IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD MISCELLANEOUS FIRST APPEAL NO.9066 OF 2012 (MV) BETWEEN:
BABY SMITHA W.JOYEE D/O WILLIAMS B.S.N. AGED ABOUT 12 YEARS R/AT NO.44, NANJAPPA BUILDING, 4TH PHASE, GANAPATHINAGAR BANGALORE – 560 058 PETITIONER SINCE MINOR REPRESENTED BY HER NATURAL GUARDIAN FATHER MR.WILLIAMS B.S.N. ... APPELLANT (BY SMT.ARCHANA MURTHY.P. ADV. FOR SRI.S DORAI BABU, ADV.) AND:
1. M.P.MADHU MAJOR, PROPRIETOR M/S UMA METAL WORKS NO.49, 8TH MAIN ROAD, II STAGE, 3RD BLOCK, WEST OF CHORD ROAD, BANGALORE – 560 079 (EXPARTE) 2. THE NEW INDIA ASSURANCE CO. LTD. CDU VII (671500), VOKKALIGARA SANGHA COMPLEX,5TH FLOOR, HUDSON CIRCLE, BANGALORE – 560 027 ... RESPONDENTS (BY SRI.JAIPRAKASH R, ADV. FOR R2;
NOTICE TO R1 IS DISPENSED WITH) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:09.11.2011 PASSED IN MVC NO.6561/2010 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Father of the injured has filed this appeal challenging the judgment and award dated 9.11.2011 passed by the Motor Accident Claims Tribunal, Metropolitan Area, Bangalore Bangalore in MVC No..6561/2010 whereby the Tribunal has granted compensation of Rs.63,600/-with 8% interest.
2. It is stated that on 1.4.2010 at about 12.00 hours the driver of the tempo bearing registration No.KA -02 D 1448 drove the same in a rash and negligent manner from south to north direction of Ganapathinagar 9th Cross, Ishwarya Store, Bangalore, hit to the petitioner who was crossing the road from east to west direction, as a result of which she fell on the ground. The injured sustained head injury and other injuries all over her body. Injured has been shifted to M.S. Ramaiah Hospital for first aid treatment. She was inpatient in the hospital from 1.4.2010 to 4.4.2010. She was studying in 5th standard at the time of accident. Immediately after recovering , the father of the injured filed claim petition in MVC No.6561/2010. To establish her case, she has examined two witnesses and got marked 27 documents and on the other hand, the insurance company has neither examined any witnesses nor marked any documents. On appreciation of the oral and documentary evidence, the Tribunal has awarded a compensation of Rs.63,600/- with 8% interest. Being aggrieved by the same, the appellant has filed this appeal seeking enhancement of compensation.
3.Learned counsel for the appellant submits that the claimant has examined Dr. Gopalappa PW2 who, in his deposition, has specifically stated that injured required to spend future medical expenses at Rs.70,.000/-. In addition to the certificate issued by the Doctor, the document Ex.P20 specifically mentions that injured requires cosmetic correction which approximately costs Rs.70,000/-. The Tribunal has not considered this aspect of the matter. She further contended that the claimant has suffered head injuries and she was inpatient for 4 days. The tribunal has granted only meagre amount on the head of pain and suffering and loss of amenities. Even for the attendant, diet and conveyance, the Tribunal has awarded meagre compensation.
4. Learned counsel for the respondent – Insurance company submitted that Doctor PW2- Gopalappa has not stated about any disability and there is no injuries, the fracture has been reunited. Therefore the Tribunal has granted just and fair compensation and hence he sought for dismissal of the appeal.
5. Heard the learned counsel for both the parties. It is not in dispute that appellant sustained injuries due to the accident that occurred on 1.4.2010 due to rash and negligent driving of the tempo bearing regn No.KA -02 D 1448. Due to the accident, she suffered head injuries and depressed fracture of right parietal bone, she was treated conservatively. She was inpatient for 4 days and she suffered lot of pain. The Tribunal is not justified in granting only Rs.20,000/- towards pain and suffering. Hence it has been enhanced from Rs.20,000/- to Rs.40,000/-. Due to head injuries, she was inpatient for 4 days. Even as per the Doctor PW 2 there is disfigurement. Therefore, she requires future medical expenses for cosmetic surgery. The tribunal is not justified in granting Rs.10,000/- towards loss of amenities and future unhappiness. Hence it has been enhanced to Rs.30,000/- towards the same.
6. The Tribunal is not justified in granting any compensation towards future medical expenses. The Doctor has been examined as PW2- Dr. Gopalappa H.M, who specifically states that the injured has to undergo future surgery with approximate cost of Rs.70,000/- and he has issued certificate which is marked as Ex.P20 and the claimant has produced Ex.P 20 issued by Dr. Ravi Gopal Varma, Professor & Head of Department of Neurosurgery. It is mentioned that there is requirement of cosmetic correction and it costs approximately Rs.70,000/-. In view of the same, this court is of the opinion that the Tribunal is not justified in not granting future medical expenses. Hence a sum of Rs.70,000/- is awarded towards future medical expenses. Hence the claimant is entitled for Rs.Rs.40,000/- towards pain and suffering, Rs.30,000/- towards loss of amenities and future unhappiness, Rs.30,000/- towards diet and conveyance charges, Medical expenses Rs.17,600/-. Hence the appellant is entitled for a total compensation of Rs.1,93,600/- as against Rs.63,000/- awarded by the Tribunal. The appeal is allowed in part. The enhanced amount carries interest at 6% p.a. from the date of petition till the date of payment.
The Insurance company is directed to deposit the compensation amount within 6 weeks from the date of receipt of copy of this order.
Sd/- JUDGE Nm