The Divisional Manager vs Kumari Sahana
2021 Latest Caselaw 5907 Kant

                               1


      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 10TH DAY OF DECEMBER, 2021
                            BEFORE
     THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
               M.F.A. NO.7459 OF 2017 (MV-INJ)
BETWEEN:

THE DIVISIONAL MANAGER
THE ORIENTAL INSURANCE CO. LTD.,
UDUPI DIVISIONAL OFFICE, UDUPI
NOW REPRESENTED BY ITS
REGIONAL MANAGER
REGIONAL OFFICE, 2ND FLOOR
SUMANGALA COMPLEX
LAMINGTON ROAD
HUBLI-580 020
                                                 ...APPELLANT
(BY SMT. HARINI SHIVANANDA, ADVOCATE)

AND:

1.    KUMARI SAHANA
      AGED ABOUT 12 YEARS
      REP. BY HER MOTHER AND NATURAL
      GUARDIAN SMT. SUMATHI H. SUVARNA
      AGED ABOUT 45 YEARS
      R/AT SAHANA HOUSE
      BRAHMARI, LEMINA CROSS
      NITTE VILLAGE, KARKALA TALUK

2.    SRI. AVINASH
      S/O SRI. VENKATARAMA UPADYAYA
      AGED ABOUT 22 YEARS
      R/AT DEVASYA HOUSE
      NEAR VISHNUMOORTHY TEMPLE
      NITTE VILLAGE, KARKALA TALUK
                                             ... RESPONDENTS
(BY SRI. NAGESH V. PAI, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED AND UNREPRESENTED)
                                     2


     THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST
THE JUDGMENT AND AWARD DATED 24.06.2017 PASSED IN MVC
NO.47/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE & ADDL. MACT,
KARKALA, AWARDING COMPENSATION OF RS.3,52,180/- WITH INTEREST
AT 8% P.A. FROM THE DATE OF PETITION TILL THE DATE OF
REALIZATION FROM THE RESPONDENTS.

     THIS MFA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
                              JUDGMENT

1. The captioned appeal is filed by the Insurance Company

questioning the quantum.

2. The 1st respondent-claimant who is a minor child filed a

claim petition through her natural guardian for having

sustained grievous injuries in a road traffic accident dated

19.03.2016.

3. The 1st respondent-claimant sustained fracture of left

femur. Hence, by contending that she has suffered permanent

disability filed a claim petition claiming compensation. The 1st

respondent - claimant in support of her contention examined

her natural guardian mother as PW-1 and examined one

witness as PW-2 and adduced documentary evidence vide

Exs.P1 to P28. The appellant - Insurance Company did not

chose to lead any ocular evidence and produced a copy of the

insurance policy vide Ex.R1 and also case sheet at Ex.C1. The

Tribunal having assessed oral and documentary evidence

awarded a sum of Rs.40,000/- towards pain and agony,

Rs.50,000/- towards loss of amenities, Rs.15,000/- towards

nourishment and attendant charges, Rs.42,180/- towards

medical expenses, .Rs.10,000/- towards conveyance,

Rs.45,000/- to the parents towards loss of income during laid

up treatment and Rs.1,50,000/- towards inconvenience. The

Tribunal in all awarded Rs.3,52.180/-.

4. Smt.Harini Shivananda, learned counsel appearing for

the appellant reiterating the grounds urged in the appeal

memo would vehemently argued and contend before this

Court that the Tribunal has virtually awarded a higher

compensation on all the heads. She would further contend

that the Tribunal has not assigned any reasons while awarding

a sum of Rs.1,50,000/- towards inconvenience. She would

submit to this Court that the award of Rs.1,50,000/- towards

inconvenience is without any basis and the same is contrary to

the principles laid by the Apex Court Master Mallikarjun vs.

Divisional Manager, National Insurance Company

Limited [(2014) 14 SCC 396]. She would also further

submit to this Court that in regard to the disability, the 1st

respondent-claimant has not produced any medical evidence

and no doctor is examined. Therefore, she would submit to

this Court that the compensation, more particularly, under the

head of inconvenience to the tune of Rs.1,50,000/- is

erroneous and therefore, warrants interference in the hands of

this Court.

5. Per contra, Ms.Deepti, learned counsel appearing on

behalf of Sri.Dhananjay Kumar, learned counsel for the 1st

respondent-claimant would vehemently argue and contend

that the compensation determined by the Tribunal is fair and

just and may not warrant any interference at the hands of this

Court. She would submit to this Court that a minor girl hardly

aged 12 years has sustained grievous injury. Therefore, the

Tribunal having taken note of these material aspects has

rightly awarded fair compensation and therefore, would

request this Court to dismiss the appeal.

6. Heard the learned counsel for the appellant and the

learned counsel for the respondent and perused the records.

7. On re-appreciation of oral and documentary evidence, I

would find some force in the submission made by the learned

counsel appearing for the appellant-Insurance Company

insofar as compensation awarded towards inconvenience. The

Tribunal while awarding compensation of Rs.1,50,000/-

towards inconvenience has not assigned any reasons.

Therefore, I am of the view that the finding and consequent

award of Rs.1,50,000/- under the head of inconvenience

appears to be erroneous and therefore, would warrant

interference at the hands of this Court. It is contended by the

counsel for the 1st respondent - claimant that the claimant has

suffered fracture of right femur. If that is so, then it was

incumbent on the part of the 1st respondent - claimant to

examine the doctor who has issued the disability certificate.

Even in the disability certificate, it is found that the doctor has

opined that the respondent-claimant has suffered disability to

an extent of 3%. Therefore, having regard to the age of the

1st respondent-claimant, who is hardly aged 12 years as on

the date of the accident, would, in all probability, have

recovered from the said fracture and therefore, there is every

possibility that the claimant had not incurred any permanent

disability and this view is further strengthen on the ground

that the 1st respondent - claimant has not chosen to examine

the doctor in support of her claim, that on account of fracture

she has suffered permanent disability. However, she relies on

the disability certificate, which indicates that she has suffered

only 3% disability. Then, in the light of principles laid down in

the case of Mallikarjun supra, no compensation can be

awarded towards disability. I am of the view that the

compensation awarded under other heads in fact appears to

be on the higher side which would compensate, if the

compensation paid under head of inconvenience is denied by

this Court.

8. Therefore, the appeal filed by the Insurance Company is

allowed in part by setting aside the compensation paid under

the head of inconvenience to the tune of Rs.1,50,000/-.

Therefore, the claimant is entitled for compensation of

Rs.3,52,180 - Rs.1,50,000 = Rs.2,02,180/-. The same shall

carry interest @ 6% p.a. The amount in deposit shall be

remitted to the Tribunal.

Sd/-

JUDGE

Prs*