IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2019 BEFORE The Hon'ble Mr. Justice Mohammad Nawaz Miscellaneous First Appeal No.8400/2013 (mv) Between:
N. VASATH SON OF MALLARAPPA AGED ABOUT 29 YEARS WORKING AS PETROL BUNK ASSISTANT, AND AGRICULTURIST, RESIDENT OF KANNURU VILLAGE, ANANDAPURAM HOBLI, SAGAR TALUK – 577 401.
... APPELLANT (BY SRI. VIJAYA M. N ADVOCATE) And:
1. NAGARAJ, SON OF BADIYANAIKA, AGED ABOUT 26 YEARS RESIDENT OF BALLAPURA VILLAGE, CHIKKAMANGALURU DISTRICT – 577 101 DRIVER BUS BEARING NO. KA 15/A-7144.
2. K.M. ALTAF HUSSEIN SON OF LATE AMANULLA PASHA, MAJOR, K.R. PURAM, BADAVANE SHIMOGA – 577 201 OWNER OF BUS REG. NO.KA 14/A 07144 .
3. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE COMPANY LTD B.H ROAD, SHIMOGA – 577 201.
4. NINGAPPA, S/O SHIVAPPA TOMBRI AGED ABOUT 27 YEARS, R/O BANAVASI, SIRASI TALUK, U.K – 581 401.
5. SMT. PADMAVATHI S. SHENAI W/O SRINIVAS SHENAI, MAJOR, OWNER OF VIGNESHWAR MOTOR SERVICES, 2ND CROSS, 1ST MAIN, VIJAYA NAGAR, SHIMOGA – 577 201 OWNER OF BUS BEARING REG. NO. KA 14/A -5618.
6. THE DIVISIONAL MANAGER THE NEW INDIA INSURANCE COMPANY LIMITED, B.H. ROAD, SHIMOGA - 577201 ... RESPONDENTS (BY SRI.O. MAHESH ADVOCATE FOR R3, R2, AND R5 (SD) SRI. M. NARAYANAPPA, ADVOCATE FOR R6) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.4.2013 PASSED IN MVC NO. 145 OF 2012 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC AND MEMBER, ADDL. MACT, SAGAR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, with the consent of the learned counsel appearing for both the parties, the appeal is taken up for final disposal.
2. This appeal is by the injured claimant seeking enhancement of compensation awarded by the Tribunal in MVC No.145 of 2012, wherein a total compensation of `1,44,761/- has been awarded for the injuries sustained by the claimant in a road traffic accident.
3. It is the case of the claimant that on 29.08.2011 at about 2.20 p.m. when he was travelling in a bus bearing Registration No.KA-14/A-7144 from Shiralikoppa to Shikaripura, at that time, near Paradeshi Mallappa Temple, Tadagani gate, the driver of the bus drove the same in a rash and negligent manner and at the same time from the opposite direction, the bus bearing registration No.KA-14/A-5618 also came in a rash and negligent manner and in view of collision between both the buses, the claimant sustained injuries to his right hand, right leg, face and other parts of the body. Thereafter, he was shifted to Government Hospital, Shikaripura and after first aid, he was shifted to Spandana Hospital, Sagar, wherein he was treated for the injuries as an inpatient for about ten days and operation was conducted to his right leg by inserting steel rod, etc.
4. The Tribunal, after considering the evidence and material on record, awarded a total compensation of `1,44,761/- under the following heads:
5. Further, the Tribunal held that there is head on collision between the bus bearing registration No.KA- 14/A-7144 and the bus bearing registration No.KA- 14/A-5618. The drivers of both the buses have contributed their negligence and therefore, held that the owner and insurer of both the buses are equally liable to pay the compensation with interest at 9% per annum.
6. The learned counsel for the appellant would contend that the total compensation awarded is not commensurate with the injuries sustained by the appellant and therefore, he seeks to enhance the compensation by modifying the impugned judgment and award.
7. The learned counsel for the insurance company would justify the award contending that the same is just and reasonable and does not call for interference.
8. The claim petition was filed arraying the owner, insurer and driver of both vehicles. PW.1 has deposed that the accident was on account of the rash and negligent driving by the drivers of both the vehicles. The IMV report at Ex.P.12 shows damage caused to the front side of both the vehicles. Hence, the finding of the tribunal that both the drivers have contributed their negligence to the accident can not be found fault with.
9. The discharge summary and wound certificate are marked as Exs.P.5 and P.6 respectively. The case sheet, X-ray and reports are marked as Exs.P.13 to P.16. Perusal of the medical evidence goes to show that the appellant had sustained tenderness and swelling over the right hand. He had sustained fracture to right humerus and O.R.I.F. with DCP was done. He was admitted to the hospital on 2.9.2011 and discharged on 10.09.2011. Surgery was conducted on 04.09.2011. According to the Doctor - PW.2, open reduction internal fixation was done with two inter- fragmentary screw with F hold DCP. The appellant was advised to continue POP slab for one month and after 45 days, check X-ray was done and it was seen that the fracture was united. However, the appellant was advised to undergo surgery for removal of implants and approximate cost was estimated to be `35,000/-
10. Considering the injuries sustained by the appellant and the medical evidence on record, I deem it appropriate to award a sum of `35,000/- for pain and suffering and mental agony as against `25,000/-
awarded by the Tribunal. The compensation awarded for conveyance, attendant and nutrition is enhanced from `5,000/- to `10,000/-. The appellant is awarded total compensation of `20,000/- as against `12,000/- for loss of earning during the treatment period. The compensation awarded under the other heads are just and reasonable. Hence, the appellant is entitled for a total compensation of `1,67,761/- as against `1,44,761/- awarded by the Tribunal. Accordingly, I pass the following order:
(i) The appeal is allowed in part.
(ii) The judgment and award dated 27.04.2013 passed in MVC No.145/2012 by the Senior Civil Judge and JMFC, Additional MACT, Sagar, is modified.
(iii) The appellant is entitled for a total compensation of `1,67,761/- as against `1,44,761/- awarded by the Tribunal. The enhanced compensation of `23,000/- shall carry interest at the rate of 6% per annum from the date of petition till the date of its realization.
(iv) The order passed by the Tribunal directing the respondent Nos.3 and 6 therein to deposit 50% of the compensation amount remains undisturbed. Both the respondent Nos.3 and 6 shall deposit 50% of compensation each within a period of four weeks from the date of receipt of certified copy of this judgment.
SD/- JUDGE SA