IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.8930/2015(MV) BETWEEN:
RAMESH S/O. RAJAPPA AGED ABOUT 14 YEARS STUDENT, MINOR REP. BY HIS NATURAL GUARDIAN MOTHER LAXMAMMA W/O.RAJAPPA AGED ABOUT 47 YEARS HOUSE WIFE R/O. MALLENAHALLY VILLAGE HOSADURGA TALUK CHITRADURGA DISTRICT-577527.
...APPELLANT (BY SRI. SURESH M R, ADV.) AND:
1. MALLIKARJUNAPPA S/O.HANUMANTHAPPA AGED ABOUT 51 YEARS OWNER OF VEHICLE BEARING NO.KA-18-A6975 R/O. SANKALAPURA VILLAGE KADUR TALUK CHICKMAGALUR DISTRICT.
2. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO.LTD., M.M.K. COMPLEX AKKAMAHADEVI ROAD DAVANAGERE.
…RESPONDENTS (BY SRI.O MAHESH, ADV. FOR R2 R1- NOTICE D/W V/O DT:24.04.2018) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 12.12.2014 PASSED IN MVC NO.236/2013 ON THE FILE OF THE ITINERARY SENIOR CIVIL JUDGE & ADDL. MACT, HOSADURGA, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 12.12.2014 in MVC No.236/2013 on the file of the Itinerary Senior Civil Judge and Motor Accident Claims Tribunal at Hosadurga (hereinafter referred to as 'the Tribunal' for short).
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries sustained in a motor vehicle accident. It is stated that on 17.04.2012, when the claimant was going as a pedestrian, a Mahindra Maximo vehicle bearing registration No.KA-18/A-6975 came in a rash and negligent manner and dashed to a luggage auto and then to the claimant. Due to the impact, the claimant sustained grievous injuries all over the body. Immediately he was shifted to Government hospital, Hosadurga wherein he took treatment and also took treatment from various other hospitals.
3. On issuance of notice, respondents appeared and filed their objections denying the claim petition averments. The first respondent contended that the vehicle is insured with the second respondent/insurer. The second respondent/insurer contended that the accident occurred solely due to the rash and negligent driving of the luggage auto by its driver and not by the driver of the Mahindra Maximo. It is also contended that drivers of both the vehicles are responsible for the occurrence of the accident. Further, it is stated that the driver of the Mahindra Maximo had no valid and effective driving licence.
4. The claimant got examined himself as P.W.3 and got marked the documents Ex.P1 to Ex.P13. The respondent/insurer got marked the copy of insurance policy as Ex.R1.
5. The Tribunal, on appreciating the material on record awarded total compensation of Rs.50,000/- with interest at the rate of 8% p.a. from the date of petition till realization. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court praying for enhancement of compensation.
6. The accident occurred on 17.12.2012 involving the luggage auto bearing registration No.KA-16/B-1679 and the accidental injuries sustained by the claimant who is a minor child aged 12 years as on the date of accident is not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation.
7. Learned counsel for the appellant would submit that the claimant sustained fracture of clavicle bone and he had taken treatment as inpatient. He submits that the compensation awarded by the Tribunal at Rs.50,000/- is on the lower side when compared to the injuries sustained and treatment taken by the minor child. Relying upon a decision of the Hon’ble Apex Court in the case of MALLIKARJUN v/s DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER reported in (2014)14 SCC 396 , he submits that the claimant would be entitled for a sum of Rs.1,00,000/- as he had sustained disability due to fracture sustained in the accident. The Tribunal awarded global compensation of Rs.50,000/- without considering the loss of amenities, loss of income of the parents during the treatment period. Hence, sought for enhancement of compensation.
8. Per contra, learned counsel for the respondent/insurer submits that the global compensation of Rs.50,000/- awarded by the Tribunal is just compensation, which needs no interference. Further, he submits that the claimant has not examined the Doctor in support of his case. In the absence of Doctor’s evidence, the disability could not be assessed. Hence, the Tribunal has rightly not assessed the disability. Thus, prays for dismissal of the appeal.
9. Admitted by the claimant has not examined either the treated doctor or any other doctor to substantiate the injury or disability sustained by him. In the absence of material or evidence to assess disability, MASTER MALLIKARJUN case relied on by the counsel for the claimant would have no application to the facts of the present case. The claimant has placed on record Ex.P12/wound certificate which would disclose the injuries sustained by the claimant i.e., fracture of clavicle bone. The claimant was aged 12 years as on the date of accident. Even though the claimant has not examined the Doctor, the wound certificate would indicate the fracture sustained by the claimant and in support of his case, the claimant has placed on record the X-ray/Ex.P13. One cannot lose sight of the fact that, for the injuries sustained in the accident, the claimant would have suffered certain amount of discomfort and would have affected his studies and the parents would have also suffered loss of income during the treatment period and they would have also undergone agony. As such, I am of the opinion that the claimant would be entitled for another sum of Rs.25,000/- globally in addition to Rs.50,000/- awarded by the Tribunal. Thus, the claimant would be entitled for total compensation of Rs.75,000/- with interest at the rate of 8% p.a., from the date of petition till realization.
10. Accordingly, the appeal is allowed in part. The judgment and award dated 12.12.2013 in MVC No.236/2013 on the file of the Itinerary Senior Civil Judge and Motor Accident Claims Tribunal at Hosadurga is modified to the above extent. The claimant would be entitled to enhanced global compensation of Rs.25,000/- in addition to Rs.50,000/- awarded by the Tribunal with interest at the rate of 8% p.a.
This Court, by order dated 18.06.2019 condoned the delay of 255 days in preferring the appeal, subject to denial of interest for the delayed period in the case of enhancement of compensation. Hence, the claimant would not be entitled to interest for the delayed period of 255 days in filing the appeal, on the enhanced compensation.
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