Karnataka High Court
Mr. Syam Prakash T.S vs M/S Oriental Insurance Company Limited on 8 February, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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MFA No. 8116 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
MISCELLANEOUS FIRST APPEAL NO. 8116 OF 2016 (MV-I)
BETWEEN:
MR. SYAM PRAKASH T.S.
S/O. OF THANKAPPAN O.
AGED ABOUT 39 YEARS,
NO.111/2, CVSR HOMES,
G-1, II CROSS, REDDY'S LAYOUT,
T.C.PALYA ROAD, RAMURTHY NAGAR,
K.R.PURAM, BENGALURU 560 016.
...APPELLANT
(BY SRI. GIRISH K.V., ADVOCATE)
AND:
1. M/S. ORIENTAL INSURANCE COMPANY LIMITED,
NO.19/1, IST FLOOR,
III CROSS, CHIKKANNA GARDEN,
SHANKAR MUTT COMPOUND,
SHANKARPURAM
BENGALURU 560 040.
REP. BY MANAGING DIRECTOR.
2. D. KUMAR,
S/O. LATE DEVE GOWDA,
AGE: MAJORNO.24, 4TH CROSS
2ND MAIN ROAD,
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MFA No. 8116 of 2016
GOVINDRAJNAGAR,
BENGALURU 560 040.
...RESPONDENTS
(BY SRI. C.R.RAVISHANKAR, ADVOCATE FOR R1
NOTICE TO R2 IS DISPENSED WITH V/O/DATED 29.07.2021)
THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S
173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD
DT.30.01.2016 PASSED IN MVC NO.6600/2013 ON THE FILE OF
THE 5TH ADDITIONAL SMALL CAUSES JUDGE AND XXIV
A.C.M.M. MEMBER, MACT, MAYOHALL UNIT, BENGALURU
(SCCH-20) PARTLY ALLLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS MISCELLANEOUS FIRST APPEAL, COMING ON FOR
HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY
RAMACHANDRA D. HUDDAR J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal has been filed by the appellant against the impugned judgment and award dated 30th January 2016 in MVC No.6600/2013 passed by the MACT and V Additional Judge, Court of Small Causes, Mayo Hall Unit, Bengaluru, urging various legal grounds and contentions for enhancement of compensation in the case of motor accident wherein the Tribunal has awarded compensation -3- MFA No. 8116 of 2016 of a sum of `5,00,000/- under various heads with interest at the rate of 9% p.a. from the date of filing the petition till the date of its realisation.
The brief facts of the case are stated hereunder:
2. It is the case of claimant before the Tribunal that, on 6.4.2012 at about 1.45 a.m., when he was proceeding in a Tata Indica Car bearing Registration No. KA-02-AA-9662 along with his wife, daughter and other passengers on National Highway No. 206, Kadur Town, Chikkamagalur District, near Pragna School, the driver of the said car drove the car in a rash and negligent manner and dashed against a stationed KSRTC Bus bearing Regn.No.KA-31/F-1061. Due to the said impact, the claimant sustained grievous injuries. Immediately, he was shifted to Nanjappa Hospital, Shivamogga, wherein he took the treatment as in-patient. Thereafter, on the advise of the doctor, he was taken to BGS Hospital, Kengeri, Bengaluru for higher treatment.-4- MFA No. 8116 of 2016
3. It is the further case of the claimant that, he has spent more than `5,50,000/- towards medical expenses, Food and Nourishment and transportation and other charges. He also had to spend more than `5,00,000/-
towards future medical expenses. Thus, he has claimed a total compensation of sum of `3 crores.
4. It is his further case that prior to the accident, he was hale and healthy, aged 35 years, was working as Software Engineer at Values Soft Solutions Pvt.Ltd., K.R.Puram, Bengaluru. According to him, he was earning a salary of `44,000/- per month at that time. It is his further case that due to the accidental injuries, he has suffered pain and mental agony. Now he is unable to continue his duties as a Software Engineer. He has been disabled and he cannot work as he was working prior to the accident.
5. He has further stated that, as the said accident has taken place because of rash and negligent driving by the driver of the Tata Indica Car bearing KA-02/AA-9662, the first respondent being the Insurer and the second -5- MFA No. 8116 of 2016 respondent being the owner of the car are jointly and severally liable to pay the compensation. Hence, he prayed before the Tribunal to award the compensation as prayed for.
6. Pursuant to the notice issued by the Tribunal, the first respondent appeared through its counsel and filed its written statement. The second respondent despite service of notice, did not appear before the Tribunal, hence, he was placed ex parte.
7. The respondent No.1-Insurance Company in its written statement, denying all the assertions made in the claim petition with regard to income, avocation of the claimant as well as loss of income, amenities etc.., has specifically contended that, there was no rash and negligent driving of the car by its driver in the manner as stated by the claimant. It is also contended that the liability of respondent no.1 is subject to terms and conditions of the policy. It is also contended that the petition filed by the claimant is bad for non-joinder of -6- MFA No. 8116 of 2016 necessary parties. Thus, it was prayed by respondent no.1.to dismiss the petition.
8. Based upon the pleadings of both the parties, the Tribunal framed in all four issues, they read as under:
"1. Whether the petitioner proves that, on 6.4.2012 at about 1.45 a.m. when the petitioner was passenger in Tata Indica Car bearing Reg.No.KA-02/AA-9662 along with wife and daughter, at that time one KSRTC bus bearing Reg.No.KA-31/F-1061 came from high speed and dashed against the said car, due to impact, petitioner was sustained grievous injuries?
2. Whether the 1st respondent proves that, the driver of said Tata Indica Car had no valid and effective driving licence to drive the same as on the date of the accident?
3. Whether the petitioner is entitled for compensation? If so, to what amount and from whom?
4. What order or award?"-7- MFA No. 8116 of 2016
9. Before the Tribunal, in order to prove his case, the claimant got himself examined as PW.1, also examined one Dr.Santhosh N.U as PW.2, produced and got marked the documents from Exs.P-1 to P-33. On behalf of the respondents, no witnesses were examined however, one document - Insurance Policy was got marked as Ex.R1.
10. After hearing the arguments and on perusal of the records, the learned Tribunal by the impugned judgment and award dated 30.01.2016 held that, the accident took place due to rash and negligent driving of offending Indica car, as a result of which, the appellant suffered injuries and awarded pecuniary as well as non- pecuniary damages. The Tribunal awarded the compensation under different heads as per table below:
HEADS AMOUNT
1. Pain and suffering `30,000-00
2. Conveyance, Attendant `25,000-00
Charges and Nourishing
food etc.
3. Medical Expenses `2,25,000-00
4. Loss of pay during `1,20,000-00
treatment period
4. Loss of amenities in life `1,00,000-00
TOTAL ``5,00,000-00
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MFA No. 8116 of 2016
11. Being aggrieved by the said award of the Tribunal, the claimant has preferred this appeal before this Court praying for enhancement of the compensation on the ground that the Tribunal ought to have awarded the compensation as prayed for by the claimant on the basis of the evidence placed on record.
12. The respondent No.1 Insurance Company is represented by its learned counsel. Notice to respondent No.2 is dispensed with vide Court order dated 29.7.2021.
13. The records from the Tribunal were called for and same are placed before the Court.
14. Heard the learned counsel for both parties and perused the materials placed before this Court including the impugned judgment and award and the records of the Tribunal.
15. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Tribunal.
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16. During the pendency of this appeal, the appellant has filed I.A.II/2016 on 30.11.2016 under Order XLI Rule 27 of CPC to produce additional evidence. Along with the application, he has produced, one document showing that he has been relieved of his services in which he was working i.e. with Inncrewin Technologies Pvt. Ltd., According to the claimant, now he is not working and he is relieved of his duties as Software Engineer from that Company. As such, he prays to take into consideration the document filed in support of his contention.
17. Learned counsel for the appellant-claimant in his arguments submits that, due to the accident, the claimant sustained grievous injuries. Further, the doctor has also opined that the claimant has sustained 40% intellectual disability, 10% carnial nerve disability and 20% sensory system disability and assessed the disability to the whole body at 56.8%. Further, the Tribunal has awarded compensation towards `pain and suffering' to the extent of `30,000/- which is quite low. So also the claimant has
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MFA No. 8116 of 2016 spent sufficient amount towards conveyance, nourishment, medical expenses so also he has lost his income during the laid up period and, amenities etc. It is his further submission that, the Tribunal has not taken into consideration the evidence of the doctor who has deposed before the Tribunal. Without assessing the evidence properly, the Tribunal has awarded a meagre compensation. Therefore, it is prayed by the counsel for the claimant/appellant to enhance the compensation awarded by the Tribunal.
18. In support of his submission, he relied upon judgment of Hon'ble Supreme Court in R.D.Hattangadi vs. Pest Control (India) Pvt. Ltd., 1 wherein it has been categorically stated, in injury cases, compensation ought to be assessed as pecuniary damage i.e. cost incurred by the claimant and special damages which includes damages for mental and physical shock, loss of amenities, loss of expectation of life and inconvenience. 1 (1995) 1 SCC 551
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MFA No. 8116 of 2016
19. Per contra, the learned counsel for the respondent No.1 Insurance Company submits that, the present appeal is filed by the claimant challenging the impugned award passed by the Tribunal. According to him, whatever compensation so awarded by the Tribunal is just and proper. By filing this appeal, though the claimant has sought for enhancement of the award, but, the Tribunal, after considering the evidence placed on record has rightly awarded the compensation. There is proper appreciation of evidence. He further submitted that the doctor who was examined as PW.2 is not a treating doctor even according to the claimant, but, he has just medically examined him and issued certificate of disability. As per the evidence of PW.1 claimant himself after the accident, though he was earning `44,000/- prior to the accident, he changed the company and his salary was enhanced. Now by producing the additional evidence, the claimant is claiming that he has been relieved of his duties, therefore, now he is unemployed which cannot be accepted as a truthful evidence.
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MFA No. 8116 of 2016
20. It is his further submission that, the claimant has wrongly claimed enhancement towards various heads as stated in the appeal memo. There cannot be any loss of future income as still the appellant is working and earning more than what he was earning prior to the accident. Therefore, there was no loss of income as alleged by the claimant. It is further submitted that, the claimant has not suffered any physical disability and has not produced any document to substantiate his contention regarding his disability, as such, now he cannot say there is a functional disability.
21. It is further submitted by the counsel for respondent no.1 that there are no legal or factual grounds to interfere into the reasonable award passed by the Tribunal wherein just compensation has been awarded. Therefore, it is prayed by respondent no.1 to dismiss this appeal as devoid of merits.
22. We have given our anxious consideration to the arguments of both the side. Having heard the learned
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MFA No. 8116 of 2016 counsel appearing for the parties and having gone through the materials on record, the question that arise for our consideration are as to -
Whether, the appellant-claimant has made out any case for further enhancement of the amount of compensation?
23. It is settled principles of law that, "money cannot bring back any physical frame that has been battered." This principle was laid down in H.West and son Ltd., vs. Shepherd2 is consistently followed by various Courts in India also. It is now well settled position of law that, even in the case of permanent disablement incurred as a result of motor accident, the claimant can seek apart from compensation, for future loss of income. The Hon'ble Apex Court in catena of judgments emphasised time and again that `Just Compensation' should include all elements that would go to place the victim as in earlier position he or she was before the occurrence of the accident. It is true that, no money or 2 1964 AC 326
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MFA No. 8116 of 2016 other material compensation can erase the trauma, pain and suffering that a victim undergoes after the serious accident. Monetary compensation is the manner known to law whereby, Society assures measure of restitution for survival of the victim.
24. The Hon'ble Apex Court in Rajkumar vs. Ajay Kumar3 has considered the heads under which compensation is to be awarded for personal injuries. The heads under which compensation awarded in personal injury cases are the following:
1. Pecuniary damages (Special damages):
i) expenses relating to treatment,
hospitalization, medicines, transportation,
nourishing food and miscellaneous
expenditure.
ii) loss of earnings (and other gains) which the injured would have made had he not been injured, comprising;3
(2011) 1 SCC 343
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MFA No. 8116 of 2016
a) loss of earning during the period of treatment
b) loss of future earning on account of permanent disability
iii) Future Medical Expenses:
Non pecuniary damages (general damages)
iv) Damages for pain, suffering and trauma as a consequence of the injuries,
v) Loss of amenities and/or loss of prospects of marriage.
vi) Loss of expectation of life (shortening of normal longevity)
25. It is settled principle of law in R.D.Hattangadi's case supra, that while fixing an amount of compensation payable to a victim in an accident, the damages have to be assessed separately as pecuniary damages and special damages.
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MFA No. 8116 of 2016
26. In Pappu Deo Yadav vs. Naresh Kumar and others4, the Hon'ble Apex Court held that Court should not adopt stereo typical or myopic approach but, instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities and compensation under various heads.
27. In this case, the Tribunal considering the evidence placed on record by the claimant, has awarded the compensation to the extent of `5,00,000/-. Now, what is to be seen as emphasised by the decisions of the Hon'ble Apex Court is, the impact of injury upon the earning capacity of the victim. The loss of limb and its severity on that account is to be judged in relation to the profession, vocation or business of the victim. There cannot be blind arithmetic formula for ready application.
28. Now let us proceed to examine the appellant's claim for enhancement of compensation awarded to him by 4 (2022) 13 SCC 790
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MFA No. 8116 of 2016 the Tribunal. PW.1 being the claimant has reiterated the assertions made in the petition. As per the wound certificate, the injuries found on the claimant and as narrated by PW.2 the doctor in his examination-in-chief are as under:
(a)Sutured wound over Right Suprorbital ridge
(b)Sutured wound over left Supraoribtal Ridge
(c) Fracture oribit
(d) Leforte Fracture type II
(e) Optic Nerve Applexy
(f) Frarumatic Brain Injuries and other injuries.
29. According to the claimant after necessary treatment at Govt.Hospital, Kadur thereafter at Nanjappa Hospital, Shivamogga, he was referred to BGS Global Hospital, Kengeri, Bengaluru, there POP cast was applied, operation was conducted, internal fixation was done and other necessary treatment was administered on him. After discharge, even he was advised to undergo the physio- therepy treatment. Thus, according to him he has spent
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MFA No. 8116 of 2016 more than `5,00,000/- for treatment both as in-patient as well as out patient.
30. According to his evidence, because of the accidental injuries, he is unable to comb the hair, often he gets headache, giddiness, loss of memory and unable to see properly. He is also experiencing blur image while seeing, unable to do any normal activities, unable to hold, lift any objects, unable to drive any vehicle, not able to squat, sit, stand, jump, climb and not able to squat. Thus, according to him, his normal activities are hampered. Thus, claimant claims that he has suffered permanent disability.
31. As per to the doctor's evidence, when he examined the claimant on 31.8.2015, he noticed following physical deformities on the person of the claimant. They read as under:
* Intellectual disability- 40% (Neuropsychological assessment report dated 16/04/2015).
* Speech disability- Nil * Cranial nerve disability- 10% (Audiometry report dated 11/04/2015).
* Motor system disability -Nil
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* Sensory system disability 20% * Bladder disability Nil * Post head injury, epilepsy and fits- Nil
32. Hence he has Global disability of 56.8% as on 31/08/2015. Thus, the doctor has assessed disability at 56.8% as on 31.8.2015. He has been cross-examined by counsel for respondent no.1. He has stated in his cross- examination that, he was not a treating doctor and based upon the documents, he came to know the nature of treatment administered on the claimant. Based upon WHO AIMS guidelines, he has issued the disability certificate. As he was not a treating doctor, it is hard to believe the evidence of the doctor. His evidence shows that, for the purpose of speaking about the disability, this PW.2 has been examined by the claimant. Nothing prevented PW.1 claimant to examine the doctor who has treated him. The doctors who have treated are the best witnesses to speak about the disability. Based upon the documents only, PW.2 has given his evidence.
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MFA No. 8116 of 2016
33. So far as documentary evidence is concerned, Ex.P7 is the discharge summary issued by Nanjappa Hospital, Shivamogga wherein from 6.4.2012 6.25 a.m. till 11.4.2012 claimant took treatment as an in-patient. He was diagnosed with head injury with laffods II with Saha due to road traffic accident. The clinical investigation was done. CT scan was taken. The various tests have been conducted. It was the impression of the Radiologist that there was fracture of medial and lateral valve right orbit, interior and lateral wall, maxillary sinus, right zogomatic arch and right nasal bone and Minimal subramild bleeding.
34. As per the X-ray, all other organs were in tact. Ex.P8 is the discharge summary issued by BGS hospital, Bengaluru wherein on 14.4.2012 he was admitted as in- patient and surgery was conducted on 19.4.2012. Thereafter, on 23.4.2012, the claimant was discharged. At BGS Hospital, he was diagnosed as under:
1. Traumatic brain injury
2. Laffods fracture type II
3. Fracture orbit
4. Optic nerve apoplexy
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35. To show that the claimant is still under treatment, except the evidence of PW.1, no evidence is placed on record by the claimant. The claimant has claimed that he has spent more than `5,50,000/- towards medical expenses, but, has produced the medical bills at Ex.P9 amounting to `2,31,308/-. The Tribunal has awarded the said amount considering the medical bills and prescriptions. We do not find any reason to enhance the same.
36. So far as loss of future income because of disability is concerned, the Tribunal has come to the conclusions that, he was Software Engineer as per the evidence placed on record at Value Soft Solutions Pvt.Ld., K.R.PUram Bengaluru, prior to the accident and was earning a sum of `44,000/- per month. To prove the said fact, he has produced letter of appointment as per Ex.P11. He also has produced pay slips from Ex.P14 to P20. Thus, these documents prove that, prior to the accident, monthly salary of the claimant was `48,000/-. In the cross-
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MFA No. 8116 of 2016 examination as culled out above, it is his evidence that prior to the accident, he was earning `48,000/- per month, and subsequently he joined Inncrewin Technologies and earning a salary of `50,000/- per month. He joined the said company during July 2015. That means as per the findings of the Tribunal, now he is working in another company and continuing his profession as a Software Engineer. He is earning more salary than what he was earning prior to the accident. Therefore, the Tribunal has come to the conclusion that, there is no question of granting any compensation towards loss of future income. That means the disability so alleged by the claimant has not affected his earning capacity. Therefore, the Tribunal has not awarded any compensation towards loss of future income due to permanent disability. Though the doctor has assessed the physical disability, but, in view of admission in cross-examination, as he is still working, the question of awarding compensation towards loss of income due to disability does not arise at all.
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MFA No. 8116 of 2016
37. However, the claimant has filed I.A.II/2016 by invoking the provisions of Order XLI Rule 27 of CPC seeking leave of the Court to produce additional evidence, wherein, along with his I.A. he has produced the document issued by Inncrewin Technology private Ltd.,. It shows that, he joined the service in the said company on 1.7.2015 and resigned on 01.06.2016. He was relieved on 01.06.2016 itself. For what reason the claimant has resigned his job is not made clear. Initially he was working in Values Soft Solutions Pvt.Ltd.,, K.R.Puram, Bengaluru and was earning `48,000/- and after accident, he joined this new company called as Inncrewin Technolgoy Pvt.Ltd.,. From there also he resigned. What was the reason for resigning Value Soft Solutions and resigning from service of Inncrewin Technology Pvt.,Ltd., is not made clear. That means, there is no termination of the claimant from both the companies. Though it is the evidence of PW.1 that, he has been terminated, but, his own document itself shows that he has not been terminated from the aforesaid company. He voluntarily
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MFA No. 8116 of 2016 resigned from the first company and joined the second company after the accident. Therefore, self-serving document produced by claimant is not at all helpful to his case. There is no concrete evidence that, now the appellant is unemployed. Therefore, rightly the Tribunal has come to the conclusion that, there is no loss of any future income due to disability. The Tribunal has rightly denied the compensation towards loss of future income due to disability. We do not find any factual or legal error committed by the Tribunal in denying the compensation towards the permanent disability also. Therefore, I.A.No.1/2016 filed by the Appellant/claimant to receive the additional evidence has no merit.
38. It has come in the evidence of claimant that, because of this accident, from the date of accident i.e. from 6.4.2012 to 14.7.2012, he was under treatment. From the date of accident he was admitted in the hospital both at Nanjappa Hospital, as well as BGS Hospital. For about three to four months he was under medical
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MFA No. 8116 of 2016 treatment. A medical certificate is produced by the claimant as per Ex.P26 issued by the BGS hospital on 30.1.2014. Therefore, as per the evidence of the claimant, from 06.04.2012 to 14.12.2012 he was under treatment. This period was required to the claimant for medical treatment to get his health restored to its earlier position. He was also treated in the BGS hospital from 14.12.2012 to 23.12.2012 as per the discharge summary. As rightly observed by the Tribunal, except the aforesaid discharge summary, no other document is produced by the claimant to show that, he abstained from his duties for a period of three years because of this accidental injuries. No such document is produced. The Tribunal by calculating his absence from duties, has rightly awarded `1,20,000/- towards loss of income during the laid up period, which, in our opinion is just and proper. Therefore, whatever the award towards loss of income during laid- up period is just and proper.
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MFA No. 8116 of 2016
39. While assessing the evidence on record, we are of the opinion that, the award of the Tribunal to some extent deserves to be modified so that the claimant receives proper and just compensation for the injuries suffered by him. It is well settled that, compensation for personal injuries is higher as compared to fatal cases, since in the former case, it is to be utilised by the survivor/victim of the accident and in the latter by the legal heirs. It is true that the compensation cannot bring back the victim to the stage he enjoyed before the accident, but, it would provide him some solace and security for future.
40. As discussed above, the appellant/claimant has suffered fractures as well as other injuries as noticed by the doctor that means there is loss of bodily integrity gives a right to damage even if there is no damage at all to the earning capacity or even to enjoyment of life. But, damages in such cases are awarded commensurate with the extent, gravity and duration of the injury. The test in the case of bodily injury ought to be as to whether the
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MFA No. 8116 of 2016 breaking of the physical integrity is of a temporary nature or permanent nature and what impact i.e. to what extent is the physical incapability or temporary or permanent disability will be reflected in the earning capacity of the injured.
41. Keeping the aforesaid settled principle, the learned Tribunal though awarded compensation towards `pain and suffering' to the extent of `30,000/-, looking to the gravity of the injuries, if the compensation so awarded under the head `pain and suffering' is enhanced to the extent of `50,000/- from `30,000/-, it would meet the ends of justice. Therefore, appellant/claimant is entitled for enhanced compensation of `20,000/- in all.
42. Accordingly, we proceed to pass the following :
ORDER [i] The Appeal filed by the appellant is allowed in-part, [ii] I.A.2/2016 filed under Order XLI Rule 27 of CPC, is dismissed.
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MFA No. 8116 of 2016 [iii] The impugned judgment and award dated 30.01.2016, passed by the learned V Addl.Senior Civil Judge and XXIV Addl.Chief Metropolitan Magistrate, Motor Accidents Claims Tribunal, Mayohall Unit, Bengaluru, in M.V.C.No.6600/2013, is hereby modified to the extent that the compensation awarded at `5,00,000/- is enhanced by a sum of `20,000/- (Rupees Twenty thousand only) thus, fixing the total compensation at `5,20,000/- (Rupees Five Lakhs Twenty Thousand only).
[iv] Enhanced amount may be released in favour of the claimant immediately after its deposit.
[v] The rest of the order of the Tribunal with respect to fixing the liability upon the respondents and directing respondent No.1 - Insurance Company to deposit the awarded
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MFA No. 8116 of 2016 amount, awarding the interest, its rate, shall remain unaltered.
Draw the modified award accordingly.
Registry to transmit a copy of this judgment along with records to the concerned Tribunal without delay.
Sd/-
JUDGE Sd/-
JUDGE Sk/-