Mohan Kumar vs The Manager
2021 Latest Caselaw 25 Kant

                           1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 4TH DAY OF JANUARY 2021

                        BEFORE

     THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY

 MISCELLANEOUS FIRST APPEAL NO.4025 OF 2017 (MV)


BETWEEN:

MOHAN KUMAR,
S/O. RAMESH,
AGED ABOUT 17 YEARS,
R/O. RAJAGHATTA VILLAGE,
KASABA HOBLI,
HASSAN TALUK AND
DISTRICT- 573 201.

THE APPELLANT IS BEING MINOR
REP. BY HIS NATURAL GUARDIAN
FATHER BY NAME
RAMESH
S/O. NINGEGOWDA
AGED ABOUT 48 YEARS.
                                       ... APPELLANT
[BY SRI. GIRISH B. BALADARE, ADVOCATE [PHYSICAL
HEARING]


AND:

1.    THE MANAGER,
      THE NATIONAL INSURANCE CO., LTD.,
      1ST FLOOR, MANJUNATHA COMPLEX,
      OLD BUS STAND ROAD,
      HASSAN - 573 201.
                             2



2.   VASU B.,
     S/O. BASAVARAJU,
     AGED ABOUT 38 YEARS,
     R/O. BOMMANAIKNAHALLI VILLAGE,
     HOSAKOPPALU POST,
     KASABA HOBLI,
     HASSAN TALUK AND
     DISTRICT - 573 201
                                 ... RESPONDENTS

[BY SRI. ASHOK N. PATIL, ADVOCATE
FOR RESPONDENT NO.1;
VIDE ORDER DATED 29.11.2018 NOTICE TO R-2 IS
DISPENSED WITH.]


     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT,
1988 AGAINST THE JUDGMENT AND AWARD DATED
17.08.2016 PASSED IN M.V.C.NO.284/2015 ON THE FILE
OF THE II ADDL. SENIOR CIVIL JUDGE AND MACT AT
HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


                      JUDGMENT

Though this appeal is listed for admission, with the

consent of learned Counsel for the parties, it is taken up

for final disposal.

2. This appeal is filed by the claimant seeking

enhancement of compensation awarded by the II

Additional Senior Civil Judge and MACT, Hassan,

(henceforth referred as 'Tribunal') in MVC No.284/2015

dated 17.8.2016.

3. The impugned judgment and award discloses that

the claimant was a student aged 15 years. On 7.12.2014

at about 2.00 p.m., when the claimant was returning from

Kalabhavan, Hassan City, after attending annual

celebration of the school, towards Hassan railway station,

the rider of a motor bike bearing registration No.KA-13-Y-

2626 (henceforth referred as offending vehicle) dashed

against the claimant. As a result, the claimant suffered

grievous injuries on his leg, foot, head and other parts of

the body. He was shifted to Janapriya Hospital, Hassan,

wherein he underwent treatment for a period of one

month. He claimed that his parents spent a sum of

Rs.2,00,000/- for his treatment. He claimed that as a

result of injuries sustained, he was prevented from

participating in sports and other extra curricular activities.

The claimant filed a claim petition under Section 166 of

Motor Vehicles Act, 1988, claiming compensation of

Rs.8,00,000/- from the owner and insurer of the offending

vehicle.

4. The insurer of the offending vehicle contested the

claim petition and contended that it was the claimant who

was negligent and responsible for the accident and

therefore, it was not liable to pay any compensation. The

owner did not contest the proceedings. The claimant

examined one Sri Ramesh as P.W.1 and a doctor as P.W.2

and got marked the documents as per Exs.P.1 to P. 29 and

Exs.C.1 to C.5. The insurance company has neither

examined any witness nor marked the documents on its

behalf.

5. The Tribunal after considering the evidence on

record, awarded compensation of Rs.2,34,258/- along with

interest at 8% p.a. from the date of petition till realization.

The claimant has filed this appeal challenging the quantum

of compensation awarded by the Tribunal.

6. Learned Counsel for the appellant contended that

having regard to the nature of injuries sustained by the

claimant, the Tribunal ought to have considered his claim

and ought to have awarded just compensation.

7. Per contra, learned Counsel for the respondent-

insurer supported the impugned judgment and award

passed by the Tribunal and claimed that the Tribunal is not

justified in awarding interest at 8% p.a.

8. The occurrence of the accident in question is not

in dispute. It is noticed that as a result of the accident,

the claimant had suffered fracture of tibia condyle right,

haemarthesis right knee and tenderness right ankle and

right leg. The claimant had spent Rs.1,04,358/- towards

medical expenses. The records placed by P.W.2 indicated

that the claimant was an inpatient between 7.12.2014 and

13.12.2014. The evidence of P.W.2 discloses that on

24.6.2016 when the claimant was examined, he noticed

the loss of muscle strength, pain, deformities, contractures

and loss of sensation, and he assessed the disability to the

right lower limb at 30%. The Tribunal, therefore, awarded

compensation under the following heads:

Medical expenses, Attendant charges, Rs.1,14,358.00 Conveyance and miscellaneous expenses

Pain and Sufferings already Rs.1,00,000.00 undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and loss of amenities in life on account of permanent disability

Discomfort, Inconvenience and loss of Rs. 20,000.00 earnings to the parents during the period of hospitalization

Total Rs. 2,34,354.00

9. It is noticed that P.W.2 deposed that the claimant

had suffered disability of 30% to the right limb and as per

the guidelines of Alymco, the disability to the whole body

is calculated at 10%. It is deposed by P.W.2 that the

claimant had to undergo further treatment which requires

further expense. The insurer did not dispute the injuries

sustained by the claimant. Therefore, having regard to the

age of the claimant and further treatment for the injuries

sustained by him, the Tribunal ought to have awarded

adequate compensation and also compensation towards

future medical expenses.

10. In addition, it is also seen that the parents of

the claimant have lost their earnings and have also

suffered discomfort and inconvenience due to the accident

in question. Therefore, as held by the Apex Court in case

of MASTER MALLIKARJUN VS. DIVISIONAL

MANAGER, THE NATIONAL INSURANCE COMPANY

LIMITED AND ANOTHER reported in AIR 2014 SC 736,

the parents of the claimant are also entitled to adequate

compensation towards loss sustained to them. In that

view of the matter, the compensation awarded by the

Tribunal is enhanced by another sum of Rs.65,000/- which

could be rounded off to Rs.3,00,000/-.

11. Hence, the following order:

      (i)     The appeal is allowed in part.

      (ii)    The compensation of Rs.2,34,358/- awarded

by the Tribunal is enhanced to Rs.3,00,000/- along with

interest at 6% p.a. from the date of petition till realization.

(iii) The insurer shall deposit the amount of

Rs.3,00,000/- along with interest at 6% p.a. from the date

of petition till realization within one month.

Sd/-

JUDGE

Cs