IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO M.F.A.No.6365/2009 (MV) BETWEEN:
SRI LAKSHMANA GOWDA B N S/O NAMADASE GOWDA AGED ABOUT 25 YEARS R/O No.78/1, 5TH CROSS SOLLAPURADAMMA LAYOUT NEAR SHARADA VIDYANIKETHAN SCHOOL, SUNKADAKATTE, BANGALORE.
(BY SRI M GIRISH, ADVOCATE – ABSENT) AND:
1. RAJANNA H G S/O GANGANNA AGED ABOUT 33 YEARS R/O No.23, 5TH CROSS RAJIV GANDHINAGAR NEAR, SUNKADAKATTE, BANGALORE.
2. THE ORIENTAL INSURANCE CO. LTD, D.O.4, No.49, JYOTHIMAHAL ST.MARK’S ROAD BANGALORE.
…APPELLANT ...RESPONDENTS (BY SRI K POORNABODHA RAO, ADVOCATE FOR R2 NOTICE TO R-1 IS D/W V/O DTD.9/4/10) THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:1.4.2009 PASSED IN MVC No.914/2008 ON THE FILE OF THE JUDGE & MEMBER, MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The learned counsel for the appellant absent. No representation. The matter is of the year 2009 against the order dated 1.4.2009, in terms of the claim petition of the year 2008, finally in terms of the accident, it is of the year 2007. The matter is listed for Final Hearing and it was notified well in advance. It is not just and proper to adjourn the matter because of the absence of the learned counsel for the appellant. The same is placed on record. Hence, I proceed to hear the learned counsel for Insurance company/ respondent No.2 Sri.
K. Poornabodha Rao.
2. This appeal is preferred by the claimant seeking enhancement of compensation against the judgment and award dated 1.4.2009 passed in MVC No.914/2008 by the Judge and Member, MACT, Bangalore, wherein, the claim petition filed by the claimant came to be allowed in part and an amount of Rs.2,36,812/- was awarded together with interest at the rate of 8% p.a. from the date of petition till its deposit.
3. In order to avoid confusion and overlapping, parties hereinafter are referred to with reference to their rankings as it stood before the Tribunal.
4. The incident that gave rise to the initiation of the proceedings is that, on 22.12.2007 at about 7.30 p.m., petitioner was proceeding on Bangalore-Magadi Main Road towards Gangappanahalli bus stop and while proceeding near Gangappanahalli Bridge, Bangalore South Taluk, the rider of motor cycle bearing Registration No.KA.02.EL.2626 came from behind with high speed in a rash and negligent manner and dashed against him. Because of which, he sustained grievous injuries including the multiple cranial fracture, fracture of C7 and D1 right transverse process and vertebral hemotoma. Further, he also sustained contusion injury over the right brachial plexia, right hemiplegia and injuries over right leg, left temporal region. He took treatment at Panacea hospital, wherein, he took treatment, underwent surgeries and spent amount for medical treatment and claimed compensation of Rs.15,00,000/-.
5. Second respondent–Insurance Company resisted the claim of the petitioner and first respondent remained absent and set exparte.
6. The learned Member of the Tribunal was accommodated with the oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to P15.
7. The learned Member after hearing the parties considered the case on the basis of the oral and documentary evidence and other materials available on record and partly allowed the petition and granted the compensation as stated above.
8. The learned counsel Sri. Poornaboda Rao, for Insurance Company would submit that there was no occasion for the tribunal for granting compensation of Rs.2,36,812/- as there was no specific disability in the evidence of the Doctor and the Doctor who was examined in the court is not the one who has treated the claimant. Further the injuries are blown out of proportionate and specific percentage of disability is not pleaded.
9. On perusal of the records, I find that accident dated 22.12.2007 is not disputed nor the subscription to the policy. The bone of contention is regarding liability.
The break up of compensation awarded by the Tribunal is as under.
Pain, injuries and suffering Rs. 50,000/-
Medical and incidental Expenses Loss of earnings during laid of period.
Rs.1,06,812/-
10,000/- Rs. 10,000/-
Permanent disability Rs. 40,000/-
Loss of amenities in future life Rs. 20,000/-
Total Rs.2,36,812/-
10. Though the injuries including the fractures are highlighted and brought to the notice of the tribunal. The learned member considering the nature of Injuries sustained by the claimant awarded the Medical expenses of Rs.1,06,812/- against the bills, and Rs.10,000/- towards incidental expenses. The Tribunal has awarded Rs.50,000/-, Rs.10,000/-, Rs.40,000/- and Rs.20,000/- towards pain, injuries and sufferings, loss of earnings during laid up period, permanent disability and loss of amenities in future life. The necessity of enhancement of compensation on the basis of the grounds urged and no credible materials are placed before this court. Therefore, I do not find that there is a scope or reason for enhancement of compensation. Hence, the appeal filed by the claimant is devoid of merits and accordingly, it is rejected.
11. However, insofar as rate of interest awarded at 8% p.a. from the date of petition till its deposit is concerned, it is on the higher side and is reduced to 6% p.a. from the date of the petition till its deposit and the impugned judgment and award is modified to that extent.
tsn* Sd/- JUDGE