IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF JANUARY 2019 BEFORE THE HON'BLE MR.JUSTICE K.SOMASHEKAR M.F.A.No.429 OF 2015 (MV) BETWEEN:
Minor Jnanesh, S/o Gangadhar Shetti and Jayanthi Shedthi, Aged about 12 years, R/at Brhamashree Krupa, Kudrugodu, Navunda Village and Post, Kundapur Taluk, Udupi District.
Represented by his Natural Guardian Smt.Jayanthi Shedthi, W/o Gangadhar Shetti, Aged about 41 years, R/at Brhamashree Krupa, Kudrugodu, Navunda Village and Post, Kundapur Taluk, Udupi District, Pin-576 201. ... Appellant (By Sri.Haveri.S.S, Advocate) AND:
1. Chandra Achary, S/o Nagappaiah Achary, Aged about 25 years, R/at Deethi, Beejuru Village and Post, Kundapur Taluk, Udupi District, Pin-576 201.
2. Narasimha, S/o. Krishna Devadiga, Aged about 32 years, R/at Burlabetta, Beejuru Village and Post, Kundapur Taluk, Udupi District, Pin-576 201.
3. The United India Insurance Company Limited, By its Manager, Division Office, Kanchana Towers, NH-17, Kundapura, Udupi District, Pin-576 201. ... Respondents (By Sri. Ravish Benni, Advocate for R3, V/o. dated 21.11.2017 R1 & R2- Served) This MFA is filed u/s 173(1) of MV Act against the judgment and award dated: 22.09.2014 passed in MVC No.870/2012 on the file of Additional District and Sessions Judge and MACT, at Kundapur, partly allowing the claim petition for compensation and seeking enhancement of compensation.
This MFA coming on for Hearing, this day, the Court delivered the following:-
JUDGMENT Heard the learned counsel for the appellant and learned counsel for the Respondent-Insurance company.
2. This appeal has been preferred by the appellant against the judgment and award passed by the learned Addl.District and Sessions Judge-MACT, Udupi, sitting at Kundapur in M.V.C.No.870/2012 dated 22.09.2014, wherein it has awarded compensation in a sum of Rs.1,09,000/- with interest at 6% p.a. from the date of the petition till the date of realization of the award amount.
3. The factual matrix of the appeal are as under:- It is stated in the claim petition that on 22.11.2011 at about 4.15 p.m., after completion of the school, the claimant along with his brother was proceeding on a road side of N.H.66. When the claimant minor boy had reached Kirimanjeshwara village near Mookambika Hotal, the rider of the motor cycle bearing Registration No.KA-20 S-3910 came from Kundapur towards Byndoor, in a rash and negligent manner with high speed to endanger the human life, hit the minor boy from the backside, as a result of which, the claimant-minor boy fell down and sustained grievous injuries, like fracture of shaft femur right side and laceration skull. Immediately, he was shifted to Kundapua Chinmayi Hospital and he was treated as an inpatient from 22.11.2011 to 27.11.2011. He was operated for fracture of his bone and femur right side and implants were fixed. Later, he was readmitted to the said Hospital on 25.04.2012 to 27.04.2012 for removal of implants.
4. The claim petition was filed by the mother of the minor boy, as he was aged about 10 years at the time of accident. It is contended in the claim petition that due to rash negligent driving of the motor cycle by the rider, the minor boy sustained grievous injuries, which is evident from the wound certificate as well as the discharge summary issued by the Hospital and PW-2 the Doctor who treated the minor boy.
5. Based upon the pleadings, five issues were framed by the learned Tribunal.
6. In order to establish the case by the claimant, the mother of the minor boy who is the natural guardian was examined as PW-1 – Jayanthi Shedthi and produced the documents at Exs.P1 to P12. Apart from that PW-2 – Dr.Dinesh Kumar Shetty being an Orthopedic Surgeon, who examined the claimant was also examined. He submitted an Affidavit relating to providing treatment to the injured and also Medical Certificate as well as certain documents, which shows that he has given treatment to the injured and also removal of the implants which were fixed.
7. On behalf of the Respondents, no materials were produced before the learned Tribunal.
8. On evaluation of the evidence of PWs 1 and 2 so also the documents at Exs.P1 to P12 produced by PW-1, the Tribunal awarded compensation in a sum of Rs.1,09,000/- with interest at 6% p.a. It is against the said judgment and award, this appeal has been preferred by the appellant.
9. In this appeal, the appellant has taken me through the evidence of PW-1-Jayanthi Shedthi, who is the natural guardian of the claimant, submitted an Affidavit evidence to establish the case for seeking compensation, as the injured minor boy was met with an accident and sustained injuries, which is evident from Ex.P4 – wound certificate so also the disability certificate at Ex.P6 and the X-rays which is at Ex.P12. He took the treatment as an inpatient as per the Inpatient Record at Ex.P10. These are all the evidence which had been appreciated by the Court below and awarded compensation.
10. Learned counsel for the appellant submits that the claimant was aged about 10 years at the time of accident and he was vending milk and also supplying the news paper. Due to the accident, he suffered fracture of femur bone and the evidence of PWs 1 and 2 supported the aforesaid facts and the family members of that minor boy were under depression and the compensation awarded by the Tribunal in a sum of Rs.1,09,000/- is inadequate. Therefore, the learned counsel for the appellant seeking enhancement of compensation by considering the evidence of PWs 1 and 2 so also the documents relating to the wound certificate, disability certificate as well as X-rays produced at Ex.P12.
11. Learned counsel for the Respondent-Insurance company resisted the appeal filed by the claimant and he has taken various contentions that though, PW-1 had been examined for seeking compensation and even though produced the documents at Exs.P1 to P12, but based upon such evidence given by PW - 1 and PW-2 being the Doctor who treated the injured-claimant and on evaluation of entire evidence placed by the claimant in the Court below, had awarded a sum of Rs.1,09,000/- with interest at 6% p.a. is just and reasonable. Therefore, it does not require any interference in the impugned judgment and award passed by the Courts below.
12. In the context of this stated supra by the learned counsel for the appellant, it is relevant to state that the victim – Jnanesh was aged about 10 years at the time of accident on 22.11.2011 at about 4.15 p.m., as this Jnanesh being a minor who was proceeding along with his brother from school to his house, at that time a motor cycle bearing registration No.KA-20 S-
3910 driven by the 1st respondent in a rash and negligent manner, hit the minor boy namely Jnanesh, as a result of that, he sustained fracture of shaft femur right side and so also lacerated skull. The injured minor boy took treatment in Chinmayi Hospital, Kundapura as an inpatient from 22.11.2011 to 27.11.2011. The injured boy was operated and implants were fixed and the boy was readmitted in the said Hospital on 25.04.2012 to 27.04.2012 for removal of implants.
13. PW-1- the mother of the claimant was examined and in support of her contention, an Affidavit evidence was filed. PW-2- Dr.Dinesh Kumar Shetty was also examined and he treated the injured and issued the wound certificate at Ex.P4, disability certificate at Ex.P6 and that boy was subjected to X-rays produced at Ex.P12. There is no dispute that the injured boy aged about 10 years at the time of accident and sustained injuries. There is no dispute that the fracture was operated and implants were fixed and later, the same was removed in the Chinmayi Hospital, Kundapura, but the contention taken that the boy was proceeded for vending milk and he was also supplying papers as he was deriving income to the family members, but due to the accident, the boy was suffering mentally as he being a school going boy but the Court below awarded in a sum of Rs.1,09,000/- as compensation with interest at 6 % p.a.
14. Having gone through the evidence of PWs 1 and 2, as well as relevant documents as stated supra in this appeal, I am of the opinion that a global compensation in a sum of Rs.75,000/- may be awarded in addition to Rs.1,09,000/- awarded by the tribunal, but the enhanced compensation amount of Rs.75,000/- is concerned, the claimant is not entitled for any interest.
15. In view of the aforesaid observations and reasons, I proceed to pass the following order:-
(i) Appeal is hereby allowed in part.
(ii) A global compensation of Rs.75,000/- is hereby awarded to the claimant without fetching any interest on that amount, in addition to the amount already awarded by the Tribunal.
(iii) The enhanced amount shall be deposited within four weeks from the date of receipt of a copy of this order before the Tribunal.
SD/- JUDGE Srl.