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C. Praveen v/s V. Prakash & Others


Company & Directors' Information:- PRAVEEN INDIA LTD . [Active] CIN = L21029WB1983PLC036326

Company & Directors' Information:- PRAVEEN & COMPANY PRIVATE LIMITED [Strike Off] CIN = U99999DL1999PTC098397

    Miscellaneous First Appeal No. 23016 of 2010 (MV)

    Decided On, 03 January 2018

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Appellant: Anil Kale, Advocate. For the Respondents: R2, Preeti Shashank, Advocate.



Judgment Text

(Prayer: This Appeal is filed U/S 173(1) of the Motor Vehicles Act, 1988, against the judgment and award Dated: 26-02-2010 passed in Mvc.No.391/2009, on the file of the Member, V-Mact, Bellary, Partly allowing the claim petition for enhanced compensation and seeking further enhancement of compensation.)

1. The present appeal has been preferred by the appellant-claimant being aggrieved by the judgment and award dated 26.02.2010, passed by the Vth Additional MACT, Bellary in MVC No.391/2009.

2. Heard. The appeal is admitted and with the consent of learned counsel appearing for the parties, it is taken up for final disposal.

3. The brief facts leading to the case are that, on 08.05.2006 the petitioner and other persons were travelling in a Tempo Trax bearing registration No.KA-34/5929 as paid passengers. At about 5.30 A.M., the said vehicle was proceeding near Industrial area on Bangalore-Bellary road, Bellary and due to his rash and negligent act, the driver lost the control over the vehicle and the said vehicle turned turtle and fell down towards the left side of the road. As a result of the same, the petitioner and inmates of the said vehicle sustained injuries. For having sustained the injuries, a claim petition came to be filed under Section 166 of Motor Vehicles Act claiming compensation.

4. In pursuance of the notice, the respondent Nos.1 and 2 appeared and filed their written statement. Respondent No.1 in his written statement contended that the said vehicle was insured with respondent No.2, the policy was in force as on the date of accident and as such, the Insurer is liable to pay the compensation.

5. The respondent No.2-Insurer filed its written statement. By denying the contents of the petition, it is further contended that the liability is subject to the terms and conditions of the policy and on these grounds, it is prayed for dismissal of the claim petition.

6. On the basis of the above pleadings, the Tribunal framed the following issues :

1. Whether the petitioner proves that, the accident dated 8.5.2006 was due to rash and negligent driving of the Tempo Trax driver, bearing No.KA- 34/5929, thereby petitioner sustained grievous injuries ?

2. Whether petitioner is entitled for compensation? If so how much? From whom?

3. What award ?

7. In order to substantiate his case, the petitioner got examined himself as PW1 and got marked the documents as Ex.P1 to P18. The respondents did not lead any oral evidence, but got marked the policy as Ex.R1. After hearing the parties to the lis, the impugned judgment and award came to be passed, whereunder an amount of Rs.75,000/-, with interest @ 6% p.a., has been awarded by the Tribunal. Being not satisfied with the compensation awarded by the Tribunal, the appellant-claimant is before this Court.

8. The main grounds urged by the learned counsel for the appellant-claimant are that the Tribunal has erred in not considering the fact that the spleen of the minor boy was removed and the compensation awarded is not adequate and sufficient. He further contended that, no compensation has been awarded under the heads of 'pain and suffering' and 'loss of amenities'. He further contended that the compensation awarded is on the lower side. On these grounds, he prayed for allowing the appeal by enhancing the compensation awarded by the Tribunal.

9. Per contra, the learned counsel appearing on behalf of the respondent-Insurer by justifying the judgment and award, submitted that since the compensation awarded under the head 'medical expenses', which includes, the pain and suffering, and the petitioner has taken the treatment free of cost, no amount should have been awarded under the said head. She further contended that the compensation awarded is just and adequate and the same may be confirmed.

10. The accident is not in dispute, so also the involvement of the offending vehicle insured with respondent-Insurance company.

11. As could be seen from the judgment and award, the minor petitioner sustained injuries to his abdomen and was admitted in the hospital and the discharge summary, which has been produced at Ex.P.17 clearly indicates the fact that, he was in the hospital from 08.05.2006 to 16.05.2006 and it discloses that the said minor boy was operated and the spleen was removed on 08.05.2006. He produced the certificate issued by the Doctor as per Ex.P8. In the said certificate, the Doctor has opined that the petitioner finds it difficult to perform his physical activity and it is going to affect his studies and thereby he has assessed the disability to the extent of 25% to the whole body. Though the claimant has been examined by the Doctor and the spleen has been removed, the Tribunal has awarded the compensation of Rs.75,000/-, which appears to be on the lower side.

12. The Tribunal has not kept in view, what is the actual effect of removal of the spleen. As per the medical jurisprudence 'spleen' plays multiple supporting roles in the body. It acts as a filter for blood as part of the immune system. Old red blood cells are recycled in the spleen, and platelets and white blood cells are stored therein. The 'spleen' helps to fight certain kinds of bacteria that cause pneumonia and meningitis. In that light, the spleen is an important part of the body. It works as a defense (immune) system. It contains special white blood cells which destroy bacteria and help the body to fight against infections when a person is sick. In that light, the spleen plays a very important role in the body of a person. This aspect has not been considered by the Tribunal, while awarding the compensation.

13. Be that as it may, when the spleen of a person is removed, then, continuous treatment is required for the purpose of the survival of that person by getting him vaccinations to fight against bacteria attacks. In case no proper care is taken, it may lead into influenza or Pneumonia resulting in death of the person. In that light, the compensation, which has been awarded by the Tribunal appears to be on the lower side. The Doctor, who is examined as PW2, has deposed that the minor boy has suffered disability to the extent of 25% and the said suffering is throughout his life. In that light, I feel that the compensation awarded by the Tribunal is not just and proper and the same requires to be enhanced.

14. Keeping in view the above said aspects, the petitioner is entitled to an amount of Rs.30,000/- towards 'pain and suffering' an amount of Rs.1,50,000/- towards 'loss of amenities, discomfort and future treatment' for the purpose of proper functioning of the immune system in good condition and an amount of Rs.20,000/- has been awarded towards 'loss of income' of the parents during the treatment period and diet, transportation and other incidental charges. In all, the appellant-claimant is entitled to an amount of Rs.2,00,000/- with interest @ 6% per annum. Though the Tribunal has awarded the compensation under the head 'future medical expenses' and 'attendant charges', the compensation awarded under the said heads is not corre

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ct and the same has to be re-assessed as stated above. 15. In the light of the above discussion, the appellant-claimant is entitled to an additional compensation of Rs.1,25,000/- with interest @ 6% per annum after deducting the compensation awarded by the Tribunal to the extent of Rs.75,000/-. Accordingly, the appeal is allowed in part and the judgment and award in MVC No.391/2009 passed by the Tribunal is modified as indicated above. The respondent-Insurer is directed to deposit the compensation awarded by the Tribunal as well as an additional compensation awarded by this Court with up to date interest within a period of six weeks from the date of receipt of a copy of this order. Registry is directed to draw the award accordingly and send back the records forthwith.
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