Karnataka High Court
Sri Hemantkumar S/O Srikanth Tiwari vs Sri Rajiv Manohar Girli on 11 December, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 11th day of December, 2012
Before
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
Miscellaneous First Appeal Nos. 20243/2008 C/w
20242/2008
M.F.A No.20243/2008
BETWEEN:
Sri.Viloknandan
S/o Maheshprasad Sharma
Aged about 25 years
Occ: Student now nill
Permanent resident of
Hamidganj, Hospital Road
Post: Daltongani
Dist: Palamou,
State: Jarkhand
Now residing at Room No.6
Kamat Building
680/24/2, 1st stage
Ranichennamma Nagar
Belgaum. ...Appellant
(By Smt.Hemalekha K.S, Advocate & Sri.R.M.Kulkarni,
Advocate)
A N D:
1. Sri Rajiv Manohar Girli
:2:
Age: Major
Occ: Business
R/o. Plot No.5
R.S.No.49, Shahunagar
B.K.Kangrali Road
Belgaum
(Owner of Fiat Car No.MEL-3469)
2. The Divisional Manager
The New India Assurance Co. Ltd.,
Divisional Office, Club Road,
Belgaum.
(Insurance of vehicle No.MEL-3469)
...Respondents
(By Sri.Vijay Kumar, Advocate for
M/s Sri.Ravi.G. Sabhahit, Advocates for R2
Notice to R1 dispensed with vide Court order
dated 11.10.2012)
This miscellaneous first appeal is filed under
Section 173(1) of the Motor Vehicles Act against the
judgment and award dated 8/1/2008 passed in MVC
No.208/04 on the file of the Fast Tract Court II & Addl.
Motor Accident Claim Tribunal, Belgaum allowing the
claim petition for compensation and seeking
enhancement of compensation.
M.F.A.No. 20242/2008
BETWEEN:
Sri.Hemantkumar
S/o. Srikanth Tiwari,
Aged about 25 years
Occ: Student, Now Nill
:3:
Permanent resident of quarter
No.3/E, 427, post Bokaro Steel
City plant
State: Jarkhand
Now residing Kamat Building
680/2A, 1st stage
Ranichennamma nagar
Belgaum. ...Appellant
(By Smt.Hemalekha K.S, Advocate & Sri.R.M.Kulkarni,
Advocate)
A N D:
1. Sri Rajiv Manohar Girli
Age: Major
Occ: Business
R/o. Plot No.5
R.S.No.49, Shahunagar
B.K.Kangrali Road
Belgaum
(Owner of Fiat Car No.MEL-3469)
2. The Divisional Manager
The New India Assurance Co. Ltd.,
Divisional Office, Club Road,
Belgaum.
(Insurance of vehicle No.MEL-3469)
...Respondents
(By Sri.Ravindra R.Mane, Advocate for R2
Notice to R1 is dispensed with vide court order
dated 24/9/2012)
This MFA is filed under Section 173(1) of MV Act
against the judgment and award dated 8.1.2008 passed
in MVC No.273/2004 on the file of the presiding officer,
:4:
Fast Tract Court-II and member, Addl. MACT, Belgaum,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
These appeals are coming on for admission this
day, the Court delivered the following:
JUDGMENT
These two appeals are filed by claimants seeking enhancement of compensation not being satisfied with the amount awarded by Fast Track II and Additional MACT, Belgaum dated 08.01.2008 in MVC Nos.208/2004 and 273/2004 whereunder claim petitions came to be allowed in part.
2 Heard Smt Hemalekha K. S, learned Advocate appearing for claimants and Sri Vijay Kumar, learned Advocate appearing on behalf of Sri Ravi G Sabhahit for respondent No.2 in MFA No.20243/2008 and Sri Ravindra R Mane, learned Advocate appearing on behalf of respondent No.2 in MFA No.20242/2008. Notice to :5: respondent No.1 in both appeals has been dispensed with by Order dated 1-10-2012.
3 Though appeals are listed for admission, by consent of learned Advocates appearing for both parties, they are taken up for final disposal by taking into consideration that these appeals are of the year 2008 and the accident is of the year 2003.
4 Parties are referred to as per their rank before Tribunal.
5 Appellants herein filed two claim petitions in MVC No.208/2004 (hereinafter referred to as 'first claimant') and MVC No.273/2004 (hereinafter referred to as 'second claimant') seeking for compensation of Rs.20 lakhs each against respondents interalia contending that on 15.09.2003 at about 08.15 p.m. claimants were proceeding on a motor cycle bearing No.AIO-276 towards Raj Purohit Dhaba and a car bearing No. MEL :6: 3469 came in a rash and negligent manner and while attempting to over take the motor cycle of claimants, it caused the accident; due to impact, claimants fell down, became unconscious and sustained grievous injuries and as such they claimed compensation. They also contended that claimants parents are from Jharkhand State and they have come down to Belgaum and they are taking care of them and as such on these grounds among others as raised in the claim petitions, they sought for grant of compensation. Insurance Company filed its statement of objections and denied the claim averments. On the basis of the pleadings of parties, Tribunal framed issues for adjudication. 6 Both claimants got themselves examined as P.Ws.1 and 3 and examined two Doctors P.Ws.2 and 4 and produced in all 58 documents and got them marked as Exs.P-1 to P-58. No witnesses were examined on behalf of Insurance company and copy of insurance :7: policy issued to the offending vehicle was got produced and exhibited as Ex.R-1. On appreciation of oral and documentary evidence, Tribunal, by its judgment and award dated 08.01.2008 allowed both claim petitions in part and awarded a sum of Rs.3,16,713/- and Rs.3,49,673/- to first and second claimants respectively with costs and future interest at 6% p.a. from the date of petition till date of payment. It is this judgment and awards which are assailed in the present appeals by the claimants contending that compensation awarded by Tribunal is on the lower side and seeking enhancement. 7 It is the contention of the learned Advocate appearing for claimants that Tribunal has not properly appreciated oral and documentary evidence produced and oral evidence tendered by P.W.2 - Doctor who has opined that disability to the first claimant was to the extent of 50% of the lower limb and as such, compensation awarded is abysmally on the lower side. :8: She would also contend that Tribunal having noticed that first claimant has suffered fracture of pelvic bone with urethra bladder rupture, fracture of shaft femur as evidenced from Ex.P-34 - disability certificate, Tribunal erred in awarding very low compensation towards these injuries sustained and consequential disability suffered. She also contends that Tribunal failed to take into consideration the fact that first claimant was suffering from permanent disability to an extent of 50% to the lower limb and as such she seeks for enhancement of compensation.
8 She would also submit that Tribunal having noticed that medical bills for Rs.1,87,408/- as per Exs.P-21 and P-22 were produced and also medical bills 79 in numbers which came to be collectively marked as Ex.P-23, the sum total of which is Rs.88,452/- has not been taken into consideration while awarding compensation and as such, she submits that there is :9: total non application of mind while assessing the compensation payable under different heads by the Tribunal and as such, she submits that compensation be awarded as prayed for by re-appreciating the evidence and accepting the contention raised by first claimant. She would also state that in view of injuries sustained particularly to the urine bladder and urethra by first claimant, chances of impotency being suffered by claimant looms large and as such, suitable compensation be awarded for loss of marriage prospects. It is on these grounds, she seeks for enhancement of compensation insofar as first claimant is concerned.
9 Smt.Hemalekha, learned Advocate appearing for second claimant would also submit that compensation awarded by the Tribunal insofar as second claimant is concerned is also abysmally on the lower side and Tribunal has committed a serious error in awarding : 10 : only Rs.20,000/- for fracture of both hips and for the fracture of left ankle and right tibia, left femur compensation of Rs.20,000/- and Rs.40,000/- awarded is on the lower side and same requires to be enhanced. She would also submit that towards future medical expenses, additional compensation requires to be awarded and she prays for awarding additional compensation of Rs.35,000/- towards future medical expenses and seeks for enhancement of compensation towards food, nourishment, conveyance and transportation charges. Taking into consideration that second claimant was hospitalized for a period of 58 days, she would also submit that handicap certificate produced by claimant as per Ex.P-15 came to be issued and same has not been properly appreciated by the Tribunal and as such, loss of amenities of Rs.25,000/- awarded by Tribunal is on the lower side and contends same requires to be enhanced. She would also submit that on account of injuries sustained to right side back : 11 : bone, second claimant is not in a position to sit and thus, loss of future prospects as well as loss of marriage prospects had to be taken into consideration by the Tribunal and compensation should have been awarded. She further submits that Tribunal has not taken into consideration the fee paid towards tuition for the academic year by particularly taking into consideration Exs.P-42 and P-46 and as such, she seeks for award of compensation towards same and enhancement of compensation under all heads.
10 Per contra, learned Advocates appearing for Insurance Company would vehemently contended that what has been awarded by the Tribunal itself is sufficient and same is in consonance with injuries sustained and consequential disability suffered and as such he contends that there is no need or necessity to enhance the compensation. It is also contended by them that treating Doctors have not been examined as : 12 : such no credence can be given by Medical Evidence. They would contend that P.W.2 is a doctor who regularly tenders evidence in Motor accident cases which would be contrary to medical records and he being non signatory to any of medical records produced, his evidence cannot be eschewed and same is liable to be rejected. They would also contend that evidence of P.W.4 relating to treatment given to first claimant is concerned cannot be taken into consideration because he is a General Surgeon and not an Urologist. In conclusion, they would contend that compensation awarded is commensurate with the disability suffered, amounts expended and nothing else requires to be awarded and as such, they pray for dismissal of the appeals.
11 Having heard the learned Advocate appearing for the parties, I am of the considered view that following points would arise for my consideration. : 13 :
1. Whether judgment and awards passed by Tribunal in MVC No.208/2004 and 273/2004 by Fast Track II and Additional MACT, Belgaum dated 08.01.2008 requires to be affirmed or modified?
2. If so, what order?
12 Before proceeding to delve upon rival contentions raised by learned Advocates, facts in brief requires to be crystallized and they are as follows:-
Both the claimants on 15.09.2003 at about 8.15 p.m. were proceeding in a motor cycle along with other friends to Raj Purohit Dhaba for dinner and at that point of time, a car bearing No.MEL 2469 is stated to have come in a rash and negligent manner without following traffic Rules and while attempting to over take the motorcycle of the claimant, dashed against the claimants resulting in both claimants falling down and sustaining grievous injuries all over the body and they were shifted to KLE Hospital, Belgaum on account of : 14 : which claimants sought for payment of compensation of Rs.20 lakhs each.
Compensation awarded under various heads in both the claim petitions are as under:
MVC No. 208/2004 (first claimant)
- Sri Viloknandan 1 Fracture of right side femur Rs.20,000/- 2 Fracture of Acetabulam Rs.25,000/- 3 Fracture of Pelvis and rupture of bladder Rs.50,000/- 4 Fracture of Acetabulam with sacrum Rs.25,000/- 5 Food, nourishment, attendant charges Rs.14,000/- 6 Loss to education for one year Rs.25,000/- 7 Future medical expenses Rs.25,000/- 8 Loss of amenities Rs.25,000/-
Total Rs.2,09,000/-
: 15 :
As seen from the judgment and award, total
compensation awarded as reflected in paragraph 36 and operative portion insofar as first claimant is concerned, is Rs.3,16,713/- . Thus, there is a difference of Rs.1,07,713/- (Rs.3,16,713/- (-) Rs.2,09,000/-). This difference is not explained in the judgment and award.
During the course of impugned judgment herein below, same has been discussed.
13 Insofar as second claimant is concerned, compensation that has been awarded by Tribunal under different heads are enumerated herein below:
MVC No.273/2004 (second claimant ) -
HemantKumar 1 Pain and Agony Rs.20,000/-
2 Fracture of left ankle Rs.20,000/- 3 Fracture of left femur Rs.15,000/- : 16 : 4 Comminuted fracture of right tibia Rs.25,000/- 5 Medical bills Rs.1,72,673/-
6 Future medical expenses Rs.35,000/- 7 Loss to one year study Rs.25,000/- 8 Loss of amenities Rs.25,000/- 9 Food, nourishment, conveyance, Rs.12,000/-
etc. Total Rs.3,49,673/-
Point No.(1) formulated herein above is required to be answered by holding that compensation awarded by Tribunal is abysmally on the lower side, not in consonance with injuries sustained and consequential disability suffered and same being contrary to material evidence available on record, as such same requires to be enhanced for the following reasons:- : 17 :
Re: MFA No.20243/2008 (MVC No.208/2004) - first claimant - Vilokananda
14 First claimant herein after the accident was shifted to KLE hospital and was hospitalized at the said hospital from 15.09.2003 to 10.11.2003 and from 16.12.2003 to 26.12.2003 in the second spell. Undisputedly as per the summary sheet produced at Ex.P-15 - wound certificate relating to first claimant has been produced and marked as Ex.P-7. Undisputedly first claimant has sustained following injuries:
1. Fracture of bilateral acetabhlum;
2. Fracture of shaft of femur right side;
3. Fracture of right side sacrum;
4. Urine bladder was ruptured.
On account of these injuries sustained and for taking treatment to said injuries as observed herein above, claimant was in hospital initially for 57 days and again : 18 : was in hospital for 10 days namely in all total 67 days. Summary sheet as per Ex.P-17 would also disclose that during first spell, claimant was an inpatient at the above said hospital from 15.09.2003 till discharge on 10.11.2003. There is shortening of leg by 2 inches as opined by the Doctor. On account of rupture of urine bladder, Doctor has opined that first claimant may develop impotency. Disability certificate produced as per Ex.P-15 issued by the Medical Board which certifies the persons with disability, reflects that claimant is having 50% permanent (physically impairment) in relation to the injuries sustained. First claimant had also sustained grade -I fracture of pelvis with rupture bladder and was surgically operated upon and was treated at KLE hospital itself by the Doctors at Department of Urology who have issued the certificate as per Ex.P-16 and it was stated that 'Urethroplasty' was conducted on the first claimant on 18.12.2003 under spinal anesthesia. Discharge summary sheet : 19 : would also disclose that first claimant was an inpatient from 16.12.2003 to 26.12.2003 in the second spell for said operation. It has been opined by doctors as reflected in the summary sheet that all movements of right lower limb are painful and restricted. Photographs produced at Exs.P-18 to 20 would reflect that on account of rupture of urethra claimant has been operated upon and he has been put on catheter. 15 Doctor Satish who has been working as consulting Orthopedic Surgeon, on clinical and radiological examination of the first claimant has opined that on account of the injuries sustained by first claimant measurement of right leg is reduced. It is stated that there is shortening by two inches. Admittedly on account of fracture of right thigh, first claimant was operated upon. P.W.2 has stated that first claimant is unable to walk long distances and he would not be able to squat, would not be able to sit cross : 20 : legged and walk on sloppy surface, he would find it difficult to lift weights and doing laborious work has been ruled out and has assessed permanent physical disability to the right lower limb at 50%. Though it is contended that he is a stooge witness who normally tenders evidence in respect of road traffic accident and his evidence cannot be eschewed, I am unable to agree insofar as present case is concerned for the simple reason that said Dr.Satish P.W.2 has spoken to with reference to medical records available which was also produced by first claimant before the said Doctor at the time of evaluation of disability. Cross examination dated 12.04.2006 does not discredit evidence of P.W.2 or acceptance of his evidence being doubtful. Such is not the case. As such, contention of learned Advocate appearing for Insurance Company raised in this regard requires to be rejected and it is accordingly rejected. : 21 : 16 First claimant has also examined one Doctor Suresh Karlatti as P.W.4 who was working as Sr.Specialist in District Hospital, Belgaum. He has certified the contents of medical records issued by KLE Hospital and the nature of treatment obtained by first claimant to be true and correct and in consonance with the injuries sustained. After perusing the medical records produced by first claimant and also on clinical examination of first claimant, P.W.4 has opined that he is suffering from repeated attacks of Urinary Track infection and stricture urethra and has found on radiological examination that there is "gross narrowing of membranous urethra" which is suggestive of stricture and post traumatic diverticula is seen and has assessed permanent disability to an extent of 35% to the whole body. It is no doubt true that he is not the Urologist. But his evidence cannot be brushed aside because he was a Senior Surgeon at the undisputed point of time discharging his duties in the District Hospital, Belgaum. : 22 : He has assessed disability of first Claimant at 35% to the whole body by issuing certificate as per Ex.P-54. Tenor of cross examination itself would clearly establish that his evidence is to be accepted as sacrosanct and not to be discarded inasmuch as he has stated that insofar as disability of urethra is concerned, it cannot be on the basis of any laid down norms and it varies from case to case and patient to patient. In view of the fact that Insurance company has not examined any Doctor either to prove that contents of medical records produced by claimant is incorrect or disability certified by Doctors P.Ws.2 and 4 is not in consonance with actual disability sustained by first claimant and no material whatsoever was placed their evidence is hereby accepted. Even cross examination conducted of these two Doctors would not discredit their statement or it does not merit rejection. In that view of the matter, evidence given by these two doctors is to be accepted and compensation requires to be re-computed in view of : 23 : the fact that first claimant being of a tender age of 20 years (as on the date of accident) who was pursuing his educational career in Engineering at the time of accident has sustained grievous injuries to all the vital parts of body resulting in permanent physical disability marring his future in entirety.
17 Even Tribunal has opined that fracture of acetabulam, fracture of right sacrum with bladder rupture and stricture in urethra are major injuries sustained by first claimant. Having noticed that first claimant has suffered more than six fractures and urethra narrowing down, has awarded towards fractures and surgical operations conducted the compensation as enumerated in the tabular column herein above which is abysmally on the lower side. 18 First claimant was an inpatient for more than 57 days as per Ex.P.17. He would not be able to discharge : 24 : his normal duties as was being done by him prior accident. He has been surgically operated upon on more than four occasions. On account of surgeries conducted and repeated hospitalization and advised rest, he has lost two semesters or one year of his educational career which evidence has remained unshaken. Disability certificate - Ex.P-15 issued by the Chairman of Medical Board which is headed by panel of Doctors would also establish the fact that disability to whole body is to the extent of 50% to first claimant. There is shortening of leg by two inches. In fact, Doctor has opined that he would not be able to sit cross legged or stand with gait in proper form even for a little longer period than the normal. Thus, additional compensation also requires to be awarded.
19 It is also to be noticed that first claimant produced Exs.P-21 and P-22 namely, medical bills the sum total of which is Rs.1,87,408/- relating to surgery conducted : 25 : on the first claimant by use of spinal anesthesia. Insofar as medicines purchased by first claimant, medical bills were produced as per Ex.P-23 (79 bills) amounting to Rs.88,452/-. Sum total of these bills would be Rs.2,78,860/-. Perusal of the award would go to show that there is not even a whisper about these medical bills which were produced. This itself would be sufficient to conclude that there is total non-application of mind and there has been casual approach by the Tribunal which calls for interference at the hands of this Court in exercise of appellate powers. This view is fortified by perusal of award particularly, paragraph 36 and operative portion of the award wherein it has been stated by Tribunal that total compensation to which first claimant is entitled to is for Rs.3,16,713/- and the basis of arriving at such figure is lacking. Sum total of compensation awarded by Tribunal at paragraphs 32 to 36 would be Rs.2,09,000/-. Thus, leaving a gap or difference of Rs.1,07,713/-. As to how this gap is filled : 26 : up by the Tribunal in awarding total compensation of Rs.3,16,713/- is not explained by the Tribunal in its judgment. This itself is sufficient to conclude that Tribunal has erred in not applying its mind to the records produced by first claimant and examining it while computing compensation to which claimant was entitled to. In view of this and as already observed herein supra, that reasons would be supplemented for this vacuum created in the award. I am of the considered view that in all probabilities, Tribunal has thought fit to award a sum of Rs.1,07,713/- towards medical expenses so as to make up the figure of Rs.3,16,713/-. Thus, difference insofar as medical bills namely, Exs.P-22, 23 and 24 would be Rs.1,68,147/- (Rs.2,75,860/- (-) Rs.1,07,713/-). Undisputedly, first claimant has expended this amount and there being no discussion on this aspect by the Tribunal, I am of the considered view that Tribunal committed a serious error : 27 : in not awarding this amount to which the claimant would be entitled to and accordingly it is awarded. 20 In view of the above noted injuries sustained and consequential disability suffered by first claimant he has to bear it throughout his life and there being 50% physical disability to the whole body as opined by the Chairman of Medical Board who issued Disability Certificate, virtually future prospects of claimant, who was at an undisputed point of time, an aspiring Engineer pursuing his career with lots of dreams in life has got shattered and he requires to be suitably compensated for loss of amenities in life apart from awarding additional compensation under different heads as enumerated herein below;
21 It is also to be noticed, on account of first claimant suffering rupture of Urine bladder and Doctors having advised him for review once in two years and possibility : 28 : of first claimant suffering impotency not being ruled out as opined by P.W.4 and on account of said injury, there being loss of marriage prospects and same also requires to be compensated by awarding just compensation.
In view of the aforesaid discussion, I am of the considered view that first claimant would be entitled for additional compensation under the following heads:
1 Loss of future earning Rs.75,000/- 2 Pain and Suffering Rs.50,000/- 3 Loss of amenities Rs.1,00,000/- 4 Attendant charges, nourishment Rs.36,000/-
and incidental charges 5 Medical expenses Rs.1,68,147/-
6 Future medical expenses Rs.25,000/-
7 Loss of marriage prospects Rs.50,000/-
Total Rs.5,04,147/-
: 29 :Accordingly, I am of the considered view that first claimant would be entitled for additional compensation of Rs.5,04,147/- and same is hereby awarded. Re: MFA No.24042/2002 (MVC No.273/2008) - Second Claimant - Sri Hemant Kumar 22 Nature of accident and second claimant also being admitted to the same hospital namely, KLE hospital are undisputed facts applicable to the second claimant. On account of injuries sustained, second claimant was hospitalized for 58 days and he had sustained following injuries:
1. Fracture of both hips with subtrochentteric extension and bimalliolar fracture of left ankle;
2. Fracture of left humerus , fracture of right tibia and fibula , eventually shortening of left leg by ½ inch.: 30 :
On account of these injuries he was operated in both the hips and was operated in left ankle, and it has been fitted with one plate and 10 screws, for fracture of left humerus, second claimant has been operated with one plate and 7 screws inserted and for fracture of right tibia and fibula, second claimant has been operated upon and implanted with two plates and 18 screws. On account of facial injuries sustained, skin grafting has been done by removing skin from left leg. As opined by P.W.2 - doctor left leg has become 'full thickness flap'. Doctor has assessed disability to the lower limb by 45% and 30% for each limb. Disability certificate issued by Medical Board which came to be produced and marked as Exs.P-54 and 55 would disclose that whole body disability has been assessed at 50%. 23 It is on record that as per evidence of PW.2 that second claimant is having pain in both the hip joints on account of fracture and consequential surgery : 31 : conducted on right leg and left arm including ankle and there is restriction of movement. He is unable to stand, walk for long distances and it is seen on clinical examination that from the wound, blood oozes whenever second claimant attempts to walk little distance and has opined that he cannot work independently without assistance of others. Doctor has also opined that there is multiple fractures of both legs and bones and are smashed into small pieces and they were oozing out by way of pus. Admittedly, after operation, only one plate has been removed from right tibia and there are more than four other plates with around 35 screws inserted/implanted which requires to be removed with further operations and atleast three operations are to be conducted as per evidence of the doctor. 24 As noted herein above in the tabular column noted supra, Tribunal has awarded compensation by a modest estimate. In fact, total medical bills which came to be : 32 : produced by second claimant was to the tune of Rs.1,72,673/- as per Exs.P-47 and P-48 and same has been allowed in toto by the Tribunal. In view of disability assessed by the doctor - P.W.2 as per Ex.P-55 to be at 50%, I am of the considered view that second claimant would also be entitled to enhanced compensation. Perusal of photographs produced as per Exs.P-39 to P-41 would clearly establish that insofar as left leg is concerned, it has become a dead wood and second claimant would not be able to walk with the help of left leg and without use of crutches. This fact is also fortified by medical evidence tendered by second claimant. Admittedly, even according to tenor of his cross examination there is shortening of his leg to the extent of ½ inch. As observed in the case of first claimant, for reasons best known, Insurance Company has not chosen to produce any material evidence to disprove the contents of medical records produced by second claimant. Admittedly, Insurance company has : 33 : panel of Doctors who could have certified or stated before Tribunal that the contents of these documents are incorrect either by examining them or producing any material to demonstrate that contents of medical records is incorrect. Mere suggestion in cross examination of the Doctor examined on behalf of second claimant that statement given by them are incorrect, would not support their defence. A plea when pleaded requires to be proved as otherwise, it would remain as a plea without proof and it is this which has exactly happened in the instant case. As such, I am of the considered view that second claimant would also be entitled for additional compensation. 25 Admittedly, second claimant was pursuing his career in Engineering and to establish that he has paid tuition fee for academic year , he has produced receipts as per Exs.P-42 to P-46, the sum total of which is Rs.45,760/- and Tribunal has awarded a sum of : 34 : Rs.25,000/- and amount so awarded when deducted, second claimant would be entitled to additional compensation of Rs.20,760/- towards loss of education for one year and accordingly it is awarded. 26 Therefore, second claimant is entitled to additional compensation under the following heads:
1 Disability Rs.50,000/-
2 Pain and suffering Rs.30,000/- 3 Loss of amenities Rs.75,000/- 4 Attendant charges, food, conveyance Rs.35,000/-
and nourishment charges 5 Future medical expenses Rs.15,000/-
6 Loss of marriage prospects Rs.50,000/- 7 Loss of education for one year Rs.20,760/-
Total Rs.2,75,760/-
: 35 :Thus, second claimant would be entitled to total additional compensation of Rs.2,75,760/- with interest.
In view of discussion aforesaid, point No.(1) is answered by holding that claimants would be entitled for enhanced compensation.
Re: Point No.(2):-
27 For the reasons aforesaid, following order is passed:
ORDER
(i) Appeals - MFA Nos.20243/2008 and 20242/2008 are hereby allowed in part;
(ii) Judgment and award passed by Fact Track Court II and Addl.MACT, Belgaum In MVC Nos.208/2004 and 273/2004 are hereby modified and it is ordered that claimants in both petitions respectively would be entitled for enhancement of compensation of Rs.5,04,147/- and Rs.2,57,760/- : 36 :
with interest @ 6% p.a. from the date of petition till date of payment or deposit whichever is earlier.
(iii) Amounts enhanced and awarded with interest shall be deposited by respective Insurance companies before jurisdictional Tribunal within a period of four weeks from the date of receipt of copy of this order.
(iv) Payment and deposit of compensation shall be regulated by Tribunal as per award passed by it on 08.01.2008 and as ordered therein.
(v) No order as to costs.
Sd/-
JUDGE
*sp