IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD MFA No.6435 OF 2016 (MV) BETWEEN:
Sri.Madineri Srinivasulu Naidu, S/o. Venkatesh, Aged about 40 years, Residing at No.97/25, 3rd Cross, Vinayaka Layout, RMV 2nd Stage, Nagashettihalli, Bhoopasandra, Bengaluru-560 094. ... Appellant (By Sri.Gopalakrishna.N, Adv.) AND 1. Sri.Srinivasa Naidu, S/o.C.Narayanaswamy Naidu, Major in age, Residing at Sri.Annapurnavari Nilaya, Anjaneya Extension, Chintamani, Chittoor, (A.P), Pin-517 001.
2. The New India Assurance Co. Ltd., Chittoor Branch, 10-1/8-6, Prakasam High Road, Opp. District Court, Chittoor-517 001, Andhra Pradesh, Rep. by its Manager. ... Respondents (By Sri R.Jai Prakash, Adv. for R2, Notice to R1 is D/w) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated: 15.10.2015 passed in MVC No.150/2012 on the file of the Principal Senior Civil Judge & CJM, MACT, Kolar, 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 This appeal is filed by the claimants challenging the judgment and award dated 15.10.2015 passed by the Principal Senior Civil Judge & MACT, at Kolar, in M.V.C. No.150/2012 whereby the Tribunal has granted a compensation of Rs.6,67,544/- with interest at 6% p.a.
2. Brief Facts of the case:
(a) On 31.10.2009 at about 10:15 a.m. claimant was proceeding towards Nakkalagadda village from Madanapalli and when he reached near Amani Vasanthanayakana Kere Tank on his Hero Honda motorbike bearing registration No.AP-03-B-9952, at that time, the driver of the bus bearing registration No. KA-40-6800 6800 came in a rash and negligent manner and dashed against the two wheeler. On account of the accident, the claimant/appellant has sustained grievous injuries and he had been shifted to Rama Orthopedic Nursing Home later shifted to Abhaya Hospital. From there he has been shifted to M.S. Ramaiah Hospital, Bengaluru. After recovering from the injury he has filed MVC No.150/2012 before MACT, Kolar. To establish his case, he has examined four witnesses and marked 386 documents. On the other hand, the Insurance company has neither examined any witnesses nor marked any documents. On appreciation of oral and documentary evidences the Tribunal has granted a compensation of Rs.6,67,544/- with 6% interest. Being aggrieved by the same, the claimant has filed this appeal for enhancement of compensation.
3. Sri. Gopalakrishna N. learned counsel appearing for the appellant has submitted that due to the accident he has suffered serious and grievous injuries and un-dislocated fracture of frontal bone, comminuted fracture of amterig and lateral walls of right maxillary sinus, fracture of lateral wall of right orbit and fracture of right zygomatic bone. All these injuries were grievous in nature. He also examined Dr. V.A.P. Ghorkpade as PW-2 and Dr.Jamuna Rajeswaran as PW-4 who have specifically stated that the patient has difficulty in naming colours of objects, identifying colours and naming shapes, finger agnosia and tactile agnosia (right hand) for present and they have assessed that the injured has sustatined 55% of functional disability. The Tribunal, without considering this aspect of the matter has taken the disability as only 15% which is on lower side. He further contended that in view of the accident, the claimant has suffered severe grievous injuries and the Tribunal has granted lesser compensation under the categories of pain and suffering and loss of amenities. Hence, he sought for enhancement of compensation.
4. Per contra, learned counsel appearing for the Insurance Company has submitted that the Doctor has stated the disability to the extent of 55% to the whole body and the Tribunal has rightly taken the whole body disability as 15%. Under the categories of pain and suffering and loss of amenities are concerned the Tribunal has rightly granted the compensation of Rs.30,000/- each. Hence, he sought for dismissal of the appeal.
5. Heard the learned counsel for both the parties.
6. It is not in dispute that the claimant has suffered grievous injuries due to the accident occurred on 31.10.2009 due to rash and negligent driving of the bus driver bearing registration No.KA-40-6800. Due to the accident he has suffered un-dislocated fracture of frontal bone, comminuted fracture of amterig and lateral walls of right maxillary sinus, fracture of lateral wall of right orbit and fracture of right zygomatic bone and he finds difficulty in naming colours of objects, identifying colours and naming shapes, finger agnosia and tactile agnosia (right hand) for present identifying colours, naming shapes and according to the Doctor he has finger agnosia and tactile agnosia. The claimant has examined Dr.V.A.P.Ghorpade as PW2, Psychiatrist. In his deposition he has stated thus:
“Thereafter he is taking treatment as outpatient continuously in our hospital till date. The patient is regularly attending the hospital and taking treatment for his Psychiatrist condition. And has not shown good response in the areas of family matters, socialization and occupation and has become dependent on others in the above mentioned areas and he required prolonged treatment in future also. The patient was also treated in our hospital on 09.11.2009 as outpatient. Our hospital issued treatment certificates to the patient and also issued medical bills to the patient. He is suffering from post traumatic neurosis and partially recovered and he requires treatment further also.”
Dr.Jamuna Rajeshwari has been examined as PW.4, who in her deposition has stated as under:
“3. The patient also had difficulties in naming colors of objects, identifying colors and naming shapes. Finger agnosia and tactile agnosia (right hand) was present.
4. The Neuropsychological assessment is suggestive of diffuse involvement 55% (Fifty Five) of cognitive disability.
No.of Variables with deficits x 100 = 31 x 100 = 55.3 Total No. of Variables 56 I swear in the name of God that this is my name and signature and contents of this affidavit are true and correct.”
By seeing the evidence of the doctors and other documents produced by the claimant, it is evident that the Tribunal has failed to consider the functional disability of the claimant.
7. In view of the above, this Court is of the opinion that there is a functional disability to the extent of 50%. Accordingly, disability has been taken as 50% and loss of future earning has been calculated as below: 7000x12 = 84000 84000x15x 50 = 6,30,000/-
100 In the categories of pain and suffering and loss of amenities are concerned, due to the accident the claimant has suffered head injury. He has examined the Dr. V.A.P.Ghorpade as PW2, Dr.Jamuna Rajeshwaran as PW4, who have specifically stated that there is a functional disability to the extent of 55%. He has to suffer the disability and unhappiness throughout his life. Therefore, this Court is of the opinion that the claimant/appellant is entitled for 50,000/- each in the categories of pain and suffering and loss of amenities.
8. Accordingly, the appeal is allowed in part.
The judgment and award passed by the Tribunal is modified as follows:
The Insurance Company is directed to deposit the compensation amount along with interest at 6% p.a., within four weeks from the date of receipt of a certified copy of this judgment. The Tribunal is directed to release the amount to the claimant after due verification.
Sd/- JUDGE DS/BVK