IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No.8647 OF 2016 (MV) BETWEEN:
Kum. Nayana K.R D/o Rangaswamy Aged about 18 years R/at Tavaradevara Koppalu Salagame Post and Hobli Hassan Taluk & District Pin-573201. … Appellant (By Smt.Kavitha.H.C., Advocate) AND:
1. Lokesh S/o Ningegowda Major R/at College Road Arakalgudu City Hassan District-573201. Owner of Hero Honda Splendor Fashion Plus Motor Bike Bearing Regn No.KA-02-EY-835.
2. The Branch Manager National Insurance Co. Ltd, 1st Floor, Manjunatha Complex Old Bus stand road Picture Palace road Hassan-573201. ... Respondents (By Sri.Ravish Benni, Advocate for R2: Notice to R1 is dispensed with Vide order dated 14.09.2017) This MFA is filed under Section 173(1) of MV Act, against the Judgment and Award dated: 10.08.2016 passed in MVC No.1130/2015 on the file of the II Additional MACT, Hassan, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal, coming on for hearing this day, the Court, delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 10.08.2016 passed by the II Additional District & Sessions Judge and Additional MACT, Hassan in MVC No.1130/2015, whereby the Tribunal has awarded a compensation of Rs.94,476/- with interest at 6% p.a. from the date of petition till the date of deposit.
2. The brief facts of the case are that on 26.05.2015 at about 1.30 p.m. claimant was proceeding in Honda Activa motorbike bearing No.KA-13/U-3450 as a pillion rider, in front of the house of Nagaraju at Rajaghatta, at that time, the rider of motorbike bearing No.KA-13/V-3981 drove the same in a rash and negligent manner and dashed against the claimant’s motorbike. Due to the accident claimant sustained grievous injuries on her right leg and other multiple injuries all over the body. Immediately she was shifted to Janapriya Hospital where she was inpatient for 10 days. Immediately after recovering from the injuries, she has filed a claim petition before the MACT, Hassan in MVC No.1130/2015.
3. To establish her case, mother of the claimant was examined as PW1 and Dr.Abdul Basheer was examined as PW2 and got marked 15 documents. On the other hand, on behalf of the Insurance Company, official of the Insurance Company was examined as RW1 and got marked 3 documents. On appreciation of the oral and documentary evidence, the Tribunal has granted a compensation of Rs.94,476/- with interest at 6% p.a. Being not satisfied with the quantum of compensation claimant has filed this appeal.
4. Smt.H.C.Kavitha, learned counsel for the appellant submits that at the time of the accident, claimant was aged about 17 years and was a student. As per the judgment of the Hon‘ble Supreme Court in the case of MALLIKARJUN vs. DIVISONAL MANGER, NATIONAL INSURANCE CO. LTD.
AND ANOTHER reported in 2013 ACJ 2445, if the disability which is assessed by the doctor is upto 10%, claimant is entitled for compensation of Rs.1.00 lakh in addition to the other heads towards treatment, attendant, etc. But the Tribunal has not considered the same. Hence, he seeks for enhancement of compensation.
5. Per contra, Sri Ravish Benni, learned counsel appearing for respondent No.2 Insurance Company submits that in the pleadings it is stated that she was a student but in the evidence they have stated that she was doing tailoring work and earning Rs.4,000/- per month.
6. He further contended that the disability is less than 10%. Therefore, the Tribunal has granted a just and proper compensation. Hence, he seeks for dismissal of the appeal.
7. Heard learned counsel for the parties and perused the records.
8. It is not in dispute that due to the accident the claimant has suffered the injuries. She has examined Dr. Abdul Basheer as PW2. As per the doctor, disability to the right lower limb is 24% and the whole body disability is 8%. In view of the law laid down by the Hon’ble Supreme Court in MALLIKARJUN (supra) in case the disability is less than 10%, claimant is entitled for Rs.1.00 lakh compensation. The compensation granted under the heads of medical expenses and conveyance, nourishment and attendant charges are retained.
9. The award passed by the Tribunal, dated 10.08.2016, is modified as under:
and attendant charges Total 95,576/- *1,36,476/-
10. The Insurance Company is directed to deposit the enhanced compensation amount along with an interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of four weeks from the date of the receipt of a copy of this order. The amount so deposited by the Insurance Company shall be disbursed to the claimant, after due verification of his identity.
With the above modifications the appeal is allowed in part.
Sd/- JUDGE Cm/-
*corrected vide Court order dated:26.03.2019