1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
M.F.A.No.2664 OF 2013(MV)
BETWEEN:
B.NAGESH,
S/O B.KRISHNAPPA POOJARY,
AGED ABOUT 17 YEARS,
AND 10 MONTHS
R/AT BADAKODI OF KEPU VILLAGE,
POST: NEERKAJE, BANTWAL TALUK,
D.K. DISTRICT,
SINCE MINOR REPRESENTED BY
HIS GUARDIAN- FATHER,
B.KRISHNAPPA POOJARY,
AGED 56 YEARS,
S/O LATE. BABU POOJARY,
R/AT BADAKODI OF KEPU VILLAGE,
POST: NEERKAJE, BANTWAL TALUK,
D.K.DISTRICT PIN-574 219.
... APPELLANT
(BY SRI G.RAVISHNKAR SHASTRY, ADV.)
AND:
1. UMESH POOJARY,
S/O RUKMAYA POOJARY,
AGED ABOUT 50 YEARS,
MANAGER-PUNACHA
VYAYASAYA SEVA SAHAKARI BANK,
2
R/AT PELATHADI HOUSE,
KEPU VILLAGE, BANTWAL TALUK,
D.K. DISTRICT. PIN-574219.
2. ORIENTAL INSURANCE CO. LTD.,
CORPORATE AND REG. OFFICE,
ASAF ALI ROAD, NEW DELHI PIN-110001,
REPRESENTED BY ITS MANAGER.
... RESPONDENTS
(BY SRI. KETHAN KUMAR, ADV. FOR R1:
SMT. HARINI SHIVANAND, ADV. FOR R2)
THIS MFA IS FILED UNDER 173(1) OF MV ACT,
AGAINST THE JUDGMENT AND AWARD DATED: 1.02.2013
PASSED IN MVC NO. 814/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE, & JMFC, MEMBER, MACT, BANTWAL,
D.K., PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCMENT OF
COMPENSATION.
THIS MFA, COMING ON FOR ADMISSION, THROUGH
VIDEO CONFERENCE, THIS DAY, THIS COURT, DELIVERED
THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant challenging the judgment and award dated 01.02.2013 passed by the Senior Civil Judge and MACT, Bantwal, D.K., in MVC No.814/2011 whereby the Tribunal has granted a compensation of Rs.20,000/- with interest at 7.5% p.a. 3
2. The brief facts of the case are that on 20.11.2010 at about 1.15 p.m. claimant was peddling the bicycle from Kallangala School towards his house, when he reached near Guttathadka of Kepu Village, Bantwal Taluk, the rider of the motorcycle bearing registration No.KA-19/R-4919 came at a high speed and in a rash and negligent manner and dashed against the bicycle of the claimant. Due to the said accident claimant sustained grievous injuries. Thereafter claimant has been shifted to Government Hospital, Puttur. He has taken treatment as an inpatient for a period of one day. After recovering from the injuries, he filed a claim petition before the Tribunal in MVC No.814/2011.
3. On service of notice, the respondents appeared through their counsel and filed separate objection statement in which the averments made in the petition were denied. It was pleaded by the respondent No.1 that the petition itself is false and frivolous in the eye of law. The age, nature of injuries sustained by the claimant, 4 period of treatment taken and amount spent by him towards medical expenses and disability are denied. It was further pleaded that the accident was not occurred due to the rash and negligent riding of the motorcycle by its rider without driving licence. It was further pleaded that the offending vehicle was insured with the Insurance Company and the policy was in force as on the date of accident and if the claimant is entitled for any compensation the insurer is liable to pay the said amount. Hence, he prays for dismissal of the claim petition.
It was pleaded by the respondent No.2-Insurance Company that the claimant has sustained injury due to his own negligence while peddling the bicycle. The age of the claimant and he was studying as a student are denied. It was further pleaded that the injuries sustained by the claimant, period of treatment and the amount spent towards medical expenses are denied. It has admitted the issuance of policy in respect of the offending vehicle and it was in force as on the date of accident subject to terms and conditions of the policy. It was further pleaded that 5 the rider of the offending vehicle was not holding valid and effective driving licence as on the date of accident. It was further pleaded that the quantum of compensation and interest claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.
4. To establish his case, claimant examined himself as PW1 and examined Dr.Pradeep Kumar as PW2 and got marked 25 documents as Exs.P1 to P25. On the other hand, the Insurance Company has not examined any witness and they have exhibited 1 document, policy as Ex.R1. On appreciation of the oral and documentary evidence, the Tribunal granted global compensation of Rs.20,000/- with interest at 7.5% p.a. Being not satisfied with the quantum of compensation, claimant has filed this appeal seeking enhancement of compensation.
5. The learned counsel for the appellant has raised the following contentions.
Firstly, due to the accident, the claimant has suffered grievous injuries. He was admitted to Government 6 hospital and subsequently he has been shifted to Mahaveer medical Centre at Puttur. He examined the treated doctor Pradeep Kumar as PW.2, who has deposed that the claimant has suffered 12% permanent disability towards fracture of right radius. He was unable to attend the class for a period of 30 days. He has produced Ex.P4, which shows that there is restriction in the movement of right wrist. The Tribunal is not justified in granting only a meager sum of Rs.20,000/- as global compensation. The Tribunal has failed to grant any compensation under the heads of 'disability' and 'pain and sufferings'. Hence, he sought for enhancement of compensation.
6. Per contra, learned counsel appearing for the insured has raised the following contentions.
Firstly, as per Ex.P2, the claimant has been admitted to Government hospital on 20.11.2010 and discharged on 21.11.2010. As per Ex.P23, the claimant has been admitted to Mahaveer Medical Centre, Puttur on 21.11.2010 and it cannot be possible to take treatment in 7 the Mahaveer Medical Centre on the same day. Therefore, the Tribunal disbelieved the evidence of PW.2 and has rightly granted global compensation of Rs.20,000/-. Hence, he sought for dismissal of the appeal.
7. Heard learned counsel for the parties and perused the records and judgment and award of the claims Tribunal.
8. It is not in dispute that the claimant has suffered grievous injuries in a road traffic accident occurred on 20.11.2010 due to the rash and negligent driving of the motorcycle bearing registration No.KA-19/R-4919. At the time of accident, the claimant was aged about 16 years, was studying in SSLC at Government High School, Guttathadka of Kepu Village, Bantwal Taluk. As per wound certificate-Ex.P2, the claimant has suffered the following injuries:
1. Swelling and tenderness in right wrist and
2. Fracture of right distal radius wrist Separation of epiplysis.
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The claimant has examined Dr. Pradeep Kumar as PW.2. The Tribunal after verifying the documents Ex.P2 and Ex.P23, disbelieved the evidence of the doctor on the ground that as per Ex.P2, the claimant was admitted to the Government hospital on 20.11.2010, he was discharged on 21.11.2010 and he has produced the discharge summary to show that the same day i.e., 20.11.2010 he was admitted in Maahaveer Medical Centre. Taking into consideration the materials available on record, the Tribunal rightly has not considered the evidence of the doctor. As per Ex.P2, wound certificate, the claimant has suffered the above said injuries and he was inpatient for a period of one day i.e., from 20.11.2010 to 21.11.2010 he took treatment at the Government Hospital. Taking into consideration the injuries suffered by the claimant, I am of the opinion that the claimant is entitled global compensation of Rs.50,000/- instead of Rs.20,000/- awarded by the Tribunal.
Since the rider of the motorcycle was not possessing valid and effective driving licence to drive the said vehicle, 9 in view of the law laid down by the Full Bench of this Court in the case of New India Assurance Company Limited, Bijapur -v- Yallavva and Another reported in ILR 2020 Kar. 2239, the Insurance Company is directed to deposit the amount awarded with interest at 7.5% p.a. from the date of petition till the date of payment, within a period of four weeks from the date of receipt of a certified copy of this order, with liberty to recover the same from the insured.
To the aforesaid extent, the judgment of the Claims Tribunal is modified.
The amount in deposit before this Court shall be transferred to the Claims Tribunal.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE Mkm/-