Jayagaran © Jayakiran, Sb Jayapal v. Amaresh Sb Shivaiyya

Amaresh Sb Shivaiyya, 0cc: Employee in H.G.M., Owner of the Motor cycle Bearing No. KA-36 L- 1108, R/o Hutti Camp,

- Hutti, Tq: Lingasugur. Dist: Raichur. The Divisional Manager, Iffco-Toki, General Insurance Co.Ltd., No.8, Cunningham Road, 3rd Floor, 3rd Block, KSCMF, Bangalore-52. Siddaramaiah, Sb Shivaiah, Age: Major, 0cc: Employee in II G.M. Co.Ltd., R/o Hutti, Tq: Lingasugur, Dist: Raichur. RESPONDENTS (By Ri to 3 are served) This Miscellaneous First Appeal is filed under Section 173(1) of Motor Vehicles Act against Judgment and Award dated 15.03.2007 passed in MVC No.664/2006 on the file of M.A.C.T and Fast Track Court-Ill Raichur, partly allowing the claim petition and seeking enhancement of compensation. This appeals coming on for orders this day. the court delivered the following: JUDGMENT This is claimant’s appeal for enhancement of compensation satisfied with -3- compensation awarded under Judgment and Award passed by the tribunal in M.V.C.No. 664/2007 dated 15.03.2007.

Though respondents No. 1 to 3 are served they are un-represented.

I have perused the postal acknowledgment received by the registry. Notice issued by this court is duly served and Insurance Company has received the Court notice as seen from the postal acknowledgement and as such this court has held by order dated 03.12.2010 that notice is duly served. There is no representation on behalf of respondents. In view of the same service of notice on all the respondents is held sufficient.

3. HavIng heard the learned counsel for the appellant and on perusal of the Judgment and Award -4- passed by the tribunal the following points arise for my consideration. i) Whether the compensation awarded by the tribunal is just and reasonable or it requires to be enhanced, modified or affirmed? ii) What order?

Brief background of the case: A claim petition under Section 166 of the M.V. Act 1988 came to be filed by the appellant herein seeking compensation of 2,50,576/- contending in a road traffic accident that occurred on 29.01.2004 at about 6.30 a.m. he was proceeding on Bicycle to attend duty at Hatti Gold Mines and when he came near Government College at Hatti 1st respondent riding his Motorcycle bearing registration No. KA-36/L- 1108 came in high speed and in a rash and negligent manner and dashed against the claimant resulting in claimant sustaining injuries. On account of the same claim petition was filed. On service of notice respondents 1 4,- -5- and 3 filed joint written statement and respondent No.2 Insurance Company filed separate written statement. All the respondents denied the fact that rider was riding the motorcycle in a rash and negligent manner. Respondent 1 and 3 stated that claimant himself was coming in high speed and having lost control of the bicycle he fell down. On the basis of the pleadings of the parties tribunal framed following issues consideration. i) Whether the alleged accident was due to rash and negligent riding of motorcycle KA 36/L-1 108 by 1st respondent? ii) Whether 1st respondent had driving licence at that time? iii) Whether claimant suffered injuries in the said accident? iv) Whether claimant entitled compensation? If so, how much and from whom? v) What order or award?

Claimant in support of his claim got himself examined as PW. 1 and also examined the Doctor who issued the disability certificate as PW.2 and Medical Officer of OPEC Hospital as PW.3 to speak about the authenticity of the medical records maintained at the hospital namely with regard to Medical bills which was collectively marked as Ex.P4 and got other documents marked as Ex.P1 to P17. On behalf of the respondents no evidence was tendered. On appreciation of evidence and on considering the documents produced, tribunal allowed the claim petition in part and awarded a total compensation of 1,03,000/- under the following heads. Pain and Agony Loss and Income during laid up period Physical discomfort Medical expenses 25,000/- 10,000/- ‘ 20,000/- 48,000/- Total 1,03,000/- -7-

It the contention of learned counsel appearing for the claimant tribunal erred in rejecting the claim of the appellant for awarding compensation towards the Medical though claimant had produced bills for 7 1,000/- and the witness PW.3 who is a (Official of the hospital) namely Medical officer of OPEC hospital has spoken about the correction of the bills and tribunal erroneously rejected the same. Claimant was an inpatient at OPEC hospital from 2 1.09.2004 to 20.10.2004 and discharge summary Ex.P10 evidences this fact. While being in-patient at the said hospital claimant has undergone two surgeries. The Medical bills are produced and marked collectively at Ex. P4 and it relates period of his hospitalization. To prove the authenticity of the bills the Medical Officer of the Hospital by name Dr. Pakirappa has been examined as PW.3. In unequivocal terms he has stated that medical bills produced by the claimants are genuine and they are issued by the Pharmacy of the -8- hospital. However, some of the bills which have been produced does not contain the name of the Doctor and on this ground tribunal has rejected the claim. On perusal of these bills namely which does not contain the Doctor’s name and are compared with the bills which are generated by computer and which is admitted and accepted by the tribunal it would go to show that even in the said bill namely computer generated bill, it does not contain the name of the Doctor. It is also seen in those bills which do not contain the name of the Doctor it contains the Pharmacy licence number, Sales tax number, Telephone number of the pharmacy which is the same as found in the computer generated bills. The said Pharmacy is a in-house pharmacy located at Appollo Hospital i.e., unit of OPEC Hospital. Hence tribunal was not justified in rejecting the claim of the appellant with regard to these medical bills. Though claimant has contended that he has spent more amount than the bills produced, I am of the considered view that . S -9- claimant would be entitled only to the extent of bifis produced and marked coflectively as Ex.P4 and sum total of these bills being t 78,000/- claIm for Z 71,000/- desenres to be allowed. Thus, claimant Is entitled to additional compensation of ? 23,000/- (71,000 - 48,000) towards medical expenses.

TrIbunal has awarded a sum of t 20;000/- towards physical discomforts and no amount Is awarded towards the disability sustained by the claimant. Even If It Is to be construed that the compensation awarded the heading physical discomforts Is to be construed as compensation awarded towards physical disability the same Is on the lower side for the reasons mentioned hereinafter.

In the accident In question claimant has suffered Injuries as reflected In the wound certificate which Is at Ex22 they are as under. - 10-

1. Supra Orbital rim depressed fracture. 2. Abnormal movement of maxill. 3. Depressed right side deviated nose. 4. Palatal split. Disability certificate is at Ex.P16. Doctor who has issued the said disability certificate is one Dr.Amar Verma who is oral and Maxillofacial Surgeon. Appellant has sustained multiple fracture of infraorbital bone, Zygomatic Arch and Body fracture which relates to face and claimant has undergone two surgeries at OPEC hospital. The Doctor at the time of assessment of disability has examined the claimant clinically as well as radiologically and has opined that claimant has suffered 25 to 30% disability to the whole body. Though claimant has sought for compensation under heading Loss of Future income tribunal has rightly rejected the said claim on the ground that claimant is a permanent employee of Hatti Gold Mines and on account of injuries sustained he has not been removed from the service and the said finding does not call for -11- any interference. However considering the nature of injury as also the evidence of Doctor PW.2 who has issued the disability certificate it goes to show that claimant is unable to consume solid foods. There is no worthwhile admission elicited in the cross examination this witness i.e., Doctor PW.2 to discredit statement made in examination in chief. In view of the fact that the claimant has to spend rest of his life with consuming semi solid foods or liquid food it would consequently have adverse effect on his health. Hence, tribunal was awarding a meager compensation 20,000/- towards Physical discomforts. In view of the discussions made herein above I am of the considered view that claimant entitled for a additional compensation of 50,000/- towards physical disability. It is noticed that on account of said injury which is pennia in nature as opined by the Doctor there would be discomfort throughout the life of claimant and tribunal has not awarded any amount -12- towards loss of amenities and as such a sum of 20,000/- is awarded under the heading Loss of amenities.

Though claimant has sought for award of compensation towards future medical expenses and the nature of injury being such that it requires constant medical attention reasonable compensation requires awarded towards future medical expenses. Claimant has also not produced any material in this regard and as such a compensation of 10,000/- if awarded would meet the ends of justice as it would be a just and reasonable compensation. Accordingly same is awarded.

It is an admitted fact that claimant was an inpatient at OPEC hospital from 21.09.2004 to

20.10.2004 as per discharge summary Ex.P10 and on account of being inpatient he would have been taken - 13- care of his family members who would have used transport to and fro from their residence to hospital either by public transport or private transport and as such claimant is entitled for transportation charges. In fact claimant has produced Taxi bills as per Ex.P5. The author of the said bills have not been examined. However taking into consideration the fact that claimant was inpatient for about 30 days and would have expended amounts towards nourishment, conveyance and attendant charges. considered view that a sum of Rs. 12,000/- if awarded towards Food, Nourishment, Attendant and Conveyance charges it would meet the ends and justice. Accordingly the same is awarded. am of I

In view of the above discussion the following order is passed: (i) MFA is allowed in part. ORDER - 14 - (ii) Additional compensation of Rs. 1, 15,000/- which shall carry interest at the rate of 6% p.a. from the date of petition. (iii) Payment of apportionment made by the tribunal shall holds good for the enhanced compensation. (iv) Registry to draw award accordingly. Sd/ JUDGE MSR