IN THE HI GH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 2l DAY OF OCTOBER 2010 BEFORE THE HON’BLE MRJUSTICE ARAVIND KUIVIAR MFA.NO. 4478/2004 c/w CROB NO. 318/2004 BETWEEN: NAGANAGOUDA 5/0. BASANGOUDA HIREGOUDAR AGED ABOUT 35 YEARS 0CC: SERVICE, R/0. HOMBAL TQ.GADAG, DIST: GADAG APPELLANT/CoS (COMMON IN BOTH CASES) (BY SRI GURURAJ R. TURANAL ADV. FOR LAXMAN T. MANTAGANI, ADV.) Ccu rci ccfc cIo1 AND: 1. CHANDRAGOUDA DODDAGOUDA DODDAGOUDAR, AGE: MAJOR 0CC: OWNER OF THE TRUCK R/O. GOJANUR. OTQ: SHIRHA’fTI 2. BEERAPPA NINGAPPA DODDAMANI AGE: MAJOR, 0CC: DRIVER R/O. G0JANAUR, TQ: SHIRHAYI’I DIST: GADAG 3. ThE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY DiVISION OFFICE SUJATHA COMPLEX NEAR SWIMMING POOL. HUBLI RESPONDENTS (COMTV]ON IN BOTH CASES) (BY SRI DINESH M. KULKARNI. ADV. FOR RI NOTICE TO R2 HELD SUFFICIENT SRI H. T. JAGADEESH, ADV. FOR SRI S. SRISHAILA, ADV, FOR R3) MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGEMENT AND AWARD DATED 23/3/2004 PASSED IN MVC NO. 133/2002 ON ThE FILE OF THE DIST. JUDGE & MEMBER. MACT, GADAG, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. MFA CROB FILED UNDER ORDER 41 RULE 22 CPC AGAINST THE JUDGEMENT AND AWARD DATED 23/3/2004 PASSED IN MVC NO. 133/2002 ON THE FILE OF THE DIST. JUDGE & M.A.C.T., GADAG, AWARDING COMPENSATION OF RS.87,500/- WITH INTEREST AT 6% P.A. AND DIRECTING THE RESPONDENT NO.1 HEREIN TO RECOVER THE SAME FROM THE CROSS-APPELLANT AND THE RESPONDENT NO.2 HEREIN. THIS MFA AND CROB ARE COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT MFA 4478/2004 is filed by claimant seeking enhancement of compensation and also for fastening the liability on the insurer by questioning the Judgment and Award passed in MVC 133/02 dated 23/3/2004 by Dist. Judge & Member, MACT, Gadag. 2. Cross Objection No. 318/04 is ified by the owner of the offending vehicle contending that the vehicle involved in accident was insured with 3rd respondent and liability is to he fixed on Insurance company. Hence, appeal and cross objection are taken up together for consideration and disposal. -4-- 3. The facts in nutshell leading to filing of this appeal and cross objector are as under: In a road traffic accident that occurred on 12/12/2001, when petitioner was travelling in his motorcycle bearing No. KA —26/H-4779 from Hubli to Sheludi village, a truck bearing registration No.KA.25/A-1918 is said to have dashed against the motor cycle and consequently claimant is said to have sustained injuries. As such claim petition was filed in MVC No.133/2002 seeking compensation of 10,00,000/- from the respondent. -4- 4. On service of notice the 3rd respondent appeared an4 mccl the statement of objectioHs. Respondents 1 and 2 had been placed ex-parte. On the basis of the pleadings. the Tribunal framed the issues for its consideration. Claimant got himself examined as PW- I and got marked Ex.Pl to Ex.P37. 3rd respondent did not tender any evidence nor did they got marked any documents. On the basis of the pleadings and evidence on record, tribunal has allowed the claim petition in part and awarded a sum of Rs.87,500/- with interest at 6% p.a. and fixed the liability on respondents 1 and 2 viz., owner and the driver of the offending vehicle, Claim petition against third respondent-Insurer came to be dismissed. 5. It is this judgment and award which is questioned by the claimant in this appeal seeking for enhancement and by the owner to absolve him from the -5- liability on the ground that the offending vehicle was insured with the 3r1 respondent. 6. Heard learned advocates appearing for the parties, and perused the Judgment and Award passed by the Tribunal as also records secured from the Tribunal. At the outset Sri.Jagadish learned counsel appearing on behalf of the third respondent insurer would fairly admit that offending vehicle is insured with the third respondent and the policy was in vogue as on the date of the accident. In view of theY same, the judgment and award passed by the tribunal questioned in cross-objection 318/2004 to the extent of fastening liability on respondent Nos. 1 and 2 and dismissing the claim petition against third respondent-insurer cannot be sustained and accordingly, it is hereby set aside and the liability is fastened on the third respondent insurer and claim petition against respondent 1 and 2 stands dismissed by allowing Cross-objection 318/2004. -6- 7. In so ft-tr as the compensation awarded under various heads, it is to be noticed that claimant has suffered fracture of femur, fracture of tibia, and fibula and to evidence this fact he has produced the wound certificate which is at Ex.P-6. Tribunal has accepted the same and it is also found that second injury is found in Ex.P-6 i.e. fracture of lower right radius and posterior dislocation of both bones. 8. The medical bills have been produced and to evidence the fact that the claimant during the period of treatment had purchased the medicines, has produced bills at Ex.P8 to P36. Tribunal on examination of these hills which are at Ex.P8 to Ex.P36 found that the claimant would not have purchased medicines worth 70O/- to 800/- per day. The Tribunal has also discarded the said bills on the ground that it is not accompanied by prescription of Doctor. However, considering the nature of injury and the length of treatment obtained by the claimant, tribunal has awarded a sum of 2 1,000/- towards the medical -7- expenses. Tribunal has examined Ex.-P-7 which is the receipt issued by Shreyas Orthopedics Trauma Center dated 10/1/2002, which reflects that ward charges, X ray charges and O.T. charges etc. The amount reflected in the said bills is Rs.71,500/- has not been accepted and it has been discarded by the tribunal on the ground that author of Ex.P.7 is not examined. It is not in dispute that claimant has undergone surgical operation. When the Tribunal has accepted the wound certificate which is at Ex.P6, it could not have lost sight of the factual aspect of the claimant having expended the amount towards surgery, hospitalisation, doctor charges, O.T charges etc. Claimant was a inpatient for a period of 28 days, as per Ex.P-7. 9. In view of the same. I am of the considered view that tribunal fell in serious error in discarding this evidence, merely, on the ground that the author of Ex.P-7 is not examined. At this juncture Sri. dagadish. would contend that clainant in the cross examination has admitted that q a -8- I medical bills would be reimbursed by the bank. It is to be noted that only question that has been put to the said witness is whether said bills would be reimbursed by the bank for which the witness has stated In the affirmative. However, no further suggestion has been made or nothing worthwhile has been elicited from the said witness about these medical bills having been presented by the cishnant for reimbursement or the claimant having received the amount from the Bank by way of reimbursement. Admittedly. the original bifis are available on record which we-supposes that it Is not been presented seeking relmbursemeht. If reimbursement had been sought, It would not have been available with clsdmant since the bank will not reimburse medical bifis without original bills being produced. 10. In view of the same, I am of the considered view that compensation awarded by the Tribunal under the heading of medical expenses also deserves to be enhanced. Considering the nature of injuries, number of days of hospitalisation as also the medical bills and -9- receipt available on record the compensation as awarded by the Tribunal is enhanced under the following heads: i) Pain and suffering 15,0OOI- ii) Amenities: 2O,OOO/- Food, nourishment, iii) conveyance and Attendant charges d5,000/- iv) Medical expenses 60,OOO/- TOTAL 1,10,OOO/- In view of the above discussions, the following order is passed: ORDER (1) Cross objection No.318/2004 is allowed and judgment and award passed in MVC No.133/02, fixing the liability on cross-objector to indemnifij the amount awarded is set-aside and liability to indemnify is fixed on the third respondent Insurance Company. 10 - (ii) Appeal 4478/04 is hereby allowed and Judgment and award passed by the tribunal in MVC No.133/02 dated 23/3/2004 is Hereby modified and enhanced compensation of 1, 10,000/- is awarded in this appeal, which shall carry interest @ 6% pa. from the date of order till date of payment or deposit whichever is earlier. (iii) No order as to costs. (iv) Registry is directed to draw the award accordingly. (v) The amount in deposit in cross objection is ordered to be refunded to the cross objector on proper identification by the Registry. J VMB