Kum Deeksha J Vs Mahesh Kumar

THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.12.2013 PASSED IN MVC NO.443/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MEMBER, MACT, MANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This is claimant's appeal against the judgment and award dated 30.12.2013 passed by the Principal Senior Civil Judge and Member, MACT, Mangalore in MVC No.443/2012.

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The parties are referred to as per their ranking before the Tribunal.

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Brief facts of the case of the claimant are that on 21.11.2011 at about 4.15 p.m. she met with an accident in front of Saibeen Complex, Lalbagh Circle, Mangalore due to rash and negligent driving of the bus bearing registration No.KA

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HC-KAR

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19 AB 2223 by its driver. As a result of which, she sustained severe injuries, which is stated in the wound certificate. It was further stated that at the time of accident, the claimant was aged about 16 years and studying in I year PUC, and was unmarried. Due to injuries she has been suffering from permanent disability and her face disfiguration, with these reasons she prayed to award compensation of Rs.15,00,000/-.

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Respondent Nos.1 and 2 are the driver and owner and respondent No.3 is the insurer of the offending vehicle. Respondent Nos.1 and 2 were exparte. Respondent No.3 in its written statement denied the contentions of the claimant. It also disputed its liability to pay the compensation and prayed to dismiss the claim petition against respondent No.3.

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From the rival contentions of the parties, the Tribunal framed necessary issues.

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The claimant, to prove her case examined her guardian as PW.1 and marked Exs.P1 to P17. Respondents have not led oral evidence, but marked one document i.e. copy of policy of insurance as Ex.R1.

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HC-KAR

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After hearing both the parties, the Tribunal held that the accident had taken place due to rash and negligent driving of the offending vehicle by its driver. The Tribunal in all awarded the compensation of Rs.5,54,500/-. Being not satisfied by the award of compensation, the claimant preferred this appeal for enhancement of compensation.

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There is no serious dispute in respect of accident in question. Respondent No.3-insurer has not challenged the impugned judgment. There is no need to reconsider the findings of the Tribunal on issue not that accident took place due to negligence of driver of the bus.

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The Tribunal has awarded the following amount of compensation:

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1.	Pain and suffering	Rs.1,30,000/-
2.	Nourishment charges	Rs.10,000/-
3.	Attendant and Conveyance	Rs.20,000/-
4.	Loss of amenities, future unhappiness	Rs.1,00,000/-
5.	Disfiguration, difficulty in marriage prospects	Rs.1,25,000/-
6.	Future medical expenses	Rs.50,000/-
7.	Medicine and hospital charges	Rs.1,01,500/-
8.	Loss of income of the guardian of the petitioner during treatment period of the petitioner	Rs.18,000/-
	Total	Rs.5,54,500/-

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I have heard the arguments.

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HC-KAR

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Learned counsel for appellant/claimant submits that Ex.P13 is certificate issued by the Medical Officer. It is also discloses injuries sustained by claimant and her disabilities and facial disfiguration. She took treatment as inpatient totally for 62 days. She was minor and hence one of her parents were in the hospital where she was taking treatment as inpatient. For follow-up treatment she had to frequently visit the hospital. Due to disfiguration of face, her marriage prospects is very bleak. These facts were not considered and just and reasonable compensation were not awarded. Hence, prays to enhance the same.

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Learned counsel for respondent No.3 Sri.S.Srishaila vehemently contended that the amount of compensation awarded by the Tribunal is just and reasonable. Under some of the heads excess amount of compensation is awarded. It is true that the insurer did not challenge the said award, but facts remain that, since the Tribunal has awarded excessive compensation, there is no need to interfere in the findings of the Tribunal. Therefore, he prays for dismissal of the appeal.

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HC-KAR

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The only question that arises for my consideration is as under;

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"Whether the claimant is entitled for enhancement

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of compensation?"

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My findings on the said question is partly in affirmative.

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I have anxiously perused the records as well as gone through the oral and documentary evidence. Fact of accident and the injuries sustained by the claimant are not disputed. Hence, no need to reconsider the same.

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Learned counsel for respondent No.3-insurer contends that victim was not examined before the Tribunal, therefore, the evidence given by her guardian cannot be considered to assess the injuries and compensation. He also contends that the doctor who treated the victim, was not examined before the Tribunal. Unless the doctor is examined, the injuries stated by

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the guardian of the victim cannot be considered. Both the submission is not tenable on two grounds. Firstly, claimant was minor at the time of accident. Therefore, guardian who was representing her and prosecuting her case on her behalf, was

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HC-KAR

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examined to prove her case. Secondly, Tribunal has not awarded any compensation on the head of loss of future earning capacity due to permanent disability. For assessment of permanent disability, examination of a medical expert is required. Looking to the evidence of PW.1, it is not disputed that her face is disfigured due to the injury sustained in the accident. Anyone seeks her finds disfiguration of face. Hence, expert evidence is not required. Hence, non-examination of claimant or her parent and doctor who treated her is not fatal to the case of claimant.

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Looking at the materials available on record, it is also noted by the Tribunal in paragraph No.17, claimant had taken treatment as inpatient for 62 days. She underwent surgeries as well as plastic surgery. Her guardian had paid Rs.2,26,360/towards medical expenses, out of which PW.1 got reimbursement of Rs.1,25,026/- as he was working in the Warehouse Department. Considering the same, Tribunal reduced the medical expenses.

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Admittedly, claimant was aged 16 years at the time of accident and was a college student. Disfiguration of face of a

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HC-KAR

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young college going girl is not just a physical injury but a deep emotional and social trauma. At a stage when appearance and confidence shape her future, such an injury affects her mental wellbeing, social interactions and prospects of education, career and marriage, the impact goes beyond scar. It affects her dignity and quality of life. It is also stated in evidence of PW.1 that the claimant has to undergo another plastic surgery, which is noted in Ex.P13 also. Considering the said fact and the materials available on record, compensation awarded by the Tribunal on some of the heads are on lower side, which needs to be enhanced. Consider the same, following amount of compensation is enhanced:

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1.	Pain and suffering	Rs.1,50,000/-
2.	Nourishment charges, attendant and conveyance	Rs.50,000/-
3.	Loss of amenities, future unhappiness	Rs.1,25,000/-
4.	Disfiguration, difficulty in marriage prospects	Rs.1,50,000/-
5.	Future medical expenses	Rs.50,000/-
6.	Medicine and hospital charges	Rs.1,01,500/-
7.	Loss of income of the guardian of the petitioner during treatment period of the petitioner	Rs.18,000/-
	Total	Rs.6,44,500/-

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The claimant is entitled for enhanced compensation of Rs.90,000/-. She is also entitled to interest at the rate of 6%

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HC-KAR

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p.a. on the enhanced compensation from the date of claim petition till its realization. It is undisputedly respondent No.3the insurer of the offending vehicle, who is liable to pay the same. For the aforesaid discussions, I answer the above question partly in the affirmative and proceed to pass the following:

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ORDER

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i. The appeal is allowed in part ;

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ii. The impugned judgment and award dated 30.12.2013 passed in MVC No.443/2012 by the Principal Senior Civil Judge & Member, MACT, Mangalore is modified;

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iii. The appellant/claimant is entitled to an enhanced compensation of Rs.90,000/- with interest at the rate of 6% p.a. from the date of petition till its realization;

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