B. Nagesh vs Umesh Poojary
2021 Latest Caselaw 14 Kant

                          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.

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,

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

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

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

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.

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,

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/-