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Judgment
V. Jagannathan
These two appeals arise out of one and the same judgment passed by the MACT. Bangalore, in MVC No. 7620/04. M.V.C. No. 3144/06 is by the claimant seeking enhancement of compensation, whereas MVC No. 1597/06 is by the Insurance Company being aggrieved by the amount of compensation to the claimant. Therefore, these two appeals are disposed of by this common judgment.
The case of the claimant before the MACT was that, on 30.8.04, while he was crossing Subramanyaswamy Temple Road, a Scooter hearing No. KA 03 R 281 insured with the Oriental Insurance Company, came in a rash and negligent manner and hit the claimant. On account of the said accident, the claimant suffered fracture and dislocation of left shoulder and fracture of acromic shaft of left humerus and oilier injuries and underwent operation and had internal fixation done. Laying the foundation on the aforesaid facts, the claim petition was filed and it was contested by the owner as well as the insured. The MACT allowed the claim petition and awarded a sum of Rs. 89,800/ as compensation with 6% interest.
The said award of the MACT is called in question by the claimant on the ground that the MACT has tailed to award sufficient amount under the heads of pain and suffering and loss of amenities of life.
On the other hand, the appeal by the Insurance Company is on the footing that the claimant did not suffer any injuries in the accident in question and the claimant never got admitted to the hospital on 2.9.04 and therefore the award of the tribunal be set aside as according to the Insurance Company there is a collusion between the claimant and the insured.
Learned counsel Sri. Krishna Reddy for the claimant argued that the Insurance Company has not disputed the factum of accident or the injuries sustained by the claimant as no pleadings are found in the counter filed by the Insurance Company and therefore, this court at this stage cannot find a new view being taken by the Insurance Company. As far as the compensation is concerned, submission made is that the MACT has awarded less amount under the heads of pain and suffering and loss of amenities of life and therefore under the above heads the amount be increased.
On the other hand, learned counsel Sri. Vasanth for the Insurance Company argued that though the claimant says in his evidence that he got admitted to the hospital on 2.9.04, the hospital records does not reveal admission of the patient on the said date, whereas the record speaks of the claimant having admitted and having taken the treatment on 5.9.04. Therefore, a false ease is filed by the claimant and as such, the tribunal''s award be set aside.
Having thus heard both sides, insofar as the contention put forward by the Insurance Company is concerned, on going through the counter file before the tribunal by the Insurance Company, no such plea is taken as is now sought to be put forward before this court. In other words, the Insurance Company has not disputed the factum of accident having occurred on 30.8.04 and injuries sustained by the claimant in the said accident. Therefore in the light of the decision of this court reported in ILR 20902 KAR 1905. no new pica can be allowed to be canvassed for the first time in appeal and as such, the contention put forward by the learned counsel for the Insurance Company will have to be rejected as having no merit in it.
As far as the enhancement of compensation is concerned, the MACT has awarded Rs. 10,000/-towards pain and suffering and Rs. 5,000/- towards loss of amenities of life. Considering the medical evidence on record placed through PW 2, the compensation requires to be increased and under the head of pain and suffering, in view of the fracture sustained by the claimant, a sum of Rs. 10.000/- can be awarded and likewise, towards loss of amenities of life, having regard to the medical evidence of the Doctor, percentage of disability put at 15% to the whole body, under the head of loss of amenities, a further sum of Rs. 15,000/- can be awarded. Thus, the compensation gets increased by Rs. 25,000/-.
For the aforesaid reasons, the appeal filed by the claimant for enhancement is allowed in part and the award amount is increased by a further sum of Rs. 25,000/- with 6% interest and secondly the appeal fired by the Insurance Company stands dismissed. The amount in deposit before this court be transferred to the MACT.