IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR MISCELLANEOUS FIRST APPEAL NO.4239 OF 2011 (MV) C/W MFA CROB NO.191 OF 2013 IN MFA NO.4239/2011 BETWEEN:
NATIONAL INSURANCE COMPANY LTD. BHADRAVATHI SHIMOGA-577 301 REPRESENTED BY ITS BRANCH MANAGER … APPELLANT (BY SMT. H.R. RENUKA, ADVOCATE) AND:
1. M. VASANTHA S/O V. MAHADEVAIAH AGED ABOUT 20 YEARS R/O GONDICHATNAHALLI VILLAGE AND POST, SHIMOGA TALUK-577 201 2. THU.KESHAVAMURTHY S/O GIRIYAPPA ADULT, R/O BASAVESHWARANAGAR BHADRAVATHI-577 301 3. B.P. NAGARAJA S/O PERUMAL ADULT, R/O BOMMANKATTE VILLAGE BHADRAVATHI TALUK-577 301 … RESPONDENTS (BY SHRI. RAJENDRA S FOR SHRI. S.V. PRAKASH, ADVOCATE FOR R1; R3-SERVED, UNREPRESENTED;
NOTICE TO R2 DISPENSED WITH V/O/DATED 29.06.2016) THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.11.2010 PASSED IN MVC NO.10/2010 ON THE FILE OF THE DISTRICT JUDGE, ADDITIONAL MACT-II, I FAST TRACK COURT, SHIMOGA, AWARDING A COMPENSATION OF Rs.1,24,412/- WITH INTEREST @ 6% P.A. FROM THE DATE OF PETITION TILL PAYMENT.
IN MFA CROB NO.191 OF 2013 BETWEEN:
M. VASANTHA S/O V. MAHADEVAIAH AGED ABOUT 20 YEARS R/O GONDICHATNAHALLI VILLAGE AND POST, SHIMOGA TALUK-577 201 … CROSS OBJECTOR (BY SHRI. RAJENDRA S FOR SHRI. S.V. PRAKASH, ADVOCATES)
(BY SMT. H.R. RENUKA, ADVOCATE FOR R3) THIS MFA.CROB IN MFA NO.4239/2011 IS FILED U/O 41, RULE 22 OF CPC, AGAINST THE JUDGMENT AND AWARD DATED:29.11.2010 PASSED IN MVC NO.10/2010 ON THE FILE OF THE DISTRICT JUDGE, ADDITIONAL MACT- II, I FAST TRACK COURT, SHIMOGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THESE MFA AND MFA.CROB COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT These appeal and cross objection are presented by the Insurer and the claimant respectively challenging the judgment and award dated 29.11.2010 in MVC No.10/2010 passed by District Judge, Additional MACT-II, I Fast Track Court, Shimoga.
2. On 19.05.2003, claimant was dashed against by the offending vehicle, resulting him in sustaining injuries. He filed a claim petition seeking compensation. Learned Tribunal, on consideration of material on record, has awarded a sum of Rs.1,24,412/- with 6% interest p.a. as compensation.
3. Insurer is aggrieved by the compensation awarded under two heads namely, a sum of Rs.20,000/- under loss of amenities and Rs.75,000/- for non-performance of marriage prospects. Claimant has filed this appeal seeking enhancement.
4. Learned advocate for the claimant submits that compensation awarded is inadequate as claimant is suffering from ‘seizure disorder’ due to the accident and he has no prospects of marriage.
5. Learned advocate for the Insurer, adverting to the wound certificate – Ex.P4, submits that the wound certificate shows that claimant has suffered only simple injuries. Therefore, findings recorded by the learned Tribunal based on the medical certificate dated 20.03.2009 - Ex.P35 issued by a Neurophysician is wholly unsustainable. She also argued that as the claimant has suffered only simple injuries, the compensation under the head of loss of amenities is unsustainable.
6. I have carefully considered the rival submissions and perused the records.
7. Learned advocate for the Insurer is right in her submission that the Doctor has recorded that the claimant has suffered simple injuries. Medical expenses has been paid in full. In addition, attendance and conveyance charges of Rs.2,000/- and Special Diet of Rs.500/- have been awarded. A sum of Rs.20,000/- has been awarded under the head of pain and sufferings. Compensation awarded under these heads are just and appropriate.
8. Ex.P35 is a medical certificate issued by a Neurosurgeon stating that claimant has been under his treatment since 2006 and has been diagnosed “seizure disorder”. Doctor, who has issued Ex.P35 has not been examined. However, Doctor – one A.V. Nagaraj, Neurophysician has been examined and Ex.P36 has been marked through him. He has stated in his cross- examination that the claimant first visited him in the year 2006. He has also stated that he has not perused any medical records of Mc. Gann Hospital with regard to the treatment. He has admitted that as per Ex.P4, injuries sustained by the claimant are simple in nature. He has further admitted that the epilepsy disease can occur without an accident also. In the circumstances, the compensation awarded by the Tribunal towards loss of marriage prospects and loss of amenities based on Ex.P35 are unsustainable. Hence, the following;
ORDER (i) MFA No.4239/2011 filed by the Insurer is allowed in part;
(ii) MFA CROB No.191/2013 filed by the claimant is dismissed;
(iii) Compensation awarded by the Tribunal under the heads ‘loss of amenities’ at Rs.20,000/- and ‘marriage prospects’ at Rs.75,000/- are set-aside;
(iv) Claimant shall be entitled for a sum of Rs.29,412/- as compensation and;
(v) Owner of the vehicle and Insurer shall jointly and severally pay the compensation of Rs.29,412/- with 6% interest p.a. from the date of claim petition till the date of realization.
9. Learned advocate for the Insurer submits that 50% of the awarded amount has been deposited before the Tribunal. In the circumstances, compensation amount of Rs.29,412/- shall be paid to the claimant out of the amount in deposit and excess amount if any shall be refunded to the Insurer.
Sd/- JUDGE AV