IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD M.F.A.No. 7901 OF 2015 (MV) BETWEEN:
Mohammed Ayub S/o Muzammil Pasha Aged about 09 years No.31/16, 12th Main Road Vijayanagar, Bangalore-40. Since the appellant is minor Represented by his father Sri. M.G.Muzammil Pasha. … Appellant (By Sri.Krishna Kishore.S., Advocate) AND:
1. Ningegowda.N S/o Narasimhaiah No.27/2/24, Kebbehalla Channigappa Layout Bangalore-91.
(Owner of Maruthi van Exparte) 2. Rangaraju.M S/o Mudalaiah “Prashanthi Nilaya” 3rd Block, 2nd Cross Guru Layout, Tumkur (Policy holder) & Exparte 3. United India Insurance Co. Ltd., Regional Office No.18, Krushi Bhavan, 5th & 6th Floor Opp, to Hudson Church, Hudson circle N.T.Road, Bangalore-01.
Represented by its Manager. ... Respondents (By Sri. Mahesh Shetty, Advocate for R1 & R2: Sri. Karthik B.Y., Advocate for R3) This MFA is filed under Section 173(1) of MV Act against the Judgment and Award dated: 01.07.2015 passed in MVC No.2475/2014 on the file of the XVIII Additional Judge, Court of Small Causes, Member, MACT-4, Bangalore partly allowing the claim petition for compensation and seeking enhancement of compensation.
This appeal, coming on for admission this day, the Court, delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 01.07.2015 passed by the Motor Accident Claims Tribunal, Court of Small Causes, Bangalore (SCCH-4) in MVC No.2475/2014, whereby the Tribunal has awarded a compensation of Rs.1,25,807/- with interest at 6% p.a. from the date of petition till the date of deposit.
2. The brief facts of the case are that on 31.05.2014 at about 1.30 p.m. claimant was crossing from west to east direction on 5th Cross, near Triangle Print Communication, Vijayanagar, Bangalore. At that time, the driver of the Maruthi Van bearing No.KA-06/M-8129 drove in high speed in a rash and negligent manner and dashed to the claimant, as a result of which, claimant sustained injuries and took treatment in the hospital. Immediately after recovering from the injuries, he filed a claim petition before the MACT, Bangalore in MVC No.2475/2014.
3. To establish his case, father of the claimant was examined as PW1 and Dr.Manju Jayaram was examined as PW2 and got marked 16 documents. On the other hand, on behalf of the Insurance Company, neither any witnesses were examined nor any documents got marked. On appreciation of the oral and documentary evidence, the Tribunal has granted a compensation of Rs.1,25,807/- with interest at 6% p.a. Being not satisfied with the quantum of compensation claimant has filed this appeal.
4. Sri S.Krishna Kishore, learned counsel for the appellant submits that as on the date of accident claimant was a minor aged about 8 years. Due to the accident he has suffered the following injuries:
Cut lacerated wound measuring 0.6 x 0.6 cm. present over antuomedial aspect of lower 1/3 of right leg, diffuse swelling present over right leg. X-ray No.11651 dated 31.5.2014 of right leg shows communited fracture of distal 1/3 of right tibia fracture of middle 1/3 of right fibula.
The doctor was examined as PW2. He has deposed that there is physical impairment of 27% with respect to right lower limb and he assessed 9% disability to the whole body. The Tribunal while calculating the compensation has not considered ‘future loss of income’ in terms of the law laid down by the Hon’ble Supreme Court in the case of MALLIKARJUN vs. DIVISONAL MANGER, NATIONAL INSURANCE CO. LTD. AND ANOTHER reported in 2013 ACJ 2445. Hence, he seeks for enhancement of compensation.
5. Per contra, Sri B.Y.Karthik, learned counsel appearing for respondent No.3 Insurance Company submits that the doctor has assessed whole body disability at 3%. Therefore, the Tribunal has granted a just and proper compensation. Hence, he seeks for dismissal of the appeal.
6. Heard learned counsel for the parties and perused the records.
7. It is not in dispute that due to the accident the claimant has suffered the injuries. He has examined Dr. Manju Jayaram as PW2. As per the doctor, there is physical impairment of 27% with respect to the right lower limb and he assessed 9% whole body disability. In view of the law laid down by the Hon’ble Supreme Court in MALLIKARJUN (supra) in case the disability is less than 10%, claimant is entitled for Rs.1.00 lakh compensation in addition to the expenditure towards conveyance, nourishment and attendant charges. In view of the above, claimant is entitled for compensation of Rs.1.00 lakh towards loss of amenities in life on account of permanent disabilities. The compensation granted under the heads ‘medical expenses’, ‘conveyance, nourishment and attendant charges’ and ‘future medical expenses’ are retained.
8. The award passed by the Tribunal, dated 01.07.2014, is modified as under:
9. The Insurance Company is directed to deposit the enhanced compensation amount along with an interest @ 6% per annum from the date of filing of the claim petition, till the date of realization, within a period of four weeks from the date of the receipt of a copy of this order. The amount so deposited by the Insurance Company shall be disbursed to the claimant, after due verification of his identity.
With the above modifications the appeal is allowed in part.
Sd/- JUDGE Cm/-