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Judgment
A.S. Pachhapure, J.—The insurer has challenged the quantum of compensation awarded and the liability imposed by the Tribunal on it in granting compensation to the first respondent for the injuries sustained in a motor vehicle accident.
The facts reveal that the accident is said to have been occurred on 04.07.2009 due to the rash and negligent driving of the motor vehicle bearing registration No. KA39/E-2969 at 7.30 p.m. In the said accident, the minor sustained injuries and he suffered disability and therefore, claim petition was filed for compensation. The Tribunal after recording the evidence has granted a sum of Rs. 64,000/- as compensation on all the heads and directed the insurer to pay the said sum. Dissatisfied with the findings on the occurrence of accident, the liability and also the quantum of compensation, the insurer has filed MFA 30737/2012, whereas the minor has filed MFA 30595/2012 seeking enhancement of compensation.
Heard the learned Counsel for both the parties.
The points that arise for my consideration are:
"1. Whether the claimant has proved the occurrence of accident on 04.07.2009 due to the rash and negligent riding of motor cycle bearing registration No. KA39/E-2969?
Whether the quantum of compensation needs any variation?"
Learned Counsel for the insurer submits that there is manipulation of the documents to prove the accident and that the vehicle in question has been falsely implicated. He submits that the insurer is not liable to pay any compensation and that the minor has not sustained any disability.
On the other hand, learned Counsel for the minor supporting the judgment and award submits that the amount granted is on the lower side and it needs enhancement.
To prove the case of accident, reliance is placed on FIR (Ex. P1), the copy of complaint (Ex. P2), copy of chargesheet (Ex. P3), the spot panchanama (Ex. P4) and the motor vehicle inspector report (Ex. P5). In addition to the oral evidence of PW1, perusal of the FIR reveals that the accident occurred on 04.07.2009 at 19.30 hours and Cr. No. 151/2009 was registered for the offence under Sections 279, 338 IPC read with Section 187 of Motor Vehicles Act. There is an endorsement by the Magistrate having received the FIR on 05.07.2009 at 10.00 a.m. Though there appears to be some correction of the month of accident as it was earlier mentioned as ''6'' and there is correction to make it as ''7'', the copy of complaint (Ex. P2) reveals the manner in which the accident occurred.
Admittedly, the injured is a minor aged 6 years. He was hit by the motor vehicle in question. While showing the number of motor cycle as KA39/E-2969, it is mentioned by the complainant as E.2969. This style of mentioning the number of vehicle itself is in my opinion is insufficient to over rule the conclusion arrived at by the learned member of the Tribunal. The Magistrate has received the FIR on 05.07.2009 at 10.00 a.m. This endorsement is sufficient to prove the registration of FIR, occurrence of accident. As even in column No. 3, the date of accident is mentioned as 04.07.2009 without any correction. There was a chargesheet against the rider about the rash and negligent riding of the motor cycle and Ex. P3 also supports the version of injured. Furthermore, the spot mahazar also of accident. So looking to this material on record, I do not find any grounds to overlook the finding of the Tribunal.
So far as the injury certificate is concerned, there appears to be some correction, wherein the date is mentioned as 05.07.2009 and it is corrected as 04.07.2009. This correction also will not have any effect on the findings, as it may be the correction done in some anxiety. Therefore, the contention of insurer that no accident has occurred cannot be accepted.
PW2 is the doctor who examined the minor and assessed the disability at 25% to the particular limb. The minor has suffered the fracture of left femur and PW2 has assessed the disability at 25%. Even if the general principle is made applicable the disability for the whole body will be 8%. PW2 is not the doctor who treated the minor. His evidence cannot be accepted as accurate at the most it may be approximate assessment of the disability. Furthermore, there was a simple fracture of the left femur. It is not either the comminuted fracture or compound fracture. There is nothing in the documents produced about the mal union. Furthermore, the evidence of PW2 reveals that there was union of bones. In this context, I think that the evidence of PW2 is exaggerated and it is just and proper to accept the disability only at 5% modifying the finding rendered by the Tribunal.
In Master Mallikarjun''s case, the Apex Court has stated that the disability in respect of minor, the compensation payable would be as per the formula referred to in the said judgment. In case, if the person has suffered disability to an extent of 10%, a sum of mental agony, physical shock, hardship, inconvenience etc., Anyhow, the Tribunal has granted the sum of Rs. 27,000/- towards loss of future earnings, a sum of Rs. 25,000/- is payable towards discomfort, inconvenience and loss of earnings of the parents during the period of hospitalization, Rs. 25,000/- was awarded towards the medical expenses for 58 days and a sum of Rs. 25,000/- was awarded for the occurrence of mal union. In fact as there is no mal union, the principle in the aforesaid judgment is not applicable in its entirety.
Anyhow, assessing the disability at 5%, a sum of Rs. 50,000/- would be payable for pain and suffering, mental agony, discomfort etc., The appellant has incurred the medical expenses to an extent of Rs. 20,000/-. The Tribunal has granted Rs. 15,000/- towards medical expenses. I think it is just and proper to payable towards the discomfort, inconvenience, to the parents and another sum of Rs. 2,000/- is payable towards food, nourishment etc., Hence, a total sum of Rs. 97,000/- would be payable as compensation to the minor for whatever loss he has suffered due to the accident in question. Deducting Rs. 64,000/- awarded by the Tribunal, the minor is entitled to Rs. 33,000/- with interest at 9% p.a. Therefore, points 1 and 2 are answered in affirmative.
Consequently, MFA 30737/2012 is dismissed and MFA 30595/2012 is allowed in part. The minor is entitled to Rs. 33,000/- as compensation with interest at 9% p.a. from the date of petition till its realization in addition to the compensation awarded by the Tribunal.