IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04th DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE B. SREENIVASE GOWDA M.F.A.No.3308 OF 2014 (MV) BETWEEN:
K. AKSHAY S/O KANTHRAJU AGED ABOUT 21 YEARS R/AT NO.6/b RAILWAY POLICE QUARTERS SHESHADRIPURAM BANGALORE …APPELLANT (BY SRI. K.V. NAIK, ADV. FOR SRI. SHRIPAD V SHASTRI, ADV.) AND:
1. IFFCO TOKIO GENERAL INSURANCE CO. LTD STRATEGIC BUSINESS UNIT CRISTU COMPLEX, LAVELLE ROAD BENGALURU – 01 BY ITS MANAGER 2. LESSEE SKOL BREWERIES LTD JALAHALLI CAMP ROAD YESHWANTHPURA BENGALURU …RESPONDENTS (BY SRI. MAHESH A.S., ADV. FOR R2; SRI. D.VIJAYA KUMAR, ADV., FOR R1) THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.02.2010 PASSED IN MVC NO.4800/2009 ON THE FILE OF THE II ADDITIONAL JUDGE, COURT OF SMALL CAUSES, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is by the claimant, challenging the judgment and award passed by the Tribunal on the ground of negligence as well as quantum alongwith an application, IA-1/15 filed under Section 5 of the Limitation Act praying to condone the delay of 1451 days in filing the appeal.
2. Heard the learned counsel appearing for the parties on IA as well as on main appeal. Perused the judgment and award passed by the Tribunal.
3. The claimant who sustained injuries in a road traffic accident occurred on 26.5.2009 by involvement of a car bearing registration No. KA 04 ME 4089 filed a claim petition through guardian as he was minor before MACT, Bengaluru, seeking compensation from the insurer and owner of the offending car. The Tribunal while answering issue No.1 in affirmative held that the claimant had proved that on 26.5.2009 while he was crossing 10th Cross, Sampige Road, Malleswaram, Bengaluru, a car bearing No.KA 94 ME 4089 came in a rash and negligent manner with high speed and dashed against him, as a result he sustained grievous injuries, but while discussing issue No.2 has held that the claimant has also contributed for the accident at 20% and deducting 20% from the compensation amount of Rs.42,500/- has awarded a compensation of Rs.34,000/- and directed the insurer of the car to pay the compensation to the claimant. The claimant aggrieved by the said judgment and award of the Tribunal has preferred this appeal both on the ground of negligence as well as quantum.
4. Regarding delay in filing the appeal, Sri K.V. Naik, learned counsel appearing on behalf of Sri Shripad V.Shastri, learned counsel for the claimant submits that the claimant was minor aged 16 years in 2009, while preferring the claim petition and he attained majority in 2011 and the above appeal was filed within three years from the date of attaining majority.
5. Regarding negligence, learned counsel submits that the Tribunal without considering that the claimant was minor at the time of accident and no negligence can be attributed against him has committed an error in holding that the claimant had also contributed for the accident at 20% and deducted 20% from the compensation determined.
6. Regarding quantum, he submits that the compensation awarded by the Tribunal is on the lower side and therefore, he prays for allowing the appeal by enhancing the compensation awarded by the Tribunal.
7. Sri D.Vijaykumar, and Sri Mahesh.A.S, learned counsel appearing for the insurer and owner of the offending vehicle respectively submit that as per the age shown for the claimant in the cause title of the claim petition he was 16 years old in 2009, accordingly he attained majority in the year 2011 and the above appeal was filed within three years from the date of attaining the age of majority but the application for condonation of delay in filing the appeal was filed one year after filing of the appeal. They further submit that claimant had withdrawn the amount of compensation awarded by the Tribunal through his guardian long prior to filing of the appeal and guardian who would prefer the appeal in 2014 could have preferred it within the prescribed period of limitation. They further submit that reasons stated in the affidavit are far from truth and no sufficient grounds are made out for condoning the inordinate delay of 1451 days in filing the appeal. Regarding negligence they fairly submit that if the appellant had preferred the appeal in time, the finding of the Tribunal on negligence that the claimant had also contributed for the accident at 20% would have been modified. Regarding quantum they submit that the compensation which is already awarded by the Tribunal is just and reasonable and there is no scope for enhancement and they sought for dismissal of the appeal both on the ground of delay as well as on merit.
8. The age shown for the claimant as 16 years in the cause title of the claim petition during the year 2009 is not in dispute. Accordingly he had attained majority during the year 2011 and he could have preferred the appeal within three years from the date of attaining majority, but the instant appeal was preferred through natural guardian and therefore the benefit of limitation available to minor, that minor can challenge any proceedings/order which had gone against him within three years from the date of attaining majority is not applicable to the instant case. The date of birth of the claimant is not forthcoming either in the claim petition or in the records of the Tribunal to know when he was born and what was his actual age as on the date of filing of the claim petition. If he had attained majority in the year 2011 as per the age shown in the cause title of the claim petition, he had to file the appeal in the year 2011 in his own capacity and not through his guardian. The application for condonation of delay was filed by the claimant himself, one year after filing of the claim petition. At this stage, learned counsel for the claimant requests the Court to modify the judgment and award passed by the Tribunal on negligence and enhance the compensation awarded by the Tribunal reasonably by denying interest on the enhanced compensation in view of long delay in filing the appeal.
9. Regarding negligence; It is not in dispute that on 26.5.2009 when claimant was crossing Sampige road in Malleswaram, Bengaluru, he sustained injury in a road traffic accident occurred by involvement of the offending car bearing registration No.KA 04 ME 4089. As on the date of accident, the claimant was minor and therefore attributing any amount of negligence on the claimant is not proper. In fact, the Tribunal while answering issue No.1 has recorded a finding that the accident has occurred due to rash driving of the offending car by its driver, but while discussing issue No.2, by referring to a judgment of some other case by mistake held that the claimant had contributed for the accident to the extent of 20% and has deducted 20% of the compensation determined. Therefore, the finding of the Tribunal on issue No.1 is clarified holding that the accident has occurred due to rash and negligent driving of the offending car, as has been held by the Tribunal while answering issue No.1. The next question would be whether compensation of Rs.42,500/- awarded by the Tribunal is just and reasonable or does it call for enhancement. Keeping in mind the inordinate delay in filing the above appeal, an additional global compensation of Rs.38,500/- is awarded, inclusive of Rs.8,500/- which was wrongly deducted by the Tribunal towards alleged contributory negligence on the part of the claimant. Hence, the following :ORDER:
Accepting the reasons stated in the affidavit accompanying the delay application, I.A.No.1/2015 is allowed and delay of 1451 days in filing the appeal is condoned subject to condition that appellant is not entitled for interest, for the delayed period, on the enhanced compensation.
The appeal is allowed in part. The judgment and award passed by the Tribunal is modified. The claimant is entitled to an additional global compensation of Rs.38,500/- without interest. The 1st respondent insurer of the offending car is directed to pay the said amount without interest within two months from the date of receipt of copy of this order. Failing to pay the said amount within two months from the date of receipt of copy of this order, it will carry interest at 6% p.a. after two months from the date of receipt of copy of this order.
No order as to costs.
Sd/- JUDGE KLY/