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Judgment
H.S. Kempanna, J.—Though this matter is listed for admission, with consent of learned Counsels for respective parties as records have also been received, it is taken up for final disposal.
This is claimant''s appeal seeking for enhancement of compensation in respect of the injuries which he has sustained in a motor accident.
For the sake of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the claim petition before the Tribunal.
The brief facts of the case are:
The Petitioner/claimant is aged about 8 years, student by profession. He was hale and healthy as on the date of the accident.
On 19.2.2007 at about 10 a.m. the Petitioner was traveling in the bus bearing No. KA20/1519. When the said bus came near Honaganahalli village situated on Mandya-Koppa road, on account of rash and negligent driving by the driver of the bus at a high speed in a rash and negligent manner he lost control and dashed against a goods Auto-rickshaw bearing No. KA11 5386 due to which he sustained injuries. Thereafter, he was taken to the hospital by his parents where he was got treated by spending huge money. Despite the same, he is not completely cured of his injuries, due to which he is unable to prosecutes his studies effectively. Hence, on all these grounds, the Petitioner filed his claim petition u/s 166 of the M.V. Act claiming compensation in a sum of Rs. 3,10,000/- against the Respondents.
After service of notice, the Respondents who are the owner and insurer appeared through their Counsels and contested the petition. The first, Respondent-owner contended that the accident has not taken place on account of the rash and negligent driving of the bus, owned by him, by its driver, on the other hand, it is on account of the rash and negligent driving of the Auto rickshaw by its driver. He further contended that the claim made is too exorbitant and if for any reason he is held liable as his vehicle is insured with the second Respondent, the liability to pay any compensation be saddled on the second Respondent-insurer.
The second Respondent-insurer also in their statement contended that the accident has not taken place due to the rash and negligent driving of the bus by its driver on the other hand, it is on account of the rash and negligent driving of the auto by its driver. They further contended that the driver of the offending bus did not possess valid and effective driving license, as such there is breach of conditions of policy committed by the owner. They also denied the age, occupation, injury sustained and the amount spent for the same. In the sum and substance, they contended that since the accident has not taken place due to the fault of the driver of the offending bus, they are not liable to pay any compensation. Accordingly, sought for dismissal of the petition.
On the basis of the above pleadings, the Tribunal framed the following issues:
Whether the Petitioner proves that in the accident on 19.02.2007 at about at 10 a.m. due to rash and negligent driving of the vehicle bearing No. KA.20/1519 by its driver and the Petitioner sustained injuries?
Whether the Petitioner is entitled for compensation? If so, how much and from whom?
What award or order?
In support of his case, the claimant who is a minor got examined his father, the natural guardian, as P.W. 1. He produced five documents which came to be marked as exhibits P1 to P5. On behalf of the Respondents, they have not lead any evidence, on the other hand, they have got marked the copy of the policy as Ex. R1.
The Tribunal on considering the oral and documentary evidence on record came to the conclusion that the accident in question has taken place on account of the fault of the driver of the offending bus and the claimant has established actionable negligence.
Further, the tribunal taking into account the evidence of P.W. 1. the natural guardian of the claimant and the documents produced, awarded a total compensation of Rs. 47,000/-with interest at 6% p.a. from the date of the petition till realization under various heads. It further ordered the second Respondent-insurer to pay the entire compensation with interest to the claimant.
The Appellant-claimant being aggrieved of the quantum of the compensation awarded is in appeal before this Court.
The learned Counsel for the Appellant-claimant submitted that the Tribunal has erred in not awarding just and reasonable compensation having regard to the nature of injuries that the minor claimant has sustained in the impugned accident. Hence, a case for enhancement is made out.
Per contra, the learned Counsel appearing for the second Respondent-insurer supported the judgment and award passed by the Tribunal.
Taking the rival submissions, the evidence and the documents on record, the point that arises for consideration is:
Whether the Appellant-claimant has made out a case for enhancement.
Facts are not in dispute. The minor claimant having met with accident, sustaining injury, treatment that has been taken are not in dispute. According to PW1, the father of the minor claimant, the claimant has sustained fracture of left upper 3rd of the femur. In support of the same, he has produced the wound certificate which is at Ex. P4. The Tribunal taking the same into consideration has awarded a sum of Rs. 30,000/- towards injury, pain and suffering. The same appears to be just and proper and does not call for any modification in this appeal. However, the Tribunal has awarded only a sum of Rs. 2,000/- towards medical expenses, Rs. 3,000/- towards conveyance, nourishing food and attendant charges Rs. 12,000/- towards loss of amenities. This appears to be too low in the facts and circumstances. The learned Counsel for the contesting insurer submitted that the claimant has not placed a scrap of paper to establish what exactly is the amount that has been spent for the treatment and as there is also no medical evidence on record, the claimant is not entitled to any enhancement of the compensation. However, having regard to the age of the minor boy, taking into consideration the nature of fracture i.e. fracture of upper one-third of the femur in my view, firstly the Appellant must be awarded a compensation of Rs. 20,000/- towards loss of amenities as he has to put up with the discomfort throughout his future life as against Rs. 12,000/- awarded by the Tribunal. Further, the Tribunal has awarded only a sum of Rs. 2,000/- towards medical expenses. The accident has taken place on 19.2.2007. Having regard to the nature of fracture that he has sustained, he should have taken treatment for which he must have spent some amount. Therefore, in the circumstance, it is just and proper to award a sum of Rs. 10,000/- instead of Rs. 2,000/- towards medical expenses. Further, the Tribunal has awarded only a sum of Rs. 3,000/- towards conveyance, nourishing food and attendant charges. No compensation is awarded towards attendant charges. Admittedly, the claimant is a minor boy aged about 8 years. That follows he requires some attendant for getting him treated. Taking this into consideration, I am inclined to award a further sum of 10,000/- towards conveyance, nourishing food and attendant charges as against Rs. 3,000/- awarded by the tribunal. Further, the claimant has claimed that he is a student prosecuting his studies. Without dwelling much on the same, he is awarded a sum of Rs. 7,000/- towards loss of education. Thus, in my view, the claimant is entitled to total compensation of Rs. 77,000/- with interest at 6% p.a. from the date of the petition till realization as against Rs. 47,000/- awarded by the Tribunal with interest at 6% p.a. Accordingly, the appeal has to succeed in part.
In the result, for the foregoing reasons, I proceed to pass the following order:
i) The appeal is allowed in part;
ii) The impugned judgment and award is modified and the Appellant-claimant is awarded a total compensation of Rs. 77,000/- with interest at 6% p.a. from the date of the petition till realization as against Rs. 47,000/- with interest at 6% from the date of the petition till realization. The enhanced compensation comes to Rs. 30,000/- with interest at 6% from the date of petition till realization.
iii) The second Respondent-insurer shall deposit the enhanced compensation with interest before the jurisdictional Tribunal within four weeks from the date of receipt of the copy of the judgment and award.
iv) The entire enhanced compensation with interest shall be deposited in the name of the minor Appellant-claimant in any of the nationalized/scheduled bank till he attains majority. The father who is the natural guardian of the claimant is entitled to draw the interest accrued on the said deposit periodically for the benefit of the minor claimant.
Office to draw the award accordingly.