IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2021
PRESENT
THE HON'BLE MRS.JUSTICE S.SUJATHA
AND
THE HON'BLE MR. JUSTICE M.I.ARUN
M.F.A.No.3042/2019 (MV)
BETWEEN :
GOPAL @ RAJAGOPAL
S/O BOREGOWDA,
AGED 34 YEARS,
R/AT CHIKKAMALALI VILLAGE,
BETTADAPURA HOBLI,
PERIYAPATNA TALUK,
MYSURU DISTRICT. ...APPELLANT
(BY SRI SYED ABDUL SABOOR, ADV.)
AND :
1. SURESHA H.C.,
S/O H.A.CHANNABASAPPA
AGED 48 YEARS, R/AT 227,
FANCY STATIONARY MERCHANT
S.J.ROAD, HUNSUR TOWN
MYSURU DISTRICT-571102.
2. UNITED INDIA INSURANCE CO. LTD.,
REP. BY ITS MANAGER
KRISHNAMURTHYPURAM BRANCH
MYSURU-570009. ...RESPONDENTS
(BY SRI Y.K.SHESHAGIRI RAO, ADV. FOR R-2; R-1 SERVED.)
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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF
M.V.ACT AGAINST THE JUDGMENT AND AWARD DATED
29.10.2018 PASSED IN MVC No.327/2016 ON THE FILE OF THE
JUDGE, ADDITIONAL COURT OF SMALL CAUSES AND MACT,
MYSURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and award dated 29.10.2018 passed in MVC No.327/2016 on the file of the Addl. Judge, Small Causes & MACT at Mysuru [Tribunal for short].
2. The claimant instituted the petition under Section 166 of the Motor Vehicles Act, 1988 ('Act' for short) claiming compensation for the injuries sustained by him in the road traffic accident contending that he met with the road traffic accident on 10.11.2015 at 1.30 p.m. while proceeding on his motor bike bearing Reg. No.KA-45-U-8616. It was alleged that the actionable negligence of the driver of the car bearing Reg.No.KA- 01-M-1428 was the cause for the accident. Due to the -3- said impact, the claimant sustained multiple injuries and he was shifted to Brindavan Hospital, Mysore, where he took treatment as an in patient for a period of 10 days. Due to the accident, the claimant has suffered permanent disability. It was contended that the claimant has incurred huge medical expenses.
3. It was averred that the claimant was aged about 30 years at the time of the accident and was working as a mason earning a sum of Rs.15,000/- per month and was maintaining the entire family. Due to the accidental injuries, the claimant is not able to carry out his avocation as earlier. The claimant has suffered mentally, physically as well as financially and has lost his earnings.
4. On these facts and grounds, the claimant sought for compensation.
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5. After service of notice, the respondents appeared through their respective counsel and filed their written statement denying the petition averments.
6. The respondent No.1 has set up a defence that the claimant has driven the vehicle in a rash and negligent manner on the wrong side and dashed to the Maruthi omni car. It was alleged that the claimant was in a drunken state and was not in a position to control the speed of the vehicle. It was contended that the offending vehicle was covered with an insurance policy which was in force on the date of the accident. Hence, liability, if any, has to be satisfied by the insurer.
7. The insurer filed written statement denying the petition averments in toto. The primary defence set up was that no specific endorsement authorizing the driver to drive the specific type of vehicle was found in the driving licence of the driver of the offending vehicle as on the date of the accident.
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8. On the basis of the pleadings, issues were framed and answered as per the reasons recorded in the impugned judgment allowing the petition in part awarding total compensation of Rs.1,50,000/- globally along with interest @ 6% p.a. from the date of petition till its realization fastening the liability on respondent Nos.1 and 2.
9. Being dissatisfied with the quantum of compensation awarded, the claimant has preferred the present appeal.
10. Learned counsel for the appellant-claimant submitted that the nature of injuries sustained by the claimant being grievous, the Tribunal ought to have awarded just and proper compensation, but the compensation of Rs.1,50,000/- awarded globally is meager and the same requires to be enhanced substantially.
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11. Learned counsel for the insurer submitted that there is no scope for further enhancement of the compensation in view of the determination of compensation made by the Tribunal being just and proper. Accordingly, he sought for dismissal of the appeal.
12. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the original records.
13. It is apparent that the insurer has failed to establish that the claimant was under the influence of the alcohol at the time of accident. On the other hand, the police records would point out the negligent act of driving by the driver of the offending vehicle.
14. The material evidence on record would reveal that the claimant took treatment as an in patient at Brindavan Hospital, Mysuru. But no doctor was -7- examined to assess the percentage of disability. In the absence of any disability certificate produced by the claimant, coupled with the non examination of the doctor, the Tribunal considering the gravity of injuries sustained by the claimant, awarded global compensation of Rs.1,50,000/- which includes the compensation towards pain and suffering, medical expenses and loss of income.
15. On re-appreciation of documentary and ocular evidence, we are of the considered view that in the absence of the disability certificate produced by the claimant and the doctor not being examined to assess the disability, this Court has to proceed having regard to the nature of the injuries sustained by the claimant. Considering the nature of injures suffered by the claimant as per the medical records, we deem it appropriate to award a total sum of Rs.2,00,000/- with -8- interest @ 6% p.a. from the date of the petition till its realization.
16. For the aforesaid reasons, the total compensation awarded by the Tribunal is modified and enhanced to Rs.2,00,000/- as against Rs.1,50,000/- with interest @ 6% p.a. from the date of petition till its realization.
Hence, the following:
ORDER
i) The appeal is allowed in part.
ii) The total compensation awarded by the Tribunal is modified and enhanced to Rs.2,00,000/- (Rupees Two lakhs only) globally as against Rs.1,50,000/- which shall carry interest at the rate of 6% per annum from the date of the claim petition till its realization.
iii) The portion of the order of the Tribunal inasmuch as liability and disbursement remains intact. -9-
iv) The insurance company shall deposit the amount determined as aforesaid before the Tribunal within 90 days from the date of receipt of the certified copy of the judgment and order.
v) The modified compensation amount shall be disbursed in terms of the order of the Tribunal.
vi) Draw modified award accordingly.
Sd/-
JUDGE Sd/-
JUDGE Dvr: