IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MISCELLANEOUS FIRST APPEAL No.4045/2012 (MV) Between:
Smt. Pushpa, W/o Damodara, Aged: 36 years, Tailoring and house wife, Residing at Hosur veerapura, Ajjampura Hobli, Tarikere taluk, Chickamagalore District – 577 547. (By Sri Srikanth N.V., Advocate) And:
1. Sri Syed Riyaz S/o late syed Budan, Aged about 52 years, Driver of Lorry bearing Regn No.3039, R/o Mangala Village, Kollegal Taluk, Chamarajanagara District – 571 440.
2. Sri Shabir Ahmed S/o Ismailsab, Owner of Lorry No.KA-01-3039, R/o No.3256, Anegundi Road, 2nd Eidgah, Mysore – 15.
... Appellant 3. The Oriental Insurance Company Ltd., Insurer of lorry bearing Regn.No.KA-01-3039, No.4/12, Naveen Complex, Hebbal Main Road, Metagalli Mysore – 16.
(Policy No.422805/2006/2270 Valid from 14-09-2005 to 13-09-2006).
4. Manjy S/o Eranna, Aged about 32 years, Driver of Ambassador car bearing Regn, No.KA-09-B-5029 R/at Hebbalu, 2nd Stage, Door No.315, 4/5 Main, Mysore – 16 (FDL - 3345/98-99 valid upto 2.2.2019) 5. Rachamma W/o Rachaiah, Aged: Major, Owner of Ambassador Car, Bearing No.KA 09 B 5029. R/at No.482, 4th Cross, 2nd Stage, Hebbal, Mysore – 570 016.
6. New India Assurance Co., Ltd., Insurar of Ambassador Car No. KA 09 B 5029, No.73, 1st Floor, Madhvesh Complex, Nazarabad Road, Mysore : 570 010. (Insuere of policy No.
671001/31/05/1/000013678 Valid from 22.3.2006 to 21.3.2007.
(By Sri M.Narayanappa, Advocate for R3; Sri. Aruna .Y, Advocate for R6;
Vide order dated 07.07.2015 appeal ... Respondents against R1, R2, R4 & R5 dismissed.) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act, against the judgment and award dated 21.01.2011 passed in MVC No.104/2006 by Senior Civil Judge and Motor Vehicle Accidents Tribunal and Tarikere to the extent of disallowed claim and this appeal be allowed by enhancing the compensation to the extent claimed by the appellant at Rs.4,05,634/-.
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, the same is taken up for final disposal with the consent of both the learned counsel.
2. I have heard the learned counsel appearing for the appellant as well as the learned counsel appearing for respondent Nos.3 and 6.
3. This is an appeal filed by the claimant seeking enhancement of compensation. The case of the appellant is that on 04.06.2006 at about 5.45 p.m., while she was proceeding in a car bearing registration No.KA-09-B-5029, near G.Thimmapura gate on NH-206, the said car dashed against a lorry bearing registration No.KA-01-3039, which was parked by the side of the road in a negligent manner without putting any indicator. Due to the said accident, the inmates of the car sustained injuries. The appellant suffered injuries to her face, chest, abdomen, chin etc., and all over the body. She was shifted to Birur Government Hospital and after first aid she was shifted to Mc.Gann hospital, Shivamogga for higher treatment. She was operated on the face and one more operation was conducted on her left breast.
4. The learned counsel for the appellant submitted that the tribunal has awarded a meager compensation for the injuries suffered by the appellant. He submitted that the appellant was an inpatient for a period of 19 days and two operations were conducted and therefore, he seeks to enhance the compensation awarded.
5. Per contra, the learned counsel appearing for respondent Nos.3 and 6 submitted that the tribunal has awarded just and reasonable compensation and there are no grounds to interfere with the said judgment and award passed by the tribunal. Accordingly prays to dismiss the appeal.
6. The occurrence of the accident, in which the appellant sustaining injuries is not in dispute. The Tribunal after considering the evidence and material on record has awarded a total compensation of Rs.94,366/- with interest @ 6% p.a. The tribunal has further held that the accident was on account of the negligence on the part of the drivers of both the vehicles and accordingly directed the insurer of the both the vehicles to pay compensation in equal proportion.
7. According to the learned counsel for the appellant, the injured claimant was aged about 30 years and she was a tailor by profession earning a sum of Rs.6,000/- per month. She was an in-patient for about 19 days. The salary certificate is produced and marked as Ex.P-10. The tribunal has taken into consideration the said salary certificate, wherein, the salary of the appellant is shown as Rs.2,990/- per month.
The wound certificate, Ex.P-3 discloses that the appellant has sustained the following injuries:
a. Wound over the face on the left side sutured layer by layer.
b. Scalp wound on the left side of the scalp.
c. Incised wound on left breast.
d. Incised wound over the chin.
It is stated that the injuries Nos.1, 3 and 4 are grievous in nature and injury No.2 is simple in nature. However, the appellant has not examined the doctor either to show that she had undergone surgery or she has suffered any permanent disability.
8. Considering the wound certificate and the other material on record, the compensation of Rs.30,000 awarded under the head ‘pain and suffering’ is just and proper. The compensation awarded towards loss of earning during laid up period is enhanced from Rs.2990/- to Rs.6000/-. The compensation awarded towards loss of amenities and future unhappiness is enhanced from 30,000/- to 40,000/-. The tribunal has awarded a sum of Rs.31,376/- towards medical expenses which is as per the prescriptions and medical bills, marked as Exs.P-6 and 7 respectively. The tribunal has not awarded any amount towards conveyance, attendant charges, food and nourishment. Considering that the appellant was an inpatient for a period of 19 days, a sum of Rs.15000/- is awarded under this head. Hence, the appellant is entitled for a total compensation of Rs.1,22,376/- as against Rs.94,366/- awarded by the tribunal. Accordingly, I pass the following order:
i) The appeal is allowed in part.
ii) The judgment and award dated 21.01.2011 passed in MVC No.104/2006, on the file of the Senior Civil Judge & M.A.C.T, at Tarikere is hereby modified.
iii) The appellant is entitled for a total compensation of Rs.1,22,376/- as against Rs.94,366/- awarded by the tribunal with interest @ 6% per annum from the date of petition till the date of deposit.
iv) Respondent Nos.3 and 6 shall deposit the amount in equal proportion within a period of four weeks from the date of receipt of copy of this judgment.
Sd/- JUDGE DS