there is no such plea raised by insurer with regard to territorial jurisdiction. The defence raised which is extracted herein above would clearly 22 indicate that insurer has contended that though accident occurred in Chitradurga District, claim petition has been filed before the MACT Bangalore in order to avoid respondents from contesting the case it has been filed at Bangalore. They have not in specific words stated that the jurisdiction of the Tribunal is ousted in view of sub-section (2) of section 166. It is also not pleaded as to what would be the prejudice that was being caused to insurer on account of tribunal at Bangalore adjudicating the claim. A perusal of evidence of PW-1 namely cross examination would also indicate that there is not even a suggestion made to PW-1 that claim petition has been filed before MACT, Bangalore which did not have the territorial jurisdiction. It is no doubt true consent does not confer jurisdiction. However, as noticed from sub- section (2) of section 166 it enables the claimant to file a claim petition if he is residing in the jurisdiction of the Tribunal where he preferred the claim petition. In the event of insurer questioning jurisdiction of the Tribunal to entertain the claim petition, burden would shift on the claimant to 23 prove that he is an "ordinarily resident" of the place which is shown to have jurisdiction by producing evidence namely ration card, driving licence, Passport or any other document in proof of his residence. In the absence thereof it cannot be imagined that the claimant is required to prove the same particularly when he is not called upon to do so. In the instant case even the witness who has been examined on behalf of insurer has tendered evidence before the Tribunal as RW-1 has not stated that MACT Bangalore does not have jurisdiction. He does not state that claimant is not a resident of Bangalore. Insurer does not dispute the address given by claimant in the claim petition. There is no cross examination at all on this issue. Hence, tribunal at Bangalore was justified in entertaining the claim petition. In that view of the matter point No.1 formulated herein above is required to be answered against the insurer and in favour of the claimant. RE: POINT NO.2:
9. Insurer has contended that present claim petition is 24 filed to have an unlawful gain by claimant in collusion with the owner of the offending vehicle and as such insurer is not liable to indemnify. Insurer has relied upon very heavily on MLC register marked as Exhibit R-1 and statement given by claimant before the Magistrate Court marked as Exhibit R-2 and evidence tendered by owner of the offending vehicle before the Magistrate court marked as Exhibit R-4 which would indicate the stand taken before the tribunal by claimant is diametrically opposite to the stand taken before Magistrate Court. Exhibit R-1 is the certified copy of MLC register extract of Primary Health Centre, K.K.Pura, Hosadurga. It is the contention of Sri.A.M.Venkatesh that if claimant had been treated at Primary Health Centre at Kanchipura on the date of accident i.e., 21.02.2007 an entry would have been found in the said register and MLC Register extract Exhibit R-1 would establish there is no such entry and as such there was no accident at all or injury sustained by claimant. In support of this submission he relies upon the 25 unreported judgment of the Hon'ble Apex Court in the case of NWKRTC Vs Gourabai and others in Civil appeal No.3171/2009 disposed of on 01.05.2009 whereunder their Lordships have found on facts that doctor who had been examined had admitted the deceased to the hospital and it was recorded in the said MLC register Exhibit R-1 that deceased had suffered head injury due to fall from a height of 8 to 10 feet at his own house. In this background their Lordships held Exhibit R-1 namely MLC register in the said case would indicate beyond shadow of doubt the injury suffered was not on account of vehicular accident. As such their Lordships held High Court as well as tribunal was in error in not having placing reliance on this document i.e., MLC Register Exhibit R-1 though available on record and as such order of tribunal and High Court came to be set aside. By relying on the said Judgment Sri.A.M.Venkatesh submits that an inference has to be drawn in this case that claimant was not treated at the Primary Health Centre at all. Said contention cannot be accepted since the doctor of the Primary 26 Health Centre is not examined nor the compounder who is said to have administered first aid to the claimant when brought to the Primary Health Centre is examined and even otherwise if there is no entry in the MLC register by the concerned doctor or official of the Primary Health Centre the blame cannot be made on the claimant. Insurer ought to have examined the concerned person from the hospital to prove their defence that claimant had not been treated at the Primary Health Centre. This MLC register extract Exhibit R-1 in the instant case would have corroborated plea of insurer if such an exercise of examining a person from Primary Health Centre had been undertaken by insurer and in such an event said plea of insurer would have been susceptible for being accepted. In the absence of such an exercise having been undertaken by the insurer by mere producing the MLC register extract no inference can be drawn about claimant having not obtained first aid treatment. Evidence on record namely oral testimony of the claimant corroborated by documentary evidence would indicate that immediately after 27 he met with an accident at about 5 P.M he was taken to the local hospital, administered first aid and thereafter shifted to Suguna Hospital at Bangalore. Medical records of Suguna Hospital produced would support the said contention particularly Exhibit P-17 admission record relating to the claimant where in all the details including the date and time of admission of claimant is reflected as 22.02.2007 at 2 A.M in the said admission record Exhibit P-17 itself.
10. Sri.A.M.Venkatesh, learned counsel appearing for insurer has relied upon the statement made by claimant/owner of the offending vehicle before the jurisdictional Magistrate whereunder claimant has denied the fact that accused had dashed against him and as such he contends that claim is a hollow claim. Perusal of the claim petition as well as evidence of PW-1 before tribunal would not indicate about claimant having contended about accused was driving the offending vehicle. Even otherwise the relevancy of the evidence recorded before the Magistrate Court would have 28 no evidentiary value insofar as present claim petition is concerned for the reason of said deposition having not been confronted to the claimant in his cross examination before Tribunal. Until and unless the said statement was confronted to the claimant about statement made in a different proceedings it would not have any binding effect on the claimant. Hence, said contention of Sri.A.M.Venkatesh also cannot be accepted and same would hold good for Exhibit R-3 also. As such point No.2 has to be answered by holding that claim petition is not an outcome of fraud perpetrated by the claimant as contended.
11. It is the further contention of Sri.A.M.Venkatesh in complaint Exhibit P-1 made before the jurisdictional police claimant had stated that Sri.Renukamurthy was driving the vehicle and having said so he could not have contended before the Magistrate court that said Sri.Renukamurthy was not driving the vehicle. As already noticed herein above the statement made by claimant before the jurisdictional 29 Magistrate has not been confronted to claimant to either dispute the contents of said statement or to explain the circumstances under which such statement has been made. In the absence thereof it would not have any bearing on the present claim petition though there is inconsistency in the said statement. Hence on facts contention of Sri.A.M.Venkatesh cannot be accepted.
RE: POINT NO.3:
12. Claimant had produced the wound certificate issued by Suguna Hospital which was marked as Exhibit P-5 to establish the nature of injuries sustained by him which would indicate that claimant had sustained following injuries:
(a) a deep lacerated wound right hand on the dorsum.
(b) severe tendon of extensors of middle and ring finger
(c) lacerated wound of great right toe and
(d) multiple lacerated injuries on the face with oedema and fracture of the incisors.30
Doctor who treated claimant at Suguna Hospital has been examined as PW-2. He has stated that except fracture of tooth petitioner had not sustained any other fracture. He has also stated that claimant had sustained grievous injuries such as abrasion over face, deep lacerated wound on right dorsum of the hand and extensors tendons. The photographs produced at Exhibit P-16 would corroborate this fact. PW-2 has stated that claimant cannot carry on any agricultural activity on account of said injury and claimant may find difficulty in holding things. He has opined that disability to the right upper limb is 50% and to the whole body 17%. However in the cross examination he has admitted that at the time of discharge condition of the claimant was satisfactory and injury sustained by the claimant were healable one. He has opined that motor power of his right in grip is reduced by 3/5. He has also admitted that he does not know as to what is the profession of claimant. However, surprisingly he states that the said injury or disability may come in the way of 31 supervision of agricultural operations in the lands. This is an intriguing factor. PW-1 in his examination-in-chief has stated that land to an extent of 8 acres 34 guntas belongs to the entire family and it is irrigated land and water source is through borewell. Claimant and his family members are possessing agricultural lands and carrying on agricultural operation in said land. It is not stated by claimant that he was personally cultivating the lands. In other words claimant was getting the lands tilled through coolies and he was supervising the operations. This would clearly indicate that neither his supervision capacity to supervise the agricultural operations is lost nor the land has been lost. Tribunal on appreciation of said evidence has awarded compensation of `2,97,000/- under following heads:
(i) Pain and agony 35,000=00
(ii) Medical Expenses 70,000=00
(iii) Loss of income during treatment 24,000=00
(iv) Disability 1,08,000=00
(v) Future Medical expenses 20,000=00
32
(vi) Loss of amenities and
unhappiness 40,000=00
-----------------
TOTAL ` 2,97,000=00
============
13. From evidence available on record I am of the considered view that compensation awarded by the Tribunal insofar as pain and agony, medical expenses and loss of income during treatment period are just and reasonable. It cannot be construed either to be excessive or exorbitant for being interfered with and so also the compensation awarded towards future medical expenses and as such it is hereby affirmed.
14. Insofar as compensation of `1,08,000/- awarded towards disability and loss of amenities in a sum of `40,000/- is marginally on the higher side. As already noticed herein above Doctor has tendered his evidence with regard to disability on the basis of medical records. Injuries noticed by the Doctor has admittedly healed. As to the basis 33 on which 17% disability has occurred to the whole body is not forthcoming from the evidence of the doctor. Disability as assessed by the Doctor is on the higher side. Said disability has not been assessed on ALMANCO Manual. The photographs produced at Exhibits P-16 would also indicate that wounds are healed as rightly opined by the doctor PW-2 himself. As such it cannot be construed that claimant would be completely unable to carry on his agricultural operations even assuming that the claimant himself was carrying on agricultural operations in the lands. In that view of the matter Tribunal has rightly held that claimant would not be entitled for future loss of income but while assessing or computing compensation and awarding a sum of `1,08,000/- it has proceeded to calculate as though it is awarding loss of future income by taking the income of the claimant at `6,000/- and disability at 10% and adopting multiplier of `15' i.e., 600x12x15=1,08,000/-. This exercise undertaken by the Tribunal is erroneous and as such compensation awarded towards disability is on the higher side and considering the 34 fact that claimant had sustained only fracture of tooth and there being no other fractures and injuries sustained by him having healed, claimant would be able to discharge his normal duties and there is nothing to show said disability would come in the way of claimant carrying on his normal duties. As such compensation of `50,000/- if awarded towards disability it would meet the ends of justice and accordingly award of the Tribunal requires to be modified by reducing `58,000/-. Tribunal has awarded a sum of `35,000/- towards pain and suffering though it is marginally on the higher side same is not interfered with as already held and in view of compensation towards disability having been awarded. However, compensation towards loss of amenities also requires to be reduced since Tribunal has awarded a sum of `40,000/- which is marginally on higher side and as such a sum of `15,000/- is reduced from the said amount i.e., loss of amenities and a sum of `25,000/- is awarded towards loss of amenities. Thereby total compensation which requires to be scaled down would be `73,000/- 35 (58,000+15,000). Hence, Point No.3 is answered by holding that Judgment and award passed by the Tribunal in awarding a compensation of `2,97,000/- requires to be reduced by `73,000/- and restricting the compensation to `2,24,000/-. RE: POINT NO.4:
For the reasons aforesaid following order is passed:
ORDER
1. Appeal MFA 1337/2009 is hereby allowed in part.
2. Judgment and award passed by Tribunal in MVC 2405/2007 dated 22.08.2008 is hereby modified and compensation awarded by Tribunal is reduced by `73,000/-.
3. Cross objections in MFA.Crob 41/2011 stands rejected.
4. Amount in deposit in this appeal is ordered to be transmitted to jurisdictional Tribunal along with records by the registry forthwith.36
5. Compensation as ordered herein above shall be deposited by the insurer before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of this order.
Sd/-
JUDGE SBN