IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL No.1058/2012 (MV) BETWEEN:
National Insurance Co. Ltd., Ramaswamy Circle, Mysore-24.
Through its Regional Office No.144, Subharam Complex M G Road, Bangalore-560001 Rep. by its Administrative Officer Smt.D Karthika. ... Appellant (By Sri Lakshminarasappa for Sri B C Seetharama Rao, Advocate) AND:
1. Kum.Shobha d/o Nanjunda Bovi Aged about 14 years Since minor, rep. by her Father and natural Guardian Nanjunda Bovi r/a Sathyagala A Kavalu Kasaba Hobli, Periyapatna Taluk.
Or No.1/3, 2nd Main, Jayanagar Mysore-14.
2. Sri Nagesh, Aged about 29 years, s/o Annegowda (Driver of Tractor No.KA-45/T-1908) 3. Sri Annegowda Aged about, s/o Bijjegowda (Driver of Tractor No.KA-45/T-1908) ... Respondents (By Pratheep K C, Advocate for R1, R2 & R3 served) This MFA is filed under Section 173(1) of MV Act against the judgment and award dated 7.9.2011 passed in MVC No.714/2011 on the file of Presiding Officer, Fast Track Court-I and Member, Additional MACT, Mysore, awarding a compensation of Rs.58,000/- with interest @ 6% p.a. from the date of petition till realization.
This MFA coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal is directed against the judgment and award dated 7.9.2011 passed in MVC No.714/2011 on the file of Presiding Officer, Fast Track Court-I and Member, Additional MACT, Mysore, wherein the learned Member had granted compensation of Rs.58,000/- together with interest at the rate of 6% p.a. from the date of petition till realization.
2. This appeal is preferred by the Insurance Company claiming that the judgment and award passed by the learned Member is liable to be set aside.
3. The incident that led to initiation of proceedings is that on 20.7.2007 at about 8.00 a.m. the minor petitioner/claimant was standing near a public borewell to collect water at Sathyagala A Kaval Village, Periyapatna. At that time, a tractor bearing Regn. No.KA-45/T-1908 came in a rash and negligent manner and dashed against the minor petitioner/claimant. Due to the impact, she fell down and sustained injuries.
4. The claim of the petitioner is resisted by the respondents. The learned Member was accommodated with the oral evidence of PWs.1 to 3, RWs.1 to 4 and documentary evidence of Exs.P1 to P14 and Exs.R1 to R10. The learned Member allowed the petition granting compensation of Rs.58,000/- with interest at 6% p.a. and directing the Insurance Company to deposit the same, which is challenged by the Insurance Company in this appeal.
5. Sri Lakshminarasappa, learned counsel for the Insurance Company would submit that the 1st respondent/petitioner has made misrepresentation only for the purpose of compensation and the intention to present the claim petition is an after thought. He would submit that the accident is said to have been happened on 20.7.2007 at about 8.00 a.m. However, a complaint was filed on 4.8.2007 i.e. after a lapse of fifteen days and even in the admission, it is stated that the history of injury is fall from the tractor, but the father of the claimant has converted it by twisting it as hit by tractor.
6. Learned counsel for the 1st respondent is absent and there is no representation.
7. The materials that were available for consideration to the learned Member are oral and documentary evidence marked as Exs.P1 to P14.
8. The only ground raised by the appellant is that the driver of the offending vehicle has no license at all. The appellant – Insurance Company, in this connection, neither has issued any notice or made any effort to produce an endorsement. In the circumstances, the submission of the learned counsel for the appellant that fall from the tractor and sustaining injuries by the infant is without any role of the tractor or its driver.
9. The petitioner/claimant sustained inter condylar fracture of humerus right upper limb. The learned Member after considering the evidence and material on record awarded a total compensation of Rs.58,000/- with interest at the rate of 6% p.a. from the date of petition till realization. The learned Member has
10. The compensation that was awarded is Rs.58,000/- under different heads. The claimant is a minor and she was aged 13 years as on the date of filing of the claim petition, which was registered as MVC No.714/2011, she must be nine years as on the date of accident. The 1st respondent/ claimant is not in appeal for enhancement of compensation. The disability is stated to be 24% to the limb. Considering the nature of injuries and tender age and in view of the decision of the Hon’ble Supreme Court in the case of AIR 2014 SC 736 in the case of Master Mallikarjun –vs- Divisional Manager, The National Insurance Company Limited and Anr., just and fair compensation should have been granted is not less than Rs.1,00,000/-. Hence, the 1st respondent/claimant is entitled for a compensation of Rs.1,00,000/- The learned Member has erred in assessing the compensation. The same is liable to be modified for the purpose of enhancement.
The appeal is dismissed. However, the compensation is enhanced from Rs.58,000/- to Rs.1,00,000/-.
The judgment and award dated 21.11.2008 passed in MVC No.714/2011 on the file of Presiding Officer, Fast Track Court-I and Member, Additional MACT, Mysore, is modified awarding the enhanced compensation of Rs.42,000/- with interest at 6% p.a. from the date of petition till its realization.
Insurance Company is directed to deposit the compensation amount, including the enhanced compensation with interest at 6% p.a. within four weeks from the date of the receipt of the copy of the order.
The amount in deposit, if any, shall be transmitted to the Tribunal forthwith.
Sd/- JUDGE Bkm.