Karnataka High Court
Manager National Insurance Co., Ltd., vs Irayya S/O Basavanneyya Aradhyamath on 26 November, 2014
Bench: Mohan M Shantanagoudar, K.N.Phaneendra
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 26th DAY OF NOVEMBER, 2014
PRESENT
THE HON'BLE MR.JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
M.F.A. NO.21919/2011 C/W
M.F.A. CR. OB. NO. 783/2011 (MV)
IN M.F.A. No. 21919/2011
BETWEEN:
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE, 1ST FLOOR,
SRI KRISHNA AGENCY BUILDING,
P.B. ROAD, HAVERI, REP. BY
RENUKA RANEBENNUR,
D/O YALLAPPA, AGE: 48 YEARS,
ADMINISTRATIVE OFFICER,
NATIONAL INSURANCE CO. LTD.,
SUJATHA COMPLEX, P.B. ROAD, HUBLI.
- APPELLANT
(BY SRI. S.V. YAJI, ADVOCATE)
AND:
1. IRAYYA S/O BASAVANNEYYA
ARADHYAMATH, AGED: 45 YEARS,
OCC.: DRIVER, R/O BOMMANAHALLI,
TQ.: HANAGAL, DIST.: HAVERI.
2. ARJUNAPPA TALLALLI,
S/O HANUMANTHAPPA, AGE: 45 YEARS,
2
OCC.: BUSINESS, R/O POST: BILAVALI
AREGOPPA, TQ: HANAGAL, DIST.: HAVERI.
- RESPONDENTS
(BY SRI B.S. SANGATI. ADVOCATE FOR R1,
NOTICE TO R2 IS SERVED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF M.V. ACT
AGAINST THE JUDGMENT AND AWARD DATED 14.01.2011 PASSED
IN M.V.C. NO. 96/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND MEMBER, ADDL. MACT, HANGAL & ETC.
IN M.F.A. CR. OB. No. 783/2011
BETWEEN:
IRAYYA BASAVANNEYYA ARADYAMATH,
AGE: 45, OCC.: NOW NIL,
R/O BOMMANAHALLI,
TQ.: HANAGAL, DIST.: HAVERI.
- CROSS OBJECTOR
(BY SRI. B.S. SANGATI, ADVOCATE)
AND:
1. ARJUNAPPA S/O HANUMANTHAPPA TALLALLI,
AGE: MAJOR, OCC.: OWNER OF MAHINDRA
TEMPO NO.KA-27/4434 AT AND POST
BILAVALI AREGOPPA, TQ: HANAGAL,
DIST.: HAVERI.
2. MANAGER,
NATIONAL INSURANCE CO. LTD.,
BRANCH OFFICE, 1ST FLOOR,
SHRI KRISHNA AGENCY BUILDING,
P.B. ROAD, HAVERI.
- RESPONDENTS
(BY SRI S.V. YAJI. ADVPCATE FOR R2,
NOTICE TO R1 IS SERVED)
THIS M.F.A. CR. OB. IS FILED UNDER ORDER XLI RULE 22 OF CPC
AGAINST THE JUDGMENT AND ORDER DATED 14.01.2011 PASSED IN
M.V.C. NO. 95/2005 ON THE FILE OF THE SENIOR CIVIL JUDGE & AMACT
AT HANGAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
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THIS M.F.A. AND M.F.A. CR. OB. HAVING BEEN RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, K.N.PHANEENDRA.J., DELIVERED THE
FOLLOWING:
JUDGMENT
1. The above appeal and the cross objection have been preferred by the aggrieved National Insurance Company Ltd., and also the claimant respectively being aggrieved by the judgment award passed in M.V.C. No. 96/2005 dated 14.1.2011 by the Senior Civil Judge & MACT at Hangal.
2. In M.F.A. No. 21919/2011 the Insurance Company has raised the grounds on which they challenged the judgment of the trial Court which are briefly stated as follows:
(1) The Tribunal has committed serious error in holding that the vehicle bearing reg. No. KA-27/4434, a Mahindra Tempo was involved in the accident and failed to appreciate that the injured voluntarily sustained injuries while driving his motorcycle and caused accident dashing against the tree and thereafter the claimant with the active collusion with the Police has concocted a story implicating the driver of the said Mahindra Tempo vehicle. Therefore, the accident occurred due to the negligence of the claimant himself and is not entitled for any compensation. (2) The Tribunal has not properly appreciated the materials on record in order to award compensation on several heads. The income of the claimant, as taken by the trial Court is exorbitant. The trial Court has committed serious error in awarding compensation under different heads exorbitantly. Therefore, on the quantum of compensation 4 (3) The Insurance Company has preferred this appeal contending that in all respects the judgment and award passed by the trial Court is illegal, capricious and the same is liable to be set aside by this Court consequently dismissing the claim petition.
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3. In M.F.A. Cr. Ob. No. 783/2011, the cross-objector (the claimant) has challenged the above said order on several grounds which are briefly enumerated below:
(1) The Tribunal has not taken the proper annual income of the deceased. The tribunal has taken `7,125/-
p.m. as monthly income instead of `10,000/-. The Tribunal ought to have awarded `1,00,000/- towards medical expenses instead of `94,092/-. The Tribunal has also not properly considered the amount towards pain and sufferings and the compensation towards laid up period, conveyance charges, towards loss of amenities and etc. (2) It is also contended that the cross objector was getting a minimum of `100/- per day as incentive excluding the regular salary. That has also not been taken into consideration by the Tribunal. Therefore, the award passed by the Tribunal is very meager and on the lower side. Therefore, it is requested to award compensation to `29,25,000/- instead of `11,53,392/- as awarded by the Tribunal.
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4. On the basis of the above said rival pleadings we have heard the arguments of respective learned counsels. 5
5. On going through the entire materials on record, the points that would arise for our consideration are:-
1. Whether the trial Court has committed any error in holding that the accident was due to the rash and negligent driving of the vehicle by its driver of Mahindra Tempo bearing reg. No. KA-27/4434 on 24.5.05 at about 10.00 p.m.?
2. Whether the trial Court has committed any serious error in evaluating the compensation on several heads and awarding compensation of `11,53,392/- in favour of the claimant?
3. What order?
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6. Our answer to the above said points are in the negative for the following reasons.
REASONS
7. Before adverting to the above said important two points taken up for consideration, we feel it just and necessary to have brief factual aspects of the case to understand as to how the trial Court has proceeded with the case and what are the materials considered by the trial Court and reasons given and the decision arrived at. For the purpose of convenience, we would like to refer the 6 ranks of the parties as per their ranking before the trial Court.
8. The case of the claimant Sri Irayya Basavannayya Aradyamath is that on 24.5.05 at about 10.00 p.m. on Bommanahalli Baichavalli Road near Narayanappa Kadashettihalli garden, the claimant was moving on his motorcycle bearing its reg. No. KA-27/E-2119 towards Bommanhalli side, at that time the driver of Mahindra Tempo bearing reg. No. KA27-4434 drew the said vehicle in a rash and negligent manner from the opposite side and dashed against the motorcycle. Due to the impact of the accident, the claimant has sustained severe injuries and thereafter he was shifted to the Government Hospital, Hanagal and then referred to K.I.M.S. Hospital, Hubli, for further treatment. He took treatment in the hospital as an indoor patient. As he could not get better treatment in K.I.M.S, Hubli, later he was admitted to Kasturba Hospital, Manipal. He took treatment for about one month and 7 thereafter he went to the said Hospital for follow up action. He also took further treatment at Fracture and Orthopedic Hospital by name Kshema at Miraj, and lot of money towards his medical treatment. It is the further case of the claimant that he was working as a driver in NWKRTC at Haveri Division and he was earning `10,000/- per month. After the accident he was removed from the service. He suffered great pain and lot of mental agony claiming that the said accident was solely due to the rash and negligent driving of the driver of the Mahindra jeep he claimed compensation.
9. The first respondent Arjunappa, owner of the said Mahindra tempo and second respondent is the National Insurance Company who insured the said vehicle of the first respondent in pursuance of the service of summons on them they appeared before the Court and contested the proceedings. The owner of the tempo has contested the proceedings by denying all the allegations made and first 8 respondent has taken up the contention that his vehicle was not at all involved in the accident. On the other hand, the claimant himself drew his vehicle in a rash and negligent manner and dashed against the vehicle belonging to the respondent no.1 and sustained injuries. It is contended that the claimant is not entitled for any maintenance and not only denied the liability, the first respondent also denied the income and the amount spent by the claimant towards medical treatment etc.
10. The second respondent Insurance Company in fact at the initial stage filed its written statement denying the allegations made in the claim petition. The second respondent also contended that the petition is not maintainable for non joinder of necessary party as the petitioner has also contributed negligence towards the accident. Therefore, the Insurance Company of the motorcycle driven by the claimant also ought to have been made as a party. It is also contended by the second 9 respondent that the accident was mainly due to the rash and negligent driving of the motorcycle by the petitioner- claimant who himself dashed against the Mahindra Tempo which was moving very slowly. Apart from that, the Insurance Company also denied the other aspects as claimed by the claimant with regard to his income, sustaining of the injuries, spending lot of money towards his medical treatment, etc. Subsequently, the second respondent has also filed additional objections to the main petition stating that on the particular day of the accident the tempo belonging to the first respondent being driven by its owner has reached the place of accident and in fact by that time the claimant had already met with an accident and was lying in a ditch. On humanitarian consideration the driver of the said tempo admitted the claimant to the hospital at Hanagal. Taking undue advantage of the situation and ignoring the humane attitude of the driver of the tempo, in order to make himself unlawful gain, the claimant has lodged a false complaint against the driver of 10 the tempo and the Police have concocted the entire charge sheet papers against the driver of the tempo in order to favour the claimant to file the claim petition.
11. On the basis of the above said rival contention of the parties, the trial Court has framed several issues as many as 7 issues casting burden on the claimant to prove that the accident was happened mainly due to the rash and negligent driving by the Mahindra Tempo driver and also casting responsibility on the respondents to establish that the actionable negligence was on the part of the claimant himself and also framed an issue what is the just and reasonable compensation the claimant is entitled for. Answering the above said issues with regard to the actionable negligence in favour of the claimant, the trial Court has held that the driver of the Mahindra tempo was solely responsible for the negligent act in causing the accident. After considering in detail the nature of injuries sustained by the claimant and the treatment taken by him 11 at different hospitals and also his nature of work, income, etc. the trial Court has awarded the compensation as narrated supra already.
12. Now coming to the first point for consideration framed by us with regard to the actionable negligence on the part of the driver of the tempo, whether the trial Court has committed any serious error in holding that the driver of the tempo was negligent in causing the accident. The trial Court has clubbed issue nos.1 to 3 so far as this aspect is concerned and in fact discussed at length in detail, the pleadings of the parties, the evidence led by the parties and also the documents placed for consideration of the Court, has come to the conclusion that the actionable negligence was on the part of the tempo driver.
13. We have once again perused the evidence and documents placed for consideration of the trial Court. On re-evaluation of the materials on record we have also come to the conclusion that the actionable negligence is on the 12 part of the tempo driver. P.W.1 is the claimant reiterated averments made in the petition fastening responsibility on the driver of the tempo. It is to be noted herein that the owner of the tempo has filed his written statement. At paragraph no.5 of his statement he has stated that the petitioner who was driving his two wheeler in fact came in a high speed, in a rash and negligent manner and he caused the accident and sustained injury. That clearly goes to show that somebody must had given information to the owner that the claimant himself drew his motorcycle in a rash and negligent manner with high speed. Perhaps the driver of the tempo must have given such information to the owner at the earliest point of time. If at all the claimant was riding his motorcycle in a rash and negligent manner and caused the accident. It is not vividly stated as to how exactly the accident was caused. It goes without saying that there must be involvement of two vehicles in the accident. Inevitably the circumstances show that one vehicle belonging to the claimant and another vehicle 13 belonging to the first respondent being driven by its driver were involved in the accident. Therefore, it is incumbent upon the owner and its driver to establish as to how exactly that incident happened, from which direction the motorcycle was coming, in which direction the tempo was moving and how actually the incident happened, at what distance the driver of the tempo has seen the motorcycle coming against his vehicle, etc. these facts play a very important and dominant role in deciding the actionable negligence on the part of the driver of either of the vehicles.
14. It is seen from the written statement filed by the respondent no.2 at paragraph no. 3, it is specifically stated that the petition is bad for non joinder of necessary party. This also goes to show that the Insurance Company has specific instructions either from the owner of the vehicle or from the driver of the vehicle to the effect that two vehicles were involved in the accident. Therefore, it is specifically stated that the non joinder of the insurance company of the 14 motorcycle is bad and therefore on that ground the claim petition deserves to be dismissed. This plea taken by the Insurance Company also fortifies the stand taken by the respondent no.1 with reference to involvement of two vehicles in the accident. Apart from that, at paragraph no.7 of the objections of respondent no.2, it has taken further plea that the accident was taken place due to the negligent driving of the motorcycle by the claimant who himself dashed against the slowly going Mahindra Tempo and therefore the respondent is not liable to pay any compensation. Thus without going into the evidence of the parties, pleadings themselves clearly establish that there is clear and categorical admission on the part of respondent nos.1 and 2 that they never denied the accident being taken place but they want to put actionable negligence on the rider of the motorcycle that is the claimant.
15. An astonishing factor in the pleadings of the second respondent cropped up subsequently. The respondent no.2 15 has filed additional objections to the main petition. At paragraph nos.2 and 3 of the objections, the respondent no.2 has taken a total "U" turn from its earlier pleadings, by contending that, on that particular day of the accident the tempo belonging to the respondent was not at all met with any accident and the police have concocted and fabricated documents in favour of the claimant. A different story has been developed in the case stating that on that particular day the driver of the tempo who was also passing through the said road he saw the petitioner already fallen into a road side ditch after met with the accident for himself and on humanitarian ground the driver of the tempo took the injured to the hospital. Taking undue advantage of the humanity of the driver, the Police have registered a false case against the tempo driver just to favour claimant to file claim petition. The above said pleading of the second respondent, in our opinion, is totally untenable. How they got the information in such a manner subsequently, why they had filed written statement at the 16 earliest point of time fastening actionable negligence on the claimant as if they saw the accident and they received information from any eyewitness to the effect that the motorcycle itself dashed against the tempo or a tree and due to which the claimant has sustained injuries. In our opinion, neither the Insurance Company nor the owner can blow hot and cold at a time. Considering this particular pleading of the parties the trial Court has also declined to accept the story of respondent no.2 taken up in the additional objections. We also fortify the said observations made by the trial Court. It is also an important factor to be taken note of that if at all the tempo driver has not at all caused the accident when he admitted the said claimant to the hospital, he would have definitely given information to the hospital authorities with regard to the causing of the accident by the claimant himself and by the time the tempo driver reached to that spot, the claimant had already sustained injuries. Further added to that, as a dutiful driver of the tempo he would have informed the Police 17 narrating the above said factual aspect in order to absolve himself from the liability. This also creates a serious doubt in the conduct of the tempo driver in not exercising his duties diligently by informing the truth either before the Hospital Authorities or before the Police authorities. Why he kept quiet for such a long time till the Police submitted the charge sheet against him. Further added to that even after filing of the charge sheet against the tempo driver, neither the owner of the tempo nor the driver of the tempo have made any efforts to file a complainant against the claimant either before the police or before the Court by pleading the truth in the case explaining the details with regard to the accident. The inaction on the part of the respondent no.1 and driver of the vehicle, in our opinion is sufficient to draw an adverse inference holding that the tempo driver must have committed the accident due to his rash and negligent driving of the vehicle. 18
16. Of course the parties can take inconsistent pleadings and inconsistent objections but those objections should not destroy the interse pleadings pleaded by the parties. In this case the pleadings of the Insurance Company totally destroys the earlier pleadings taken up by it and also tried to destroy the pleadings of the owner. The pleadings have to be read as a whole, not bifurcating the same into pieces, then that has to visualise which portion of the pleading is supported by other materials on record and proven facts before the Court has to be taken care of by the Court.
17. In this back ground if it is seen, the Police have submitted the charge sheet against the driver of the said tempo, the claimant in support of the charge sheet and also pleadings, has deposed before the Court implicating the driver of the tempo as the person who has committed negligent act in causing the accident.
18. R.W.2, the driver of the tempo was also examined. He has deposed as per the explanation given by the Insurance 19 Company and not as per the pleadings taken up by the owner of the vehicle. He want to disown the accident and also absolve himself from the liability. On careful analysis of his evidence it is clear that he has not made any attempt to inform the hospital authorities or the Police with regard to the way in which the accident occurred and what is the true factual aspect. The driver of the tempo has also stated in his examination in chief that he, on humanitarian grounds shifted the claimant and admitted him to the hospital. The evidence of respondent nos.1 and 2 collectively shows that R.W.2 has unequivocally admitted that on that particular day he was driving the said Mahindra Tempo vehicle and he was the driver at the time of accident.
19. Another witness R.W.5 one Guddappa Martandappa Salegeri who investigated the matter privately on behalf of respondent no.2 has stated that the claimant himself caused the accident and fallen near the roadside ditch. He 20 was in a drunken state and the said accident was not at all due to the actionable negligence on the part of the tempo driver. Though Ex.R.10-the report is marked before the Court but the investigation has been done parallely on par with the Police but the Police who are well versed and trained in the investigation, they have thoroughly investigated and recorded the statement of the witnesses and ultimately lodged the charge sheet against the accused. The R.W.5 has investigated the matter on the basis of the letter issued by the Insurance Company on 18.7.2008, nearly after two months from the date of the accident. Interesting point here to be noted is that even after such an investigation neither respondent no.2 nor the driver of the vehicle or the owner of the vehicle have made any efforts to lodge a complaint against the claimant either before the Police or before the Court by filing a private complaint. Why they have not taken such step is not explained anywhere, and it remained as a mystery.
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20. P.W.6 Dr.Parappa Shivasangappa Golappanavar who is also examined as R.W.7 is the witness not only to the claimant but also to the respondent. He was the person who was discharging his duty at Taluka Hospital, Hanagal. He deposed that on 24.5.05 at about 12.00 a.m. in the night, has given treatment to the claimant-Eraiah who came there due to road traffic accident and his condition was very serious. Therefore, this witness has referred him to the KIMS Hospital, Hubli. Though this witness was cross examined meticulously at length by the counsel for the respondent but nothing could be elicited from the mouth of this witness as to why the driver of the tempo who got the claimant admitted has not given any history as such except stating that the claimant has met with an accident in a road traffic accident, as to how the accident happened, whether the claimant himself was responsible for the accident.
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21. R.W.4-Dr. M.V. Giddanavar, Senior Specialist in KIMS, Hubli, has also stated that as per the letter Ex.C.2 the Medical Officer, Taluka Hospital, has referred the petitioner to KIMS Hospital. Looking to the above said evidence available on record it shows that nowhere in this document the driver of the tempo has disclosed as to how the accident happened and in what manner the accident took place, etc. As a dutiful driver of the tempo it is his bounden duty to inform the Doctor or the Police at the earliest point of time as to how the accident happened in order to exonerate himself. This creates a serious doubt in the conduct of the tempo driver. On the other hand, the claimant was very serious, the Police went to the Hospital and thereafter registered a case against the tempo driver. That clearly goes to show that the humanitarian act as alleged by the tempo driver has not been taken advantage by the claimant or the Police, but after considering the surrounding circumstances have registered a case against the tempo driver. Therefore, on considering the above said 23 facts and circumstances and pleadings of the parties it clearly goes to show that the claimant has established in unequivocal terms that the tempo driver was responsible for the commission of the such negligent action ensured in accident causing injuries to the claimant.
22. The trial Court has in fact in detail discussing the evidence of the parties, documentary evidence, charge sheet papers, Doctors evidence, claimant's evidence and also the respondents' evidence, has meticulously by giving details of the accident and also the conduct of the parties, has in our opinion without any doubt came to the conclusion that the tempo driver is responsible for the accident and therefore it answered issue nos.1 to 3 in favour of the claimant holding that the respondent nos.1 and 2 have failed to establish that the accident was mainly due to the rash and negligent driving of the motorcycle by the claimant. Therefore, we do not want to take any deviation from the reasons given by the trial Court.
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23. It is a fundamental principle of civil jurisprudence that whenever the trial Court which is the basic court which had an occasion to deal with the evidence of the parties, observe demeanor of the witnesses and consider the pleadings and evidence of the parties, if it comes to a definite conclusion on the basis of material facts on record, even the appellate Court on the basis of the same records can take a different view, but the appellate Court should not take a different view if the view expressed by the trial Court is also a possible view on the basis of the materials on record. Therefore, on the basis of this also we are reluctant to interfere with such reasoned judgment rendered by the trial Court.
24. POINT NO. 2: Now coming to the second point taken up by us for consideration with regard to the quantum of compensation awarded by the trial Court. The trial Court has awarded the compensation under the following heads. 25
1. Loss of future earning capacity ` 8,68,000.00
2. Special diet, conveyance and ` 20,000.00 attendant charges
3. Pain and suffering ` 75,000.00
4. Loss of amenities ` 50,000.00
5. Future medical expenses ` 16,000.00
6. Loss of income during the laid ` 20,300.00 up period
7. Towards medical expenditure ` 94,092.00
8. Towards discomfort, mental ` 10,000.00 stress in life Total ` 11,53,392.00
25. Now the Court has to see whether on the basis of each and every head the Court has given any proper reasons to come to such a conclusion. There is no dispute with regard to the liability of the respondent nos.1 and 2. Respondent no.1 being the owner of the tempo and the said tempo was being driven by its driver respondent no.1 has a valid licence and the vehicle was fully covered with the Insurance. The respondent no.2 has not taken up any contention with regard to violation of any terms and conditions of the insurance policy. The records reveal that the injured has suffered severe injuries and also he has taken treatment at different hospitals. The evidence of the claimant disclose that after the accident he took first aid at 26 Government Hospital, Hangal. Thereafter, he took treatment at K.I.M.S. Hospital, Hubli and then he was again shifted to Kasturba Hospital, Manipal and then at Fracture and Orthopedic Hospital at Miraj and finally he took treatment at Kshema Orthopaedic Hospital at Hubli in respect of the grievious injuries sustained. Oy the chronology of treatment taken by him, it clearly discloses that he has taken treatment at different hospitals and he must have suffered severe pain due to the injuries while taking treatment. The evidence of the Doctor at Hangal as already referred to P.W.6 who is also examined as R.W.7 narrated that the injured has suffered severe injuries. Therefore, he referred him to KIMS Hospital, Hubli. This also fortifies the evidence of the claimant.
26. R.W.4 Dr.Giddanavar, a Senior Specialist in KIMS Hospital, Hubli also spoke about the treatment given to the claimant and he has also produced Ex.R.7, the MLC register and Ex.P.24 with regard to the admission of the 27 claimant to the hospital. This witness has produced summary sheet which also disclose that claimant being referred from the Taluka Hospital, Hanagal, he found that the claimant has got pain and deformity of right leg and inability for bearing weight on the right leg. There was a close reduction and calanean traction was done on 25.05.2005 and was discharged on 31.05.2005. It is also categorically stated by him that the x-ray report show fracture of right clavicle, compound fracture of both bones of right leg. P.W.2 another Doctor Benjamin Joseph, working as Orthopedics Surgeon at Kasturba Hospital, he also stated that on 31.5.05 the claimant was admitted to the hospital and he undergone surgery on 6.6.05 and he conducted surgery of open reduction and internal fixation of the fracture and the patient was discharged on 21.6.05. Further, on readmission on 2.8.05, functional castbrace was applied and again discharged on 15.8.05 with advise not to put weight on the limb. Again the claimant was admitted to the hospital on 27.9.05 for the third time. The 28 said cast was removed and the claimant has undergone physiotherapy to knee and ankle joints and discharged on 8.10.05. This witness has produced the case sheet along with x-ray report marked as Ex.P.24 to 30. According to this Doctor the claimant while in the hospital suffered severe pain.
27. P.W.3 is the another Doctor, Dr.Miland Govind Kulkarni, he deposed before the Court that the claimant was admitted to their hospital, i.e., Fracture and Orthopaedic Hospital, Miraj on 5.12.05 and taken treatment. He categorically stated that the claimant had fracture and operated proximal tibia right side with restricted movements of the right knee. On 19.1.06 he was further admitted and further operated on 24.1.06 and discharged on 11.2.06. It is further evidence that on 18.5.06 he was again admitted and operated and discharged on 19.5.06. He was again operated on 1.7.06 and discharged on 6.7.06. In respect of this treatment 29 given to the claimant the hospital document was marked at Ex.P.16. It is further stated in the cross-examination that on 18.5.06 he removed some fixtures and he stated that the fracture was united. He further affirmed that the movements were possible at the knee joint but he cannot say because of the delay in treatment which lead to any other problems.
28. One More Doctor Dr. Harish Kanakapur who is an Orthopaedic Surgen of Kshema Hospital, Hubli in which the claimant has taken treatment and also deposed that on 10.10.06 with the history of two previous surgeries at Manipal Hospital and Miraj the claimant has admitted to the hospital and he was discharged on 23.10.2006 with A.K.POP cast and he was advised regular follow up. After going through x-rays and also the documents pertaining to the follow up treatment given to the claimant this witness has stated that the claimant require approximate amount of `15,000/- for removal of plate and screw which were 30 fixed to the knee joint. The Doctor has also stated that the claimant has suffered physical disability. He also stated that (1) the right knee is fuxed after surgery, hence he is unable to bend right knee permanently; (2) The claimant has shortening of right leg to an extent of 2 ½" in the right lower limb; (3) He has ostee arthritis at L.S. spine along with limping gait; and (4) His left knee and hip are developing O.A.changes; and (5) right tibia show plate and screw with ostee porosis under the plate.
29. The documents are at Ex.P.32 to 34 along with x- rays. On going through the same the Doctor has opined that claimant has permanent disability of 50%. Considering the documents at Ex.P.4, 6 and 7 to 34 and length of period of treatment undergone by the claimant and also his income the trial Court has come to the conclusion that he is entitled for loss of earning capacity to the extent of `8,68,000/-.
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30. On perusal of the evidence of the claimant and also evidence of PW5-Chandrappa Basappa Byatnal working as Assistant at KSRTC, Haveri wherein it is stated that after the accident the claimant was referred to Medical Board, Hubli and thereafter found that he is incapable of discharging his duties. Therefore, the claimant was removed from service as per Ex.P.36, a medical certificate issued by the Medical Officer. Ex.P.35 is the removal order which unequivocally clarifies that due to the permanent disability sustained by the claimant he was removed from service.
31. In order to fix the claimant's annual income the trial Court has considered his salary certificate marked at Ex.P.19, which shows that the gross salary drawn by the claimant was `7,128/-. Considering the fact what would have been the increase in his salary throughout his life though it is the claim of the claimant that `10,000/- ought to have been taken as the salary, the trial Court by striking 32 balance that he would have drawn salary between `7,128/- to `14,000/- and odd throughout his life, an amount of `10,000/- was taken as income per month basing the salary slip and the evidence of the witness pW5. Though it is contended that the claimant was also taking an amount of `1,580/- as additional income as and when he has done overtime work. Normally the Courts should not take into consideration the overtime which all depending upon the facts and circumstances of a case. Nothing has been placed before the Court that every month he used to do overtime work and along with the salary he was also drawing such `1,580/-. There is no material to show that he was drawing overtime amount and `100/- as incentive, etc. All those facts are taken consideration, if that is so it cannot be concluded that those are the amounts of income further help in order to evaluate the annual income. Therefore, striking the balance the trial Court has rightly evaluated and the monthly income as an average was taken at `10,692/- and come to the conclusion that `1,24,000/- 33 as yearly income of the petitioner. We do not find any strong reasons to come to any other conclusion as that of the trial Court because the trial Court has meticulously considered, every aspect of the salary of the claimant and other emoluments available to him and also what are the deductions that are allowed under law and the salary of the claimant. Therefore considering 50% of the disability applying multiplier as 14 the trial Court has properly and rightly come to the conclusion that the loss of future earning to be fixed at `8,68,000/-.
32. So far as the other considerations are considered as we have looked into the records right from the date of the accident the claimant is running pillor to post from one hospital to another hospital for treatment and spent lot of money. It cannot be said that he has not suffered any pain and suffering. It should be borne in mind that on each and every occasion he was operated at different hospitals, the pain and sufferings are inevitably sustained by him. 34 Therefore, awarding of amount of `75,000/- towards pain and suffering is also not exorbitant. As it is seen that in several hospitals he has undergone treatment. One should attend him in order to take care of that man. Therefore, an amount of `20,000/- towards attendant charges is also not exorbitant. Towards loss of amenities and future medical expenses has been very reasonably awarded at `50,000/- and `16,000/- respectively as it is categorical that he was earning `10,000/- per month only two months laid up period has been given by awarding `20,300/- and in our opinion the loss of future earning capacity has been calculated and amount of `20,300/- is also not meager, or exorbitant amount. Towards medical expenses it is argued by the claimant that `1,00,000/- ought to have been awarded. Considering the availability of the medical bills and other exceptions the trial Court has awarded `94,092/- also in our opinion is proper and appropriate. Towards discomfort, mental stress in life the Court has awarded `10,000/-.
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33. Looking to the above said facts and circumstances of the case, the trial Court, in our opinion has gone through the materials on record meticulously and considering that the awarding of the compensation should not be a boon to the claimant nor a burden to the respondent. Striking balance between the two, the trial Court has awarded `11,53,392/- which, in our opinion is just and proper compensation awarded by the trial Court. Therefore, it requires no modification and the claimant is not entitled for any enhancement at the hands of this Court. Moreover, it should be borne in mind mere sustaining of the fracture by the claimant and removal from the job by the KSRTC, only shows that he is disabled from driving the vehicle but it does not show that he cannot do any other work at all. Therefore, taking into consideration that aspect of the matter that he can do some other work like petty shop business etc. and earn money. It is not the evidence of the Doctors that he cannot do any other work at all. Therefore, awarding of the compensation throughout his life 36 considering his future salary ought to have been received by him till the date of his retirement the trial Court has properly awarded the compensation. Therefore, we are of the opinion that in all respects the judgment is proper and correct, it requires no interference. Therefore the appeal and the cross objection both deserve to be dismissed and are accordingly dismissed.
SD/-
JUDGE SD/-
JUDGE bvv