IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT M.F.A.No.1999/2014 [MV] BETWEEN:
SUBHASH S/O LATE SUBRAMANI, AGED ABOUT 12 YEARS, SINCE MINOR, REPRESENTED BY NATURAL GUARDIAN AND MOTHER, SMT.KALAVATHI, W/O LATE SUBRAMANI, AGED ABOUT 36 YEARS, R/O TAMIL COLONY, BESAGARAHALLY VILLAGE, KOPPA HOBLI, MADDUR TALUK, MANDYA-571401.
...APPELLANT (BY SRI. MARI GOWDA, ADV.) AND:
1. SRI C VENKATARAMU S/O CHIKKAMOGEGOWDA, AGED ABOUT 37 YEARS, R/O HIREGOWDANADODDI VILLAGE, BESAGARAHALLY POST, KOPPA HOBLI, MADDUR TALUK, MANDYA-571401.
2. THE MANAGER (LEGAL) IFFCO TOKIO GENERAL INSURANCE CO.LTD., NO.41, 2ND FLOOR, CRISTU COMPLEX, LEVELLE ROAD, BANGALORE-560001.
…RESPONDENTS (BY SRI.H N KESHAVA PRASHANTH, ADV. FOR R2 NOTICE TO R1 D/W V/O DT:13.01.2015) THIS M.F.A. FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 01.08.2013 PASSED IN MVC NO.928/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, MACT, MADDUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The claimant is in appeal, being not satisfied with the quantum of compensation awarded under the judgment and award dated 01.08.2013 passed in MVC No.928/2012 on the file of the Senior Civil Judge and Motor Accident Claims Tribunal, Maddur (hereinafter referred to as 'the Tribunal' for short), praying for enhancement of compensation.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the injuries suffered in a road traffic accident. The claimant is a minor of age 10 years as on the date of accident. It is stated that on 07.09.2011, when the claimant was sitting in front of his house, a sand loaded Tractor bearing registration No.KA-11/T-9715-9716, after unloading, the driver of the Tractor took the vehicle reverse in a rash and negligent manner and dashed to the claimant. Due to which, the claimant sustained grievous injuries. Immediately, he was shifted to Government Hospital, Maddur and thereafter to General Hospital, Mandya for further treatment. He was inpatient for a period of 32 days and undergone surgery on two occasions.
3. On issuance of notice, respondent No.1 remained absent. Respondent No.2/Insurer appeared and filed its statement, denying the claim petition averments. It is also stated that the compensation claimed is excessive and exorbitant. However, they admitted the issuance of insurance policy and stated that the claim would be subject to terms and conditions of the Policy. It is also stated that the driver of the vehicle had no valid and effective driving license as on the date of accident. The alleged accident occurred solely due to the negligence of the claimant and not due to the negligence of the driver of the Tractor.
4. On behalf of the claimant, his mother was examined as P.W.1 and one more witness P.W.2 was examined, apart from marking Ex.P1 to Ex.P11. The respondent/insurer examined R.W.1 and marked copy of the insurance policy as Ex.R1.
5. The Tribunal, based on the material on record awarded total compensation of Rs.72,000/- with interest at the rate of 6% p.a., from the date of petition till realization on the following heads:
1. Pain and suffering :: Rs.35,000/-
2. Medical expenses and other expenses :: Rs.12,000/-
3. Loss of amenities :: Rs.25,000/-
Total Rs.72,000/-
The claimant not being satisfied with the quantum of compensation is before this Court in this appeal.
6. Heard the learned counsel for the appellant and learned counsel for the respondent/insurer. Perused the material on record.
7. Learned counsel for the appellant would submit that the claimant is a boy of age 10 years and he has suffered fracture of femur and he was inpatient for a period of 32 days for treatment and he has undergone two surgeries on different dates. It is his submission that the Tribunal has failed to award appropriate compensation on the head of conveyance charges, attendant charges, food and nourishment and loss of income of the parents during the period of treatment, as inpatient for nearly 32 days. The accident is of the year 2011 and the expenses incurred by the parents of the claimant is more than what is awarded by the Tribunal. He submits that the claimant has placed on record Ex.P4-wound certificate, Ex.P6-medical report and Ex.P10 two case sheets, which would indicate the injuries suffered and treatment taken by the claimant. Thus, he prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent/insurer would submit that the compensation 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 and as such the compensation awarded by the Tribunal is fair and proper. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the material on record, the only point which falls for consideration in the facts and circumstances of the case as to whether the claimant would be entitled for enhanced compensation?
10. Answer to the above point is in the affirmative for the following reasons:
The accident occurred on 07.09.2011 involving the Tractor bearing registration No.KA-11/T-9715-9516 and the accidental injuries suffered by the claimant are not in dispute in this appeal. Claimant’s appeal is for enhancement of compensation. Admittedly, the claimant was aged 10 years as on the date of accident. The claimant has placed on record Ex.P4-wound certificate, Ex.P6-medical report and Ex.P10-two case sheets. The claimant has sustained fracture of shaft of femur of right side. Initially he was inpatient from 07.09.2011 to 19.09.2011 and subsequently from 13.02.2012 to 02.03.2012. Looking to the nature of injuries suffered, treatment taken as inpatient for 32 days on two intervals and the medical records, the claimant would be entitled for compensation on the head of conveyance, attendant charges, food and nourishment and loss of income of the parents during the treatment period. Thus, the claimant would be entitled for the following modified compensation:
Thus, the claimant would be entitled to total compensation of Rs.1,12,000/- with interest at the rate of 6% p.a., from the date of petition till realization, as against Rs.72,000/- awarded by the Tribunal.
11. Accordingly, the appeal is allowed in part. The judgment and award dated 01.08.2013 passed in MVC No.928/2012 on the file of the Senior Civil Judge and Motor Accident Claims Tribunal, Maddur is hereby modified to the above extent and the claimant would be entitled to enhanced compensation of Rs.40,000/-.
Sd/-
JUDGE mpk/-* CT:bms