IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE BELLUNKE A.S.
M.F.A. NO.1659 OF 2013 (MV) BETWEEN:
KUM. ASHWINI AGED 11 YEARS D/O JAYARAM SINCE MINOR REPRESENTED BY HER FATHER AND NATURAL GUARDIAN JAYARAM S/O LATE LAKSHMANA SHETTY AGED 41 YEARS RESIDENT OF KANTENAHALLI KAVALU VILLAGE ARAKALGOD TALUK HASSAN DISTRICT-573 102. APPELLANT (BY SRI. B.S. BASAVARAJU, ADVOCATE) AND:
1. H R YOGESH S/O RAJU AGED ABOUT 25 YEARS DRIVER HALEGOTE VILLAGE HEBBALE POST-571 236.
2. B.JANARDHANA PRABHU S/O B.SESHSGIRIPRABHU MAJOR PROP: B.RAGAVENDRA MOTOR SERVICE PONMALE NILAYA, KAVERY LAYOUT KUSHALNAGAR-571 236.
3. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY 2ND FLOOR, 37, JLB ROAD CHAMARAJAPURAM MYSURU-570 004 BY ITS BRANCH MANAGER ... RESPONDENTS (BY SRI. RAVI S.SAMPRATHI, ADVOCATE FOR R-3 DR. S.P.UDGATA, ADVOCATE FOR R-2 R-1 SERVED UNREPRESENTED) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.9.2012 PASSED IN MVC NO.81/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MADIKERI, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Heard the learned counsel for the appellant and learned counsel for the respondent Nos.2 and 3. Respondent No.1 though served, remained unrepresented.
2. The appeal is filed against the judgment and award passed in MVC No.81/2011 by the learned Senior Civil Judge and MACT, Madikeri dated 29.09.2012 seeking enhancement of the compensation awarded by the Tribunal on account of the injuries suffered by the claimant.
3. The brief facts of the case on hand are that, a minor girl, aged 11 years, met with an accident on 05.08.2010 at 4.20 p.m., while she was returning home after attending her school. According to the claimant/petitioner, a bus bearing No.KA-12-A-3777 came from Kushalnagar to Somwarpet driven in a rash and negligent manner and rear wheel of the bus ran over the right foot of the petitioner. Therefore, she sustained injuries on both right and left foot. Thereafter, she was shifted to Government Hospital, Kushalnagar. After first aid, she was shifted to Wenlock Hospital, Mangalore where the claimant took treatment as an inpatient for 45 days and on account of the injuries, she suffered permanent disability. She incurred huge medical expenses and her future prospects is affected. Therefore, Claim Petition was filed claiming compensation of Rs.5,00,000/-. The averments made in the Claim Petition was resisted by the respondent-Insurance Company. By denying the petition averments, it is contended that the liability of the Insurance Company is subject to terms and conditions of the policy issued by it. It is further contended that the quantum of compensation claimed is highly excessive. Therefore, the respondent had sought to dismiss the petition.
4. The learned Tribunal held trial of the petition on the aforesaid pleadings. On the basis of the material evidence available on record, the Tribunal quantified the compensation payable to the claimant at Rs.1,30,478/- with interest @ 6% p.a. from the date of the petition till realization. Seeking enhancement of the compensation, the present appeal is filed by the claimant.
5. It is contended by the learned Counsel for the appellant that the claimant has suffered lacerated injury over the dorsum of right foot and swelling of lift middle one third leg with tenderness drive the motor vehicle with gear also. Thereby, she has suffered permanent disability.
Thereby, award of the Tribunal to the tune of Rs.10,000/- towards pain and sufferings is on the lower side. It is further contended that she has suffered loss of amenities and the Tribunal has not awarded any compensation towards incidental charges and hence, he seeks for enhancement of the compensation.
6. The learned counsel for the respondent- Insurance Company contended that the compensation awarded by the Tribunal is just and proper. Hence, no interference is called for.
7. Heard the both learned counsel at length.
8. The learned counsel for the appellant contended that the doctor was examined by the claimant as CW-1. The girl was admitted in a hospital for 45 days as an inpatient. The doctor who has issued disability certificate had not treated the injured. The doctor who had treated the injured has not been examined. Therefore, taking into consideration the material evidence available on record, the compensation requires to be enhanced.
9. The learned counsel for the respondent- Insurance Company submitted that the medical expenses have been granted as per the medical bills produced by the claimant. He further submits that reasonable compensation has been awarded on all the heads. Hence, sought for dismissal of the appeal.
10. Having regard to the aforesaid dispute, the points that would arise for consideration is:
i) Whether the claimant is entitled for enhancement of the compensation?
ii) If point No.1 is answered in affirmative, then what is quantum of amount to be awarded as compensation to the appellant/claimant?
11. As regards the certificate at Ex.P33, I have gone through the said document. It is not issued by a doctor who had treated the injured. The doctor examined as CW-1 has given evidence based on the record. Even as per the evidence of CW-1, it cannot be categorically stated the percentage of the disability as such. However, the Tribunal has taken the nature of injuries suffered by the minor girl. Having regard to the restriction in the movement of the limbs and in the absence of earning capacity of the minor, the Tribunal has awarded a compensation of Rs.50,000/- towards pain and sufferings, Rs.10,000/- towards conveyance charges, Rs.5,000/- towards nutritious food and Rs.50,000/- towards future unhappiness and loss of amenities. However, medical expenses awarded is only Rs.15,478/-. Having regard to the nature of injuries suffered, and the period spent for treatment in the hospital, amount awarded at Rs.10,000/- towards conveyance charges and Rs.5,000/- towards nutritious food needs little enhancement. Though the hospital where claimant took the treatment is a Government Hospital, the incidental charges and attendant charges has to be incurred by the claimant. Therefore, another sum of Rs.10,000/- can be awarded on the said head. The compensation awarded on other heads of pain and sufferings and future unhappiness and loss of amenities does not call for interference.
12. Having regard to the aforesaid reasons, I answer the points in affirmative. Hence, I pass the following:
ORDER The appeal filed by the appellant/claimant is partly allowed. The compensation is enhanced to Rs.10,000/-. The same shall carry interest as ordered by the Tribunal. The amount shall be deposited within 30 days from the date of receipt of certified copy of this order.
Registry is directed to send back the records forthwith.
(Sd/-) JUDGE Prs*