H Vijayanath Hegde S/O B Sadashiva … vs The Oriental Insurance Co Ltd on 21 January, 2010

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THES THE 215' DAY OF JANUARY, 2010 

PRESENT
THE HON'BLE MRSJUSTICE MANEULA Ci-f-lF.:i.:§LL,J-£?».VV: O.

A N D  

we HON'BLE MR. JUSTICE A.N.VEr\iEEG:(5_PALAE'C.(§WE)«A" 

MISCELLANEOUS FIRST APPEALAEO. 1o9o':'*. oF..V?;.=ooAs (VMV)

BETWEEN:

H. Vijayanath Hegde, V "
S/o. B.SadaShi)a'a"i7fVégd€1,._
Aged about 3.7'~~/4ea7f_s_.'_ ' S _   
R/o. No.2, Eiiieng'Crest'-Apa'E:mentf; 
Grape Garoen'~,..V%Ejip.;;;V_ra .'\(i_aér1"u'¥?.oa.(i,W_v.?

Viveknaigar,' .  _ 
Bangalore --._ '56O""J4.3A;'A  

Preseiéfiv No4.'§,.,:Kod}'haI'E4, 
 1" maggn Road, HA-L..2_Tj_Stage,
'indIrvanag-ar,'=Bangalore -- 38.

.  _  1.   APPELLANT
  Adv. for M/S. Lawyers Inc.)

A V _ AND??-

A   A. The Orifiental Insurance Company Ltd.,

 " _Branch Office, No.21, Mission Road,
_   Baragalore.



2. P.}.Ganapathi
No.2o8,3"iManw,5"'crosa
Indiranagar,

Bangaiore -- 560 068.

(By Sri. M.Sowri Raju, Adv. for R1;
R2 served)

mnesnonpshfsg

Thm MFAisfHedLMS.173(1X

petition for compensation andggsi-eeking'----.enhua'nceme'nt of
compensation.  -  9

This appeai cofni-nV:g_AoA.n afoihri"=-adinission this day,
A.N.VEi\iUGOPALA GOWDA,I.3., de'ii:ve_r.ed-.Ajthe_~__foIiowing:

:jup§MEN%f;_'}'

T:i1i's'Vi'a'pp:eai  p'e_tit'ioner for modification of
the judgment and by the MACT and to award
just compen's=ati'onV.V  L

 "Appeiian"t"'had filed a claim petition against the

"'.yeS.pond:e'ntséydiguniier Section 166 of the Indian Motor

Veh»i.cVIes,~Ac't*,--'E988, for awarding of compensation of

i1"»-'~.__V*Rs.35,C)Q_iiJOO/--, contending that, on 11.06.1998 at about

 a.m on Saibaba Road, in front of Cambridge

.':V'_'i'3__épartmentaE Stores, when he was engaged in riding a

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motor cycle, the driver of Tata Sumo vehicle No.KA--Q_3~N~

8017 was engaged in driving the same, negvlii.ge.nntiy

stopped the vehicle and opened the front 

vehicle without observing the vehicilehand n"ia'de.:15l*a,e""rnC.tor.V "

cycle ridden by the appellant to dash the ..fi'ont_'d'oo'i' or:Ta.tia.c_:

Sumo and thereby, becamei'the_ reason for'tl;le',:._'a.CC,ir33ent 

and as a result, he sustained__4_n:V'gr:i_evous.'i'rrj:ii:rv.t%Having
taken treatment and entitled to be
compensated on .3ccoun~--on the part of
driver of    Claim P€titl0"-
Respondentl'ȣo;::3l'V1fi,l,ed"   and contested the
claim.  issuance and subsistence of
the polincyln  the offending vehicle.

Respondent i\l'c..2"'rennaained absent and was placed

  .Trib'u.nal raised the issues. Petitioner deposed as

APW:-i1_,5nti"'--«_enxa'ifrviia~'hed Dr.B.K.Sudhakanth as PW--2. Ex.P--1

 _ to Ex---,P--:;4'3'.'were marked. No evidence was adduced by

 Vngthe,rr_esp'o"ndents. Upon appreciation of the evidence placed

 r._on_n'r'e-cord, the Tribunal held that, the accident has taken

 mace on account of rash and negligent act on the part of

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driver of Tata Sumo vehicle and as a result, the petitioner

sustained injuries.

3. - Considering the nature of injur.ie»s"'..su'sftained,'~:

the treatment obtained, expenditure etc.',' and the.:_restiVl:t'a'Vnt 

effect, the tribunal has passed, the ayv..ard._ for Ry's";y2:,34',OV0.C))2 it

with interest at 6% p.a from"'1ii.§:'."O2.2i)O'O_V_ till j"'.2sI1ii2;'2ooo
and from 11.11.2003 tii:l~..pfiayF"l'i'e'nl::i--:'jyylyhetaward"passed by
the Tribunal has not been respondents.
Respondents  trie  The appeal is
by the  oilicompensation. Hence,
it is issue relating to the
actionable  of the driver of offending
vehic|e_._V  ii i A it 

  _Lea._rned counsel appearing for the appellant

 the tribunal has not awarded just

V it _ com'p'ensv--a't'ion", after proper appreciation of the evidence on

.recor_d and hence the record may be reconsidered and just

 i._co_m'pe'nsation awarded. Sri Sowri Raju, learned advocate

ndfapipearing for the first respondent insurance company

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contended that, the tribuna! has taken into consideration

every minute detaiis of the matter, has ccnirectiy

appreciated the evidence placed on its record:._a'nAd"V-'.3-ftAe'a'~._._T'i.

proper assessment of the injuries and the re'sd'i't-a_r:.tV"effe,¢t,c._ "

has awarded the just compens.atio"riA.'t'antd_

enhancement is caiied for.

5. In view of th"e.__riva'.i'i'c'ohtenti'ons aéindvithei record,
which we have perused,  is:
   by the
   ?"
6.1" """   "._Wd'eVtJosed as PW--1.
or.a.:<.P-105 are the medical biiis. Ex.P~106 to

A '~:Ey<.P~139 to Ex.P~143 are the

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outpatient file and )(--rays. There is no dispute that,

accident has occurred on account of negligent acts..o'n__thVe

part of the driver of the offending vehicle and  _

the appellant sustained injuries andmhas ta_Ew--2 has specifically

a"d_m~liftted" never conducted the surgery to the

 _ petiti'oneis.f§' -hlowever from the documents, it is clear that,

u"":".v4.4"*--Vthe]app'e'llant had suffered anterior wedge compound

._fr'a_Vctu~i~'e of D5 (thoracic) vertebrae with scalp laceration

it  has taken treatment as an inpatient for about 11 days





from 11.06.1998 to 19.06.1998 and thereafter from

07.88.1998 upto 18.09.1998 and on 19.O6.1998','_"Vh_Ve

underwent skin grafting, The amount 

hospitalisation are borne out of the records.,...w'ii2iVchi.::vv.hen'"

caicuiated, would amount about 

tribunal has awarded. Conside-r_i4_ng the_"period,,oi'~
as an inpatient and  'towards
nourishment, attendant'-r._&  charges, the
tribunal has awarded  &
Rs.3,000/-- resp"eci'j;ixr.eiy.,:i-_which: isjtuvstl'aindireasonable. The

injuries must hiave 'n1ad'e3ffth:e'~-appieilant to lose income

during the __periVo'd.,--of"tireaitrriveri't ~98: recovery and hence the

amount awardedV"-at".V,Rsi2Q,9OO/-- is just compensation.

V Considering the'inv_aVtVure:of injuries sustained, the amount

 the head 'pain and suffering' at

 appears to be marginaiiy low, but,

 _consi"derir_i'gj "the amount awarded under the head 'loss of

future income', under which head appellant is not entitled

 best the appellant is only entitled to the

..'_4"coa--npensation towards 'loss of amenities', the Eow amount



awarded under the head 'pain and suffering' is made up

from the amount awarded under the head 'loss 

income'.

7. It is evident from the  

the appeiiant that, even after the~..Aa"ccident,.".;"saia'ry'f=.,

income has not come down, w'he:reas, "more
than the amount, which 'he wafs"Veair.F}iVrig..éas onhthiew date of
accident. If that be so, :a'bip'eii'an.t._:'ig.x_'rsd_t,i,.entitled to be
awafded an'!  tt;iev~'he'aAd'i'i'i.ifCSs__,:of:future income'.
The amount?"  Essie'.-'atitied to be awarded
is oniyi"'u'n'd'e.ri,i,thieiffwhead.,:'."!oss'_"V'o'fVV: amenities and future
unhappiriessiif,  awarded at Rs.30,000/--,

which in thie"~fa'cts_}--anAc;', circumstances of the Case, is not

the sam'e"'*cou|d be made up from the amount

 head 'Eoss of future income'. There is

or.i'I=,{"erro.r.in'i.Vaoportionment under different heads. When

"the overaiii picture is taken into consideration, the amount

i'~1ia'ward~«ed at Rs.2,,34,000/w by the tribunai is just

 compensation. Since there is no Eoss of future income, the

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ORDER

i. Appeai is ailowed in part.

ii. The compensation awarded by the tribima:i’««..’_i’at

Rs.2,34,000/– with interest at 6%

compensation, is maintained.

iii. The aopeilant is hetd entitlediio ini:’e_:7Aest

award amount of Rs.2,3-{€0.00/-V.a1;’6%.Rpv.’a””‘from
28.12.1998 tiii thesqate of'”‘d-e._f:’xo’s’i*t._of taheiiaamount by

the first respondent –¥V%in’sti’r-.=.iriC.’e co’-.mioa”r.-y. No costs.

iv. RegjvistrvyiiissfdireEtVad.:to»..drawtrie modified amount.

sa/-

JUDGE

sa¢
JUDGE