IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL MISCELLANEOUS FIRST APPEAL NO.4319/2012 (MV) BETWEEN:
SRI MANOJKUMAR @ MANOJ S/O SIDDARAJU AGED ABOUT 15 YEARS REP.BY HIS LEGAL GURARDIAN FATHER SIDDARAJU S/O MARALLI PUTTAMADAIAH AGED ABOUT 48 YEARS R/AT HEGGAVADI VILLAGE BENDARAVADI POST, HARAVE HOBLI CHAMARAJNAGAR TALUK AND DISTRICT … APPELLANT (BY SRI KIRAN C.V., ADVOCATE FOR SRI DESHRAJ & SRI P.CHANGALARAYA REDDY, ADVS.) AND:
1. THOMAS OLIVARA S/O HUGGA OLIVARA MAJOR R/AT CHRISTIAN COLONY D.NO.80, B.R.HILLS ROAD CHAMARAJANAGAR 2. BRANCH MANAGER ICIC LOMBARD GENERAL INSURANCE COMPANY LTD ZENITH HOUSE KESHAV RAO KHADE MARG MAHALAXMI, MUMBAI – 400 034 BRANCH OFFICE AT CHAMARARAJNAGAR … RESPONDENTS (BY SRI H.N.KESHAVA PRASHANTH, ADVOCATE FOR R2; NOTICE TO R1 HELD SUFFICIENT VIDE ORDER DATED 28.08.2013) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED 15.12.2010 PASSED BY THE DISTRICT AND SESSIONS JUDGE AND MACT, CHAMARAJANAGAR IN MVC NO.64/2009 AND ENHANCE THE COMPENSATION FROM RS.1,51,700/- TO RS.12.90,000/- WITH INTEREST AT 12% PER ANNUM THIS MFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal arises out of judgment and award dated 15.12.2010 passed by the District Judge, MACT, Chamarajanagar in MVC No.64/2009.
2. On 08.01.2009, at about 5.00 p.m. when claimant aged 12 years was proceeding near Krishna Bakery at New Private Bus stand road, Chamarajanagar, driver of the goods auto rickshaw bearing No.KA-10-3091 hit him and caused the accident. As per evidence of PW2 the doctor, in the accident, claimant suffered fracture of tibia and tibula, tibiavera defarmity, wasting of muscles, restricted movement of right lower tibia, shortening of the length of right leg. Claimant’s right lower limb was crushed and he was treated in K.R.Hospital, Mysore from 09.01.2009 to 05.03.2009 and 25.06.2009 to 09.07.2009. In K.R.Hospital, he underwent surgery for implantation of fractured bone and removal of implantation.
3. He filed claim petition through his next friend claiming compensation of 12,90,000/-. He adduced evidence of his father as PW.1 and PW.2 doctor who treated him. The offending vehicle was owned and driven by respondent No.1 at the time of accident and insured with respondent No.1.
4. Owner and insurer contested the petition denying rashness and negligence on part of respondent No.1, injuries suffered by victim, his disability etc. Insurer further claimed that respondent No.1 was not holding valid driving licence. Therefore, it was not liable to pay the compensation.
5. The Tribunal on appreciating the evidence held that accident occurred due to rash and negligent driving by respondent No.1 and claimant suffered the aforementioned injuries and underwent treatment as aforesaid.
6. Based on doctor’s evidence, the Tribunal found that the victim suffered 26% permanent disability to the whole body. However, Tribunal finds that claimant is minor without any earning and compensation cannot be computed on structured formula basis and he has to be paid global compensation towards future income. Ultimately, the Tribunal awarded compensation in different heads as follows:-
7. Learned Counsel for appellant-claimant relying upon the judgment of the Hon’ble Supreme Court in Kiran v. Sajjan Singh [(2015) 1 SCC 539] submits that compensation awarded on all the heads is on lower side.
He further submits that claimant is also entitled for future medical expenses.
8. Findings of the Tribunal with regard to injuries and disability are not challenged by the respondents in appeal or by filing cross objections. At the time of accident, victim was student aged 12 years. Evidence of PW 2 and medical documents show that claimant had suffered 26% permanent physical disability and he needed further treatment also.
9. Under these circumstances this case is fully covered under Kiran’s case referred to supra and it is just and appropriate to pay compensation as follows:
Sl.
No.
Particulars Amount in Rs.
1 Pain and sufferings 1,00,000/-
2 Non pecuniary heads/ permanent disability, loss of amenities 3,00,000/-
3 Agony to parents 25,000/-
4 Future medical expenses 25,000/-
5 Food, nourishment and attendant charges 10,200/-
6 Medical expenses incurred 16,500/-
Total compensation 4,76,700/-
10. Respondent No.2 the insurer is liable to pay aforesaid compensation with interest thereon at 6% per annum. Since, there was delay of 402 days filing the appeal, while condoning delay, this Court held that in case, the appellant succeeds in appeal, respondents are not liable to pay interest on the delayed period. The award of the Tribunal stands modified as follows:
Respondent No.2 shall pay a sum of Rs.4,76,700/- with interest thereon at 6% per annum from the date of petition till its realization minus the amount deposited if any, interest for a period of 402 days.
The award regarding investment in fixed deposit is maintained.
Sd/- JUDGE KSR