Karnataka High Court
Balakrishna L vs Kum. Mamatha H R on 5 February, 2020
Equivalent citations: AIRONLINE 2020 KAR 272, 2020 (2) AKR 544
Author: N S Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
M.F.A.No.2814/2017
BETWEEN:
BALAKRISHNA L.,
AGED ABOUT 56 YEARS,
S/O LAKSHMAIAH,
No.46, 1ST MAIN, 3RD CROSS,
SHIVU LAYOUT, MARIYAPPANA PALYA,
BENGALURU UNIVERSITY,
BENGALURU-560 056. ... APPELLANT
(BY SRI. GIRISH, ADVOCATE)
AND:
KUM. MAMATHA H.R.,
D/O RAMACHANDRE GOWDA,
AGED ABOUT 23 YEARS,
RESIDING AT No.26, 2ND CROSS,
JNANA GANGANAGARA,
JNANA BHARATHI POST,
BENGALURU-560 056.
PERMANENT RESIDING AT
No.195, KENGUNTE, MALLATHALLI,
BENGALURU-560 066. ... RESPONDENT
(BY SRI. KARTHIK A. BHARGAV, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV
ACT AGAINST THE JUDGMENT AND AWARD
2
DATED:21.01.2017 PASSED IN MVC No.809/2014 ON THE
FILE OF THE XXIII ADDITIONAL SMALL CAUSE JUDGE, & XXI
ACMM, MACT, COURT OF SMALL CAUSES, BENGALURU,
AWARDING COMPENSATION OF Rs.1,31,600/- WITH
INTEREST @ 8% P.A. FROM THE DATE OF PETITION TILL
DEPOSIT.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The owner of the motorcycle in this appeal is challenging the compensation of Rs.1,31,600/- awarded for the injuries said to have been sustained by the claimant.
2. The facts necessary for the disposal of the appeal are as follows:
The claim petition was filed contending that when the claimant was crossing the Nagarabhavi Ring road, on 08.02.2014 at about 8.15 a.m., all of a sudden the rider of two wheeler bearing No.KA-41-X-1487 collided with her, as a result of which she sustained injuries. It is stated that she was immediately shifted to Aryan Multi Specialty Hospital, where she was given first aid and later shifted to Murthy Orthopedic Centre, where she was applied Plaster (POP) on 3 the right leg and was advised to undergo follow-up treatment.
According to the claim statement, the X-ray of the claimant disclose that she had sustained tenderness over medial aspect of right knee joint-evaluation and she was complaining severe pain over the right knee joint.
3. The claimant contended that due to the injuries, she was unable to concentrate on her studies and was unable to do any work and therefore was entitled to compensation.
4. In the said claim petition, only the owner of the motorcycle was arrayed as respondent, since there was no insurance. The owner entered appearance and contested the petition vigorously.
5. The respondent contended that he and his son were standing along with motorcycle bearing No.KA-41-X-1487 to receive their relatives and at that time, the claimant and her friend were standing on the footpath and they started quarrelling with each other and claimants friend pulled the claimant on to the road and as a result, the claimant lost her 4 balance and fell down from the footpath. It was stated, as a result of this fall, she sustained abrasions and tenderness over right leg and immediately the respondent and his son admitted her to Aryan Multi Specialty Hospital and after she underwent treatment, she was sent home.
6. It was stated that the claimant was a student and was living in the surrounding locality and on humanitarian ground, the respondent and his son had admitted the claimant to the hospital and had spent a sum of Rs.3,000/- from their pocket and it was stated that in order to make an illegal gain, the police complaint had been lodged on the following day. Thus, according to the respondent there was no accident at all as contended by the claimant.
7. The petitioner in order to prove her case, examined herself as PW1 and marked 9 documents. She also examined one Dr.Kishore Kumar as PW.2 and produced 3 documents under Exs.P.10 and P.12. The respondent on the other hand examined himself as RW.1, but did not produce any 5 documents. He however confronted the claimant with Ex.R.1- wound certificate.
8. The Tribunal on consideration of the documents Exs.P1- P5, which were all police records relating to the registration of criminal case and the IMV report, came to the conclusion that the accident had been caused by the rider of the offending vehicle and as a result of the accident, the claimant has suffered grievous injuries.
9. The Tribunal thereafter, proceeded to assess the compensation and awarded the following sums:
1 Loss of future earning income 25,920/- 2 pain and suffering 15,000/-
3 medical bills 75,628/-
4 conveyance, food and nourishment 15,000/-
incidental and attending charges Total 1,31,548/-
Rounded of 1,31,600/-
10. The learned counsel for the respondent in this appeal, contended that Tribunal could not have come to the conclusion that an accident had occurred. According to him 6 the evidence on record did not probabalise the occurance of an accident and the Tribunal had erred in coming to the conclusion that the respondent has caused the accident.
11. He further submitted that the medical board having assessed the loss of disability at 2% to the lower limb, the Tribunal could not have taken 2% itself as the permanent disability.
12. He also contended that the medical bills produced cannot be believed, since they were not related to the relevant period during which the accident took place. He also argued that the medical bills produced were out-patient slips in which it has been stated that certain sums had been paid. He ultimately submitted that having regard to the totality of the circumstances, the award cannot be sustained.
13. On the contrary, the learned counsel for the respondent-claimant contended that the award of the Tribunal was just and proper and based on the proper appreciation of facts. He submitted having regard to the 7 totality of circumstances, the Tribunal has in fact awarded a conservative compensation.
14. I have considered the submissions made by the learned counsel and also perused the records.
15. The respondent, initially, contended that no accident at all had occurred. The respondent by his objections sought to put forth the theory that the claimant and her friend had quarreled while standing on the footpath and as a result of the said quarrel she was pulled down into the road and as a consequence of which, she sustained severe injuries. Thus, according to the respondent, there was no accident which occurred out of the use of his motorcycle and therefore, the claim petition could not be entertained. This submission of the learned counsel cannot be accepted, in view of the overwhelming evidence produced before the Tribunal regarding the occurrence of the accident. The respondent himself admitted that he and his son took the claimant to the hospital called Aryan Multi Speciality Hospital. He also put forth the plea that he had spent a sum of `3,000/- out of his 8 own pocket. Since, respondent and his son himself had taken the claimant to Arya Multi Speciality Hospital, the medical records produced from Aryan Multi Speciality, cannot be doubted. Ex.P5 - the case summary and discharge record of Aryan Multi Speciality Hospital, categorically records that the claimant had come to the casuality with alleged history of road traffic accident which occurred on 08.02.2014 at about 8.15 a.m., and she was complaining of severe pain over the right knee joint. In view of this record Ex.P5, in my view, the argument of the learned counsel for the respondent that no accident took place cannot be accepted. The fact that the hospital to which the respondent himself took the claimant, recorded the factum of an accident having occurred on 08.02.2014, is by itself, sufficient proof that an accident had occurred.
16. The contention that the claimant did not suffer any disability and that the disability opined by Dr. Kishore Kumar at 10.83% was superseded by the opinion of the Medical Board which assessed the disability at 2%, by itself was a good enough ground to reject the claim for 9 compensation cannot, also be sustained. The Ex.P5 - the case summary and discharge record indicates that the claimant was admitted to the Hospital on 08.02.2014 and was discharged on 10.02.2014. The course adopted by the Hospital is recorded in Ex.P5 and reads as follows:-
"Patient was brought to casualty with alleged H/O RTA and she was reviewed by Orthopaedician.
Xray of right knee joint was done and orthopaedician opined to be normal and advised MRI right Knee joint. However patients attenders shifted the patient to other hospital and got a POP application. She came back again with severe pain and was managed with analgesics and antacids and supportive care. She is advised MRI right Knee joint after 2 days and review".
17. In my view, if the injury was indeed simple in nature, the hospital would not have kept the claimant as an in-patient for two days and would not have advised her to undergo a MRI of the right Knee. There is also on evidence of record to show that the claimant visited St.Martha's Hospital, complaining of pain and ultimately she approached the Rajarajeshwari Hospital and according to the claimant 10 because the said hospital indicated cost of treatment would be expensive she was forced to go to Mathru's Hospital.
18. In Mathru Hospital, the claimant was admitted with a diagnosis of chronic sepnavits of right knee with effusion and post traumatic. The medical records of Mathru Hospital indicate that she was admitted on 01.09.2014 and discharged on 03.09.2014. Ex.P.10 also indicates that an operational procedure of diagnostic arthroscopy was done on the claimant.
19. In all these medical records, it has been recorded that the complaint of the claimant was in respect of severe pain in the right knee for the past seven months and she had been treated conservatively, but the symptoms had not been reduced. It is also stated in the said hospital records that the claimant had an history of old road traffic accident and she was treated in Aryan Hospital, Marthas Hospital and Rajarajeshwari Medical College for a period of seven months. In my view, there is absolutely no reason to disbelieve the fact that the claimant suffered pain and visited more than one 11 hospital for a period of seven months because of the accident.
20. Learned counsel for the appellant contended that the entire medical evidence relating to Mathru Hospital was to be ignored since the Doctor had incorrectly assessed the disability at 10.93% and this was evidenced by the subsequent report of Medical Board.
21. According to him, since the request of the appellant for referring the claimant for assessment of disability to the Medical Board was accepted by the Tribunal and since the Medical Board gave a definitive opinion that the disability should be taken 2% of the right lower limb, the entire medical treatment given by Dr.Kishore Kumar and the assessment of disability made at Mathru Hospital requires to be ignored and assumed to be concocted.
22. I am afraid, I am unable to accept this contention. As a matter of fact, the opinion of the Medical Board dated 22.11.2016 reads as follows:
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"We, the Chairman and Members of Medical Board, Victoria Hospital, Bangalore after verification of copies of submitted documents, have assessed the disability of Mrs. H.R.Mamatha, who came with the history of pain and stiffness of Right Knee Joint on 21/11/2016. The details of the clinical examination are as follows:
1. Healed Surgical Scar right knee.
2. Right Joint line tenderness present.
3. No evidence of wasting of muscle of right thigh.
4. Active flexion (0-80 degree) Passive Flexion (0-
1000 degree).
5. Tests for Ligaments instability -Negative (No Joint instability).
6. No Limb length discrepancy.
The Radiological report (X-ray No. 408960, dt:22/11/2016 is follows:
Exposed Bones Joint Spaces are normal.
As per the history clinical examination and Radiological examination, we certify that the disability assessed for Mrs. H.R.Mamatha as on 22/11/2016 is 2% of the Right Lower Limb."13
23. The record categorically states that the claimant was found to have healed surgical scar on the right knee and it also states that she had a tenderness in her right joint line.
The Medical Board in fact opined that the disability assessed of the claimant as on 22.11.2016 was 2% of the lower limb.
24. In my view, the Medical Board opinion fortifies the fact that the claimant suffered a disability as a result of motor vehicle accident. It is to be noticed here that the opinion of the Medical Board regarding percentage of disability was rendered on 22.11.2016, whereas the accident had occurred almost three years prior i.e., on 08.02.2014. It is quite probable that an orthopedic injury would show lesser amount of disability with a passage of time. Be that as it may. The Tribunal has assessed the permanent disability at 2% and this does not call for any interference.
25. Learned counsel for the appellant further submitted that since the claimant had suffered disability only at 2%, it will have to be taken as no disability at all. In my view, this argument cannot be sustained, as a disability is a disability. It is to be noted here that the disability to an young 20 years 14 old on her right knee would have a debilitating effect on her entire life. Even a 2% disability cannot be ignored as there has been no disability. The claimant, being a 20 years old lady and her future prospects of leading a normal life to certain extent are curtailed, I am of the view that assessment of disability by the Tribunal at 2% cannot really be found fault with and it is just and proper.
26. In view of totality of circumstances, I am of the view that a sum of Rs.1,31,600/- awarded by the Tribunal as compensation cannot be found fault with.
27. The argument of learned counsel for the appellant that medical bills amounting to Rs.75,628/- was without any basis cannot be accepted as the claimant has produced a series of bills which are construed with line of treatment and the period of treatment. In my view, since the claimant has undergone orthopedic surgery and has under gone treatment at more than one hospital, assessment of the Tribunal regarding sums spent by the claimant towards medical expenditure cannot be doubted. I am, therefore, of the view, 15 that there is no merit in this appeal and the same is accordingly dismissed.
Amount in deposit shall be transmitted to the Tribunal for disbursement in terms of the award.
Sd/-
JUDGE PKS