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2022 Supreme(Kar) 80
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
MS. J.M.KHAZI, J.
The Divisional Manager, The Oriental Insurance Co. Ltd. – Appellant
Versus
Saalibai, W/o Kasu Rathod – Respondent
MFA.No.200789 of 2018 (MV) C/W MFA.No.201966 of 2018 (MV)
Decided on : 19-05-2022
Advocate Appeared:
For the Appellant :SRI. S.S.ASPALLI, ADVOCATE
For the Respondent:SRI. SANJEEV PATIL, ADVOCATE
Point of Law : Order 41 Rule 27 C.P.C, a party shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court unless and until it establish that the Court from whose decree appeal is preferred has refused to admit the said evidence.
Headnote:
Civil Procedure Code, 1908 – Order 41 Rule 27 – Section 151 – Reduction of compensation – Granting compensation – Enhancement of compensation – Petitioner has filed under Order 41 Rule 27 r/w/s 151 C.P.C, with a prayer to permit petitioner to produce the additional documents – Along with the said application, petitioner has produced the original bill claiming that through the same she has paid to the United Hospital, where she took treatment – Para 22.
Finding of the court: There is no evidence as to what exactly is further treatment petitioner is required – In fact at time she was undergoing treatment, she has refused to undergo surgery with regard to fracture of upper limb – Consequently, no implants are inserted – In absence of any evidence, Tribunal has erred in granting compensation and there is no basis for arriving at such figure – Anyhow having regard to fact petitioner is at time of accident, it would be reasonable to grant compensation under this head and accordingly, compensation for future medical expenses is restricted as against granted by the Tribunal – In the result appeal filed by respondent Insurance company requires to be allowed in part – It is pertinent to note that though in this appeal compensation under head loss of amenities is granted (which was not granted by the Tribunal), having regard to fact that compensation granted under other heads is reduced, in result appeal filed by petitioner fails and accordingly court proceed to pass the following order
Results: Petitioner is dismissed.
JUDGMENT :
These two appeals are arising out of judgment and award dated 17.01.2018 in MVC.No.1039/2016.
2. While MFA.No.200789/2018 is filed by the Insurance company seeking reduction of compensation, MFA.No.201966/2018 is filed by the petitioner for enhancement of compensation.
3. Since respondent No.2 -Insurance company has raised objections regarding admissibility of medical bill for a sum of Rs.1,71,300/-which is marked as Bill No.1 of Ex.P13, before this Court, petitioner has filed I.A.No.1/2021 under Order 41 Rule 27 r/w/s 151 C.P.C, with a prayer to permit petitioner to produce the additional documents. Along with the said application, petitioner has produced the original bill claiming that through the same she has paid a sum of Rs.1,71,300/-to the United Hospital, where she took treatment.
4. Respondent No.2 – Insurance company has not filed objections to this application.
5. For the sake of convenience the parties are referred to by their rank before the Tribunal.
6. FACTS: The brief facts leading to filing of claim petition are that on 08.05.2016 at about 6.30 p.m., petitioner was proceeding to Wadi town to attend her relative’s marriage on motor cycle bearing registration No.KA-32/EG-4101 (hereinafter referred to as offending vehicle), as a pillion rider. One Kailash, S/o Shamrao was riding the motor cycle. When they were near the bus stand at Kalakatta village, on the hump the rider of the motor cycle rode it in a high speed, in a rash or negligent manner as a result of which both petitioner and rider fell down. In the said accident, petitioner sustained head injuries. Immediately she was shifted to Government Hospital, Wadi and after first aid, she was taken to United Hospital, Kalaburagi. She took treatment as in-patient from 08.05.2016 to 23.05.2016. On account of the injuries sustained by the petitioner, inspite of prolonged treatment, she is not completely cured. She is suffering from permanent partial disability. She has spent Rs.3,00,000/- for treatment and requires additional sum of Rs.2,00,000/- further treatment. As the owner and insurer of the offending vehicle, respondents are jointly and severally liable to pay the compensation and hence the petition.
7. Before the Tribunal inspite of due service of notice respondent No.1 remained absent and as such he was placed Ex-parte.
8. Respondent No.2 has appeared and filed written statement denying that the accident occurred due to the rash or negligent act of the rider of the offending vehicle. At the time of alleged accident, the rider of the offending vehicle was not having a valid and effective driving license. Respondent No.2 has also denied the age, income, occupation of the petitioner, the nature of injury sustained, period of treatment, expenses incurred and that injuries have resulted in permanent partial disability. The compensation claimed is exorbitant, baseless and excessive.
9. Based on these pleadings, the Tribunal has framed the necessary issues.
10. In support of her case, petitioner got herself examined himself as PW-1 and two witnesses as PWs-2 and 3. She has got marked Exs.P1 to 15.
11. On behalf of respondent No.2, RW-1 is examined and Ex.R1 is marked.
12. Vide the impugned judgment and award, the Tribunal has partly allowed the claim petition and granted compensation in a sum of Rs.5,98,000/-with interest at 6% p.a as detailed below:
| Heads | Amount In Rs. |
| Towards Pain and Suffering | 1,00,000 |
| Towards Medical expenses | 2,26,700 |
| Towards Diet & Attendant charges | 20,000 |
| Towards Loss of Future Earnings | 1,36,080 |
| Towards Future Medical Treatment | 1,00,000 |
| Loss of income during treatment period | 15,000 |
| Total Rounded Off | 5,97,780 5,98,000 |
13. Challenging impugned judgment and award, respondent No.2 has filed appeal contenting that the impugned judgment and award is against the law, evidence and circumstances
