IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR MFA NO. 3378 OF 2018 (MV) BETWEEN MRS. MEHERUNISA W/O ABUBAKAR AGED ABOUT 48 YEARS R/A KISMAT COMPOUND SANTHOSH NAGAR PERMAPALLI ROAD AMBAGILU UDUPI TALUK & DISTRICT-576101. ... APPELLANT (BY SRI. SRIKANTH. N. V. – ADV., FOR SRI. B. S. SACHIN- ADVOCATE) AND 1. SURESH S/O SUNDARA AGED ABOUT 42 YEARS R/A H. NO. 10-68F BLOCK NO.10, UDYAVARA UDUPI TALUK & DISTRICT-576101.
2. UNITED INDIA INSURANCE CO. LTD., REP. BY ITS DIVI. MANAGER JEWEL PLAZA MARUTHI VEETHIKA ROAD UDUPI – 576101. ... RESPONDENTS (By Sri.O. MAHESH – ADVOCATE FOR R-2 R-1 SERVED) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 20.01.2018 PASSED IN MVC NOL. 1053/2016 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND ADDITIONAL MACT, UDUPI, 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:
JUDGMENT Heard the learned counsel for the appellant and the learned counsel for respondent No.2 – Insurance Company and perused the records. Respondent No.1 has been served.
2. Though the matter is listed for admission, with consent of the learned counsel for both the parties, the same is heard finally and is disposed of by this judgment.
3. The injured-claimant has preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal by its order dated 20.01.2018 in MVC No.1053/2016, seeking enhancement of compensation.
4. The factual matrix is that on 16.05.2016 at 17.30 hours when the claimant – appellant was proceeding towards Moodanidamburu, Udupi as a pillion rider in a motor cycle bearing Regn.No.KA-20- EG-3478, when they neard Saraswathi School of Shiribeedu, at that time, an autorickshaw bearing Regn.No.KA-20C-5081 driven by its driver in a rash and negligent manner had dashed to their motor cycle and caused the accident. As a result, the claimant was thrown off the vehicle and sustained haematoma over occipital region of scalp, pain on left elbow and abrasion of left side of face. Immediately after the accident, the appellant was treated as an in-patient for a period of four days and had incurred expenditure in that regard. Hence, she filed a claim petition before the Tribunal seeking compensation.
5. After service of notice, the owner of the offending vehicle as well as the insurer did appear before the tribunal, filed their written statement and contested the claim petition. Respondent No.2 – Insurance Company contended that the accident did not occur due to the negligence of the autorickshaw driver, whereas the appellant herself was riding the motor cycle and caused the accident. Since she did not have a driving licence, she had falsely claimed that her son was riding the motor cycle at the time of the accident. Hence, the injuries sustained, amount spent for the purpose of food, medicines, nourishment, attendant and conveyance charges were denied.
During the enquiry before the tribunal, the claimant has established the occurrence of the accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage and the same has remained unchallenged either by the owner of the vehicle or by the insurer.
6. The tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligence of the driver of the offending autorickshaw and consequently awarded Rs.20,000/- towards ‘Pain and suffering’, Rs.14,379/-
towards ‘Medical expenses’, Rs.3,000/- towards ‘Conveyance, food, nourishment, attendant charges’ and Rs.10,000/- towards ‘Loss of amenities’. Thus, in all the Tribunal granted a total compensation of Rs.47,379/- with interest at 9% per annum from the date of petition till the date of realization. It is this judgment which is under challenge in this appeal.
7. The learned counsel for the appellant vehemently contended that the tribunal without considering the fact that the injuries suffered were grievous in nature, has granted very meagre amount of Rs.20,000/- towards ‘Pain and suffering’. Further, though the appellant was an in-patient for four days in the hospital and incurred huge expenses towards food, conveyance, nourishment, etc., the Tribunal has granted only a sum of Rs.3,000/- towards the same, which is very much on the lower side. Moreover, the Tribunal erred in awarding just Rs.10,000/- towards loss of amenities. Thus, the learned counsel contends that in spite of the fact that the appellant suffered collar bone fracture, and though had suffered 16% disability of both upper limbs, has not considered the said aspects and has proceeded to award meagre compensation on the whole. Hence, he contends that the compensation awarded by the Tribunal may be considerably enhanced by allowing this appeal.
8. Per contra, the learned counsel appearing for the second respondent - Insurer submitted that the tribunal, on appreciation of the evidence and material on record has rightly come to the conclusion that the injuries suffered by the appellant were simple in nature and has awarded just and fair compensation under all the heads, which does not call for interference and prays for dismissal of the appeal.
9. On careful evaluation of the material on record, it is seen that the injured claimant had sustained haematoma over occipital region of scalp 5cm. x 4cm., pain on left elbow and abrasion on left side of face 2cm x 1cm. and took treatment for a period of four days as an in-patient. The said injuries are simple in nature, even as opined by the Tribunal. Under such circumstances, having regard to the nature of injuries sustained by the claimant, period of treatment undergone by the injured the compensation awarded by the tribunal towards ‘Pain and suffering’ in a sum of Rs.20,000/- is slightly on the lower side. Hence, compensation under the said head is enhanced by another Rs.10,000/-. Hence, the compensation towards ‘Pain and suffering’ would totally amount to Rs.30,000/-. However, I am of the opinion that the compensation awarded by the tribunal under other heads is just and reasonable and does not call for interference. Thus, in all, the claimant is entitled to a total compensation of Rs.57,379/- as against Rs.47,379/- awarded by the Tribunal.
Accordingly, I proceed to pass the following:
O R D E R The appeal is allowed in part. In modification of the impugned judgment and award dated 20.01.2018 passed by the Tribunal in MVC No.1053/2016, the compensation payable to the appellant - claimant is enhanced from Rs.47,379/- to Rs.57,379/-. The enhanced compensation would come to Rs.10,000/-. The second respondent-insurer shall deposit the enhanced compensation with interest before the tribunal within four weeks from the date of receipt of certified copy of this judgment and on such deposit, the same shall be disbursed to the claimant, on proper identification. However, the impugned judgment and award, in so far as it relates to the rate of interest is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS