Master Srinivas vs Sri. Athik Khan S
2022 Latest Caselaw 8528 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 10TH DAY OF JUNE 2022

                          BEFORE

     THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD

                MFA No.5342 OF 2020 (MV)

BETWEEN:

Master Srinivas,
S/o Narayana,
Aged about 13 years,
R/at Ward No.26,
Near Anganawadi, Ijoor,
Ramanagara Taluk,
Ramanagara District,
Since Appellant is Minor
Represented by his mother and
Natural guardian Mrs. Mahadevamma,
W/o Narayana,
Aged about 34 years.                          ... Appellant

(By Sri.Raju S., Advocate)

AND:

1.     Sri. Athik Khan S.,
       S/o Soukath Ali Khan,
       R/at. No.26, 1st Floor,
       Ijoor Mohalla,
       Ramanagara Town,
       Ramanagara district-572159.

2.     The United India Insurance Co. Ltd.,
       First Floor, RVR Complex,
       In front of LIC Office,
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     Behind KSRTC Bus Stand,
     Ijoor, Ramanagara-562159,
     Rep. by its Branch Manager.        ... Respondents

(By Smt. Y. Aruna, Advocate for R2;
Notice to R1 is served and unrepresented)

       This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated: 04.03.2020
passed in MVC No.594/2015 on the file of the         III
Additional District and Sessions Judge and Member,
Additional MACT, Ramanagara partly allowing the claim
petition for compensation and seeking enhancement of
compensation.

      This MFA, coming on for admission, this day, this
Court, delivered the following:

                    JUDGMENT

This appeal under Section 173(1) of Motor

Vehicles Act, 1988 (hereinafter referred to as 'the

Act') has been filed by the claimant being aggrieved

by the judgment and decree dated 04.03.2020 passed

by MACT, Ramanagara in MVC No.594/2015.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 23.10.2015 at about 6.00

p.m. the claimant was proceeding by walk along with

his mother on the left side of the road near Temple of

Lord Malleshwara, Water Tank road, Ramanagara. At

that time, a motorcycle bearing registration No.KA-

42/Q-1136 being ridden by its rider at a high speed

and in a rash and negligent manner, dashed to the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondent No.2

appeared through counsel and filed written statement

in which the averments made in the petition were

denied. The age, avocation of the claimant and the

medical expenses are denied. It was pleaded that the

petition itself is false and frivolous in the eye of law.

It was further pleaded that the accident was due to

the negligence of the claimant himself. It was further

pleaded that the driver of the offending vehicle did not

have valid driving licence as on the date of the

accident. It was further pleaded that the liability is

subject to terms and conditions of the policy. It was

further pleaded that the quantum of compensation

claimed by the claimant is exorbitant. Hence, he

sought for dismissal of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and was placed

ex-parte.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The guardian - mother of the

claimant was examined as PW-1 and

Dr.Venkataramkumar was examined as PW-2 and got

exhibited documents namely Ex.P1 to Ex.P24. On

behalf of the respondents, neither any witness was

examined nor got exhibited documents. The Claims

Tribunal, by the impugned judgment, inter alia, held

that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver,

as a result of which, the claimant sustained injuries.

The Tribunal further held that the claimant is entitled

to a compensation of Rs.3,60,000/- along with

interest at the rate of 6% p.a. and directed the

Insurance Company to deposit the compensation

amount along with interest. Being aggrieved, this

appeal has been filed.

6. The learned counsel for the claimant has

contended that due to the accident the claimant has

suffered grievous injuries, the Tribunal has assessed

the whole body disability as 14%. As per the law laid

down by the Hon'ble Apex Court in the case of

MASTER MALLIKARJUN -vs- DIVISIONAL

MANAGER, NATIONAL INSURANCE COMPANY

LIMITED AND ANOTHER reported in (2014) 14

SCC 396, the Tribunal while assessing the

compensation has failed to grant any compensation

for 'discomfort, conveyance and loss of earnings to

parents during the period of hospitalization'. Hence,

he sought for enhancement of compensation.

7. On the other hand, the learned counsel for

the Insurance Company has raised following counter

contentions:

Firstly, since the claimant was a minor, the

disability assessed by the Tribunal at 14% is on the

higher side.

Secondly, the Tribunal after considering the

judgment of the Hon'ble Apex court in the case of

MALLIKARJUN (supra) has granted just and

reasonable compensation. Hence, sought for dismissal

of the appeal.

8. Heard the learned counsel for the parties

and perused the judgment and award.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The Tribunal after considering the evidence of

the parties and the evidence of the doctor - PW2 has

rightly assessed the whole body disability as 14%.

Since the claimant was a minor the Hon'ble Apex

Court in the case of MALLIKARJUN (supra), while

assessing the compensation has also granted

Rs.25,000/- towards 'discomfort, conveyance and loss

of earnings to parents during hospitalization'. But the

Tribunal has failed to grant the compensation under

the said head.

10. In the result, the appeal is allowed in part.

The judgment of the Claims Tribunal is modified.

In addition to the compensation awarded by the

Tribunal, the claimant is entitled to Rs.25,000/- along

with interest @ 6% p.a.

11. The claimant is entitled to a total

compensation of Rs.3,85,000/- as against

Rs.3,60,000/- awarded by the Tribunal.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment.

Sd/-

JUDGE

Cm/-