Shantha K. Shetty Vs. M.V. Prathibha and anr. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100: [n. kumar, j] decree in suit for declaration of title states appeal against it delay of 9 years and 7 months lower appellate court refusing to condone the delay and dismissed the appeal second appeal held, state which represent the collective cause of the community, does not deserve a litigant. refusing to condone the delay can result in a meritorious matter being thrown out, at the very threshold and cause of justice being defeated. the technicalities of procedure should yield to considerations which would promote public interest and substantial justice. when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. delay was condoned. order of lower appellate court was set aside. matter remitted to lower appellate court for disposal of appeal on merits. section 5; condonation of delay - decree in suit for declaration of title states appeal against it delay of 9 years and 7 months lower appellate court refusing to condone the delay and dismissed the appeal second appeal held, state which represent the collective cause of the community, does not deserve a litigant. refusing to condone the delay can result in a meritorious matter being thrown out, at the very threshold and cause of justice being defeated. the technicalities of procedure should yield to considerations which would promote public interest and substantial justice. when delay is condoned, the highest that can happen is that a case would be decided on merits after hearing the parties. when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. delay was condoned. order of lower appellate court was set aside. matter remitted to lower appellate court for disposal of appeal on merits. a.n. venugopala gowda, j.1. petitioner is the appellant. the claim petition filed by her under section 166 of the motor vehicles act, 1988 against the respondents has been allowed in part awarding compensation of rs. 40,000/- with interest at 6% p.a. from the date of petition. dissatisfied with the amount of award, contending that the appreciation of evidence is not correct and that there is no just award passed in her favour, this appeal has been filed.2. heard the learned counsel on both sides and perused the records. the findings of the tribunal with regard to the accident in question is not under challenge. the finding of the tribunal that the petitioner sustained accidental injuries and has taken treatment and is entitled for awarding of compensation is also not under challenge. the only question which requires to be considered is, whether the tribunal has awarded just compensation.3. petitioner deposed as p.w. 1. she has narrated about the injuries sustained by her in the accident and the treatment, which she has taken. ex. p. 5 is the wound certificate. ex. p. 7 is the hospital report. exs. p. 8 and p. 9 are the hospital documents and certificate. exs. p. 12 to p. 15 are the medical bills, prescriptions, opd card and x-rays. evidence on record shows that the petitioner sustained fracture of right fibula and fracture of 5th metatarsal bone in the right foot. she has taken treatment conservatively at k.c. general hospital. in these circumstances, the amount awarded under the head pain and suffering at rs. 22,000/- is on a lower side and hence she is entitled to be awarded as additional sum of rs. 3,000/- thereunder.4. it is not in dispute that the petitioner was an inpatient for a day and thereafter has taken treatment as an outpatient. petitioner has availed leave for about 35 days which shows that, she must have taken extranourished diet and must have spent towards conveyance to obtain treatment at the hospital. in the circumstances, the amount of rs. 3,000/- awarded under the head medical and incidental expenses is not just and the petitioner would be entitled to be awarded a further sum of rs. 3,000/- under the said head.5. ex. p. 10 is the salary certificate which shows that the petitioner was drawing rs. 5,204/- per month. ex. p. 11 shows that petitioner availed 35 days earned leave for recovery from accidental injuries. the tribunal has awarded rs. 5,000/- under the head loss of earning during laid up period. considering the fact that the petitioner availed 35 days leave, there is loss of earning for the entire period of 35 days, petitioner is entitled to be awarded further sum of rs. 2,000/- under the said head.6. considering the nature of injuries which may affect the petitioner in future, tribunal has awarded rs. 10,000/- under the head loss of amenities. keeping in view, the future unhappiness on account of the accidental injuries, in my view, it would be reasonable to award a further sum of rs. 5,000/- under the said head.7. the award made by the tribunal does not reflect the just compensation. keeping in view, the nature of the injuries and the resultant loss, an additional compensation of rs. 13,000/- in the aforesaid manner is awarded, which would be a just award.in the result, the appeal is allowed in part. in modification of the judgment and award passed by the tribunal, petitioner is held entitled to a compensation of rs. 53,000/- with interest at 6% p.a. as against rs. 40,000/- awarded by the tribunal. respondent-insurance company shall deposit within a period of three months from today, the balance amount of rs. 13,000/- along with interest at 6% p.a. from the date of petition till its deposit in the tribunal. registry is directed to draw up the modified award accordingly.