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. 6351 OF 2016 (MV) BETWEEN SMT. RATHNAMMA W/O. MUNIVENKATASWAMAPPA AGED ABOUT 51 YEARS R/AT NO.90, GANGAVARA VILLAGE DEVANAHALLI TALUK BANGALORE RURAL DISTRICT BANGALORE-29. ... APPELLANT (BY SRI. H. M. GIRISHA - ADVOCATE) AND 1. SRI. CHANDRA S/O MUNIVENKATASWAMAPPA AGED ABOUT 36 YERS R/AT, GANGAVARA VILLAGE DEVANAHALLI TALUK BANGALORE RURAL DISTRICT BANGALORE – 29 (INSURED OF CAR BEARING NO.KA-43-M5914).
2. NEW INDIA ASSURANCE CO., LTD MOTER THIRD PARTY CLAIMS HUB NO.9/2 MAHALAKSHMI CHAMBERS M.G. ROAD BANGALORE-560001. ... RESPONDENTS (BY SRI. C.R. RAVISHANKAR – ADVOCATE FOR R-2; R-1 SERVED.) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDMENT AND AWARD DATED 8.6.2016 PASSED IN MVC NO. 343/2014 ON THE FILE OF THE 7TH ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU 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 - claimant and the learned counsel for the Insurance Company - Respondent no.2 and perused the records. Respondent No.1 has been served.
2. The injured-claimant has preferred this appeal, being not satisfied with the quantum of compensation awarded by the Tribunal in its impugned judgment dated 08.06.2016 in MVC No.343/2014, seeking enhancement of compensation.
3. The factual matrix is that on 27.06.2014 at about 5.30 a.m., when the appellant was proceeding as an occupant in a car bearing No.KA-43-M-5914 on Budigere Road and when they reached near Shrungarapura Gate, the driver who was driving in a rash and negligent manner in high speed, had dashed against a two-wheeler and also dashed against a lorry bearing No.KA-41-3978 and caused the accident. The appellant who was an inmate of the car sustained grievous injuries and was treated in KIMS hospital as an inpatient and had incurred expenses. Hence, she filed a claim petition before the Tribunal seeking compensation.
4. After service of notice, the owner of the offending vehicle – Respondent No.1 did not appear and was placed exparte. However, the Insurer – Respondent No.2 appeared before the tribunal and filed its written statement and contested the claim petition. 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.
5. 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 vehicle and consequently awarded total compensation of Rs.2,19,400/- with interest at 8% per annum from the date of petition till the date of realization.
6. The learned counsel for the appellant - claimant vehemently contended that it is evident from the Wound Certificate at Exhibit P11, medical certificates and X- rays that the appellant had sustained fracture of distal end of radius, communited fracture of D9, D10 and D11, tenderness over dorso-lumbar spine and tenderness and swelling over left wrist. She had undergone major surgery of fixing plate and screw to left distal end of radius as an in-patient and thereafter for several months as an out-patient. Thus, it is clear that she had suffered grievous injuries.
The learned counsel contends that the appellant was self-employed and was preparing condiments and selling the same to nearby bakeries and was earning more than Rs.10,000/- per month. Moreover, the Doctor had assessed her functional disability at 32.86% but however the Tribunal had considered only 11% as the functional disability and had granted the compensation. The Tribunal without taking into consideration the said aspect, has awarded very meagre compensation under all the heads, especially under ‘Loss of future income due to permanent disability’.
It is the further contention of the learned counsel that in respect of the same accident in the connected appeal in MFA No.6352/2016, wherein the said appellant who was riding a motor cycle was hit by the very same offending car, the said matter was settled in the Lok Adalath and the compensation was enhanced by Rs.1,35,000/- in the said appeal. The learned counsel contends that applying the same analogy, the present appeal may also be partly allowed granting enhancement of compensation in a similar amount.
7. On all these grounds, the learned counsel contends that the compensation may be suitably enhanced by this court, having regard to the nature of injuries suffered by the appellant.
8. Per contra, the learned counsel appearing for the insurer submitted that the tribunal, on appreciation of the evidence and material on record has rightly assessed the income of the injured and awarded just and fair compensation, which does not call for interference and prays for dismissal of the appeal.
9. On careful evaluation of the material on record, and having regard to the fact that the connected appeal in MFA No.6352/2016 has been settled in Lok Adalath enhancing the compensation by an additional sum of Rs.1,35,000, since this appeal also arises out of the same accident and had suffered grievous injuries in the accident, I find that it would be just and proper to allow this appeal as well granting a global compensation suitably.
10. In view of the reasons stated supra, 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 08.06.2016 passed by the Tribunal in MVC No.343/2014, the claimant is hereby granted a global compensation of Rs.1,10,000/- in addition to Rs.2,19,400/- granted by the Tribunal. However, the said amount of Rs.1,10,000/- shall not carry any interest. The second respondent-insurer shall deposit the global compensation in addition to the compensation already awarded, 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, in terms of the award, on proper identification. The amounts already deposited shall be adjusted. However, the impugned judgment and award, in so far as it relates to the rate of interest and deposit is concerned, shall remain unaltered.
There shall be no order as to the costs. Office to draw the decree accordingly.
SD/- JUDGE KS