Karnataka High Court
The Divisional Manager vs Rizawana on 5 September, 2018
Author: K.Somashekar
Bench: K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 5TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
MFA NO.23961 of 2009 (MV-I)
BETWEEN
THE DIVISIONAL MANAGER,
THE UNITED INDIA INSURANCE CO, LTD.,
OPP: KITTLE COLLEGE, DHARWAR,
BY DIVISIONAL MANAGER.
... APPELLANT
(BY SHRI A.G.JADHAV, ADVOCATE)
AND
1. RIZAWANA W/O HAMEED SAB PENDARI,
AGE 09 YEARS, OCC: STUDENT,
R/O KALASAPUR, TQ: GADAG,
SINCE MINOR REP. BY HER NATURAL MOTHER,
SMT.FATIMABHI W/O.HAMEED SAB PENDARI,
AGE 34 YEARS, OCC: COOLIE.
2. GANESHA PANDAPPA LAMANI,
AGE MAJOR, OCC: BUSINESS,
R/O THANDA, AT & POST: NAGAVI,
DIST: GADAG.
... RESPONDENTS
(BY SHRI NAVEEN CHATRAD FOR
SHRI MAHESH WODEYAR, ADVOCATE FOR R1;
SHRI SHARANABASAVARAJ C. ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF THE
M.V.ACT, 1988, AGAINST THE JUDGEMENT AND AWARD
:2:
DATED 04-06-2009, PASSED IN MVC NO.54/2005 ON THE
FILE OF THE DISTRICT AND SESSIONS JUDGE, GADAG,
AWARDING THE COMPENSATION OF RS.4,00,000/- WITH
INTEREST AT 6% P.A. FROM THE DATE OF PETITION FROM
26.03.2005 TILL TO THE DATE OF DEPOSIT.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant as well as respondents No.1 & 2 and perused the records.
2. The appellant-Insurance Company has preferred this appeal, challenging the impugned Judgment and award dated 04.06.2009, passed by the learned District and Sessions Judge, Gadag (for short "the Tribunal") in MVC No.54 of 2005.
3. For the sake of convenience, the parties are referred to as per their rank before the Tribunal.
4. The facts of the case are that on 29.10.2004 at about 4:30 p.m. when the petitioner-claimant was playing with other small boys and girls on Kalasapur-Nagavi road near the garden land of Pendari, the offending passenger :3: auto-rickshaw bearing registration No.KA-26/3472 came in a high speed with rash and negligent manner and dashed against her. She sustained fractures in both limbs. Initially, she was shifted to District Hospital, Gadag and after preliminary treatment; she was shifted to KIMS Hospital, Hubballi, wherein she was admitted as inpatient for two months. As a result of that she could not attend the school and thereby she left the school. The same has been narrated in her claim petition in MVC No.54 of 2005, which is filed seeking compensation.
5. In order to prove the case, the mother of the petitioner examined herself as P.W.1 and got examined the doctor as P.W.2 and got marked Exs.P-1 to P-73. On the other hand, the respondent No.1 did not appear and respondent No.2-Insurance Company appeared through their counsel and filed their written statement denying the contention of the petitioner and contested the claim petition. But respondent No.2 got marked a document as Ex.R-1-Insurance Policy. During the enquiry before the Tribunal, the petitioner established the occurrence of the :4: accident, actionable negligence on the part of the driver of the offending vehicle and its insurance coverage with the appellant.
6. Based on the pleadings of the respective parties, the Tribunal framed as many as five issues, which are incorporated in the impugned judgment. The Tribunal, after evaluation of the oral and documentary evidence has held that the accident had occurred due to rash and negligent driving of the offending vehicle, awarded total compensation of Rs.4,00,000/- with interest at 6% per annum from the date of petition till the date of realization under the following heads.
Sl. Headings Amount
No. (Rs.)
1. Pain and agony 60,000/-
2. Medical expense 40,000/-
3. Permanent disability 1,00,000/-
4. Future unhappiness & loss of 1,00,000/-
amenities
5. Loss of marriage prospectus 75,000/-
6. Loss of expectancy 25,000/-
Total 4,00,000/-
7. The learned counsel for the appellant-Insurance Company during the course of arguments has taken me :5: through the evidence of PW1 and PW2, being the Doctor who subjected to examination relating to the assessment of disability and so also the impugned judgment and award passed by the Tribunal and also contended that the Tribunal erred in awarding the compensation under different heads. He further submits that the Tribunal was not justified in assessing the permanent physical disability of the injured and awarded double compensation towards 'permanent disability' and 'Future unhappiness & loss of amenities', which are on the higher side and prays for setting aside the impugned judgment and reduction in the compensation.
8. Per Contra, the learned counsel appearing for the claimant submitted that on appreciation of the evidence and the materials available on record, the Tribunal has awarded just and fair compensation, which does not calls for interference and prays for dismissal of the appeal.
9. Keeping in view the submission made by the learned counsel for the appellant and the respondents are concerned, it is relevant to state that a case in National :6: Insurance Co. Ltd., vs. Pranay Seti and others reported in AIR 2017 SC 5157, wherein the Hon'ble Supreme Court held that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, but in the present case, the Tribunal was awarded a sum of Rs.4,00,000/- with interest at 6% p.a. Based on the evidence of PW1 as well as the evidence of PW2 and so also the wound certificate at Ex.P5 and disability certificate at Ex.P12 as well as X-ray films at Exs.P1 and P71 to P73, which are produced by the claimant in order to establish the case seeking compensation. But the Tribunal has awarded double compensation in a sum of Rs.1,00,000/- each towards future unhappiness and loss of amenities and permanent disability sustained in the accident and so also awarded a sum of Rs.40,000/- towards medical expenses. On careful evaluation of the material on record, it is relevant to state that the injured has sustained injuries, which indicates at Ex.P5 as well as disability certificate at Ex.P12, as the injured being school going student and due to the accident, she left the school. For :7: which the Tribunal has awarded a sum of Rs.75,000/- towards loss of education and loss of marriage. Therefore, keeping in view of the contentions and the grounds urged by the learned counsel for the appellant, it is seen that there are substances in the contention of the learned counsel for the appellant which calls for interference. In this regard, it is just and proper that the compensation of Rs.1,00,000/- awarded towards future unhappiness and loss of amenities requires to be intervened by this Court.
Accordingly, the appeal filed by the appellant- Insurance Company is hereby allowed-in-part. Consequently, the impugned judgment and award passed by the Tribunal against the appellant is hereby modified and the compensation awarded by the Tribunal is reduced to an extent of Rs.1,00,000/- under the head future unhappiness and loss of amenities, from the total compensation awarded by the Tribunal. The appellant-claimant would be entitled to a total compensation of Rs.3,00,000/- instead of Rs.4,00,000/- awarded by the Tribunal, which shall carry :8: interest at the rate of 6% p.a. from the date of petition till the date of realization.
The amount in deposit by the appellant-Insurance Company shall be transmitted to the Tribunal for disbursement to the claimant with proportionate interest. In respect of Rs.1,00,000/- to the aforesaid head, the same shall be refunded to the appellant-Insurance Company with proportionate interest.
Ordered accordingly.
Sd/-
JUDGE Vnp*