Sandeep Joshi vs Shyamlal and others

Hon''ble Shri N.K. Mody, J.—This is an appeal filed by the claimant u/s 173 of the Motor Vehicles Act against an award dated 24.1.2011 passed by 3rd Motor Accident Claims Tribunal, Dewas in Claim Case No. 78/2009. By the impugned award, the Claims Tribunal has awarded a total sum of Rs.41,088/-with interest to the claimant by way of compensation for the injury which he sustained in an accident. According to claimant i.e. appellant herein, the compensation awarded is on lower side and hence, need to be enhanced. It is for the enhancement in the compensation awarded by the Tribunal, the claimant has filed this appeal. So the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts / evidence adduced is made out in the compensation awarded and if so to what extent ? It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimant by the Tribunal. Secondly, none of these findings though recorded in claimant''s favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

Learned counsel for the appellant submits that appellant was aged 12 years at the time of accident, which took place on 16.5.2004. Appellant was hospitalized forty days. Appellant sustained fracture of Tibia and Fibula. Appellant was operated twice. It is submitted that learned Tribunal has awarded a sum of Rs.41,088/-, breakup of which is as under :

Rs.15,000/

Towards grievous injuries.

Rs.22,088/

Towards medical expenses.

Rs.4,000/

Towards special diet.

Rs.41,088/

Total

Learned counsel for the appellant submits that looking to the injuries sustained by the appellant, amount awarded by the learned tribunal is on lower side which deserves to be enhanced. It is submitted that appeal be allowed and amount be enhanced.

Learned counsel for respondent No. 3 submits that accident is of the year 2004, while the claim petition was filed on 22.10.2009 and there is no explanation for such inordinate delay in filing the claim petition. Learned counsel submits that appellant has not examined himself for the reasons best known while appellant was aged 12 years at the time of accident and was major at the time of evidence. It is submitted that appeal has no merits and the same be dismissed.

From perusal of the record it appears that the accident took place on 16/05/04 and the claim petition was filed on 22/10/09. Undoubtedly appellant sustained injuries in the motor accident. Appellant was aged 12 years at the time of accident and was of 16 years at the time of filing of claim petition as is evident from his statement, which was recorded for the first time on 12/10/09. Claim petition ripe for evidence on 27/01/10 when Gangaram father of appellant submitted his affidavit. Appellant did not turn up in witness box to support his case, while appellant gave his statement on oath at the time of filing of claim petition. Best reasons are known to the appellant for not entering into witness box. It is true that there is no limitation for filing the claim petition as held by Hon''ble Apex Court in the matter of Dhannalal Vs. D.P. Vijayvargiya and Others, but at the same time since appellant did not file claim petition for a long period of five years, it shows that the injuries sustained by the appellant has not caused any permanent disability.

Keeping in view the injuries sustained by the appellant, this Court is of the view that a case of marginal enhancement is made out. In my opinion it will be proper to enhance the compensation by Rs.20,000/-. Hence, appellant shall be entitled for a total sum of Rs.61,088/-instead of Rs.41,088/-for the injuries sustained by him in a motor accident. The enhanced amount of Rs.20,000/-shall carry interest @ 8% P.A. from the date of application. This order shall be executable upon payment of proportionate Court fees on the enhanced amount. The Court fees be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellants'' counsel shall provide certified copy of memo of costs to the counsel for Insurance Company. The Insurance Company thereafter shall deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of Cost. Failure to comply with the aforesaid direction no interest would be payable on the enhanced amount from the date of order till the Court fees is actually paid and memo of costs is supplied to counsel for Insurance Company. With the aforesaid modification the appeal stands disposed of. No order as to costs.