Master Gnanashekar v. Oriental Insurance Co. , Ltd. , by its Manager
2013-09-20
N.K.PATIL
body2013
DigiLaw.ai
JUDGMENT 1. This appeal by the claimant is directed against the judgment and award dated 21st June 2008, passed in MVC No.3179/2007, by the IX Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-7, Bangalore (SCCH-7), (for short, 'Tribunal') for enhancement of compensation on the ground that, the compensation of Rs.60,000/- with interest @ 6% p.a. awarded in favour of the claimant as against his claim for Rs.5,00,000/-, is inadequate. 2. The appellant claims to be a minor aged about 6 ½ years, represented by his natural guardian, father and hale and healthy prior to the date of accident. That the occurrence of accident of the appellant at about 10:00 P.M, on 07-03-2007, when the appellant was standing along with his father, to cross the road on K.G. Nagar Main Road, due to rash and negligent riding by the rider of Motor Cycle bearing Registration No.KA- 12/II-1226, is not in dispute. It is also not in dispute that the appellant has sustained fracture to both bones of lower one third of right leg and the same is grievous in nature. Immediately he was shifted to KIMS Hospital, where he was treated as in-patient. 3. It is his further case that, on account of the injuries sustained in the accident, he has undergone severe pain and agony and for the treatment of the said injuries, his parents have spent reasonable amount towards conveyance, nourishing food and attendant charges including medical expenses and other incidental expenses and therefore, he has to be compensated reasonably. 4. On account of the injuries sustained in the accident, the appellant filed the claim petition under Section 166 of the Motor Vehicles Act, before the Tribunal, seeking compensation of a sum of Rs.5,00,000/- against the respondents. The said claim petition had come up for consideration before the Tribunal on 21st June, 2008. The Tribunal, after considering the relevant material available on file and after appreciation of the oral and documentary evidence, allowed the claim petition in part, awarding a sum of Rs.60,000/- under different heads, with interest at 6% per annum from the date of petition till the date of realization. Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 5.
Being dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant is in appeal before this Court, seeking enhancement of compensation. 5. I have gone through the grounds urged in the memorandum of appeal and the impugned judgment and award passed by Tribunal and heard the learned counsel appearing for the Insurer. 6. It is contended by the learned counsel appearing for appellant in the memorandum of appeal that, the Tribunal grossly erred in not awarding reasonable compensation under all the heads and totally failed to take note of the fact that the appellant was a minor boy, aged about 7 years and he sustained fracture of both the bones of right leg in a road traffic accident and he was admitted to KIMS Hospital for six days and also took follow-up treatment for about three months. Further, it is stated that the parents of the appellant have spent nearly Rs.30,000/- towards medical and other incidental expenses, but the Tribunal has erred in awarding only a sum of Rs.5,000/- under the said head. Further, it is stated that the appellant was studying in the 2nd Standard in Amba Bhavani School and could not attend to classes and lost one academic year, but the Tribunal has failed to award any compensation towards loss of one academic year. Further, it is the specific contention of the appellant that the Orthopedic Surgeon, PW2 has deposed that the appellant has suffered permanent disability of 30% to the right leg and 10% of the whole body and the appellant is unable to walk, run, squat and take part in sports. Ignoring this evidence of the Doctor, the Tribunal has erroneously awarded a meager amount of Rs.15,000/- towards loss of amenities, discomfort and unhappiness and the same is liable to be enhanced. Therefore, it is the case of the appellant that reasonable compensation may be enhanced by modifying the impugned judgment and award passed by Tribunal. 7. As against these contentions of the appellant taken in the memorandum of appeal, learned counsel appearing for Insurer vehemently submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file has awarded just and reasonable compensation for the injuries sustained by the appellant and hence, interference in the same is not called for. 8.
7. As against these contentions of the appellant taken in the memorandum of appeal, learned counsel appearing for Insurer vehemently submitted that the Tribunal, after critical evaluation of the oral and documentary evidence available on file has awarded just and reasonable compensation for the injuries sustained by the appellant and hence, interference in the same is not called for. 8. After careful perusal of the impugned judgment and award passed by Tribunal, after going through the grounds urged in the memorandum of appeal and after hearing the learned counsel appearing for Insurer, it can be seen that, occurrence of accident and the resultant injuries sustained by the appellant are not in dispute. It is also not in dispute that the appellant was a minor boy aged about 6 ½ years at the time of accident and studying II standard. Because of the accidental injuries, he would have missed lot of classes and would not have performed as per the expectation. Further, it is also not disputed that the injury sustained by appellant is grievous in nature. Further, it can be seen that the Doctor has deposed that when he examined the appellant latest, he found that there is painful limp, wasting of muscles right lower limb, restriction of joint movements of right knee and thus he has assessed the disability to an extent of 30% towards right lower limb and 10% towards whole body. But, the Tribunal has not awarded any compensation towards disability on the ground that admittedly, the appellant is a very young boy of 6 or 7 years old at the time of accident and in all probabilities, restriction of joint movements of right knee is likely to be vanished or reduced considerably and thereby he may not have any disability as opined by the Doctor. But, the fact remains that the appellant being aged about only 6 o 7 years, has to endure this disability, though not in this magnitude, for the rest of his life and he may have to face future difficulties on account of these injuries and would definitely lose lot of amenities in life and may have to face discomforts in future and may also find it difficult to participate in sports and other outdoor activities.
Therefore, having regard to the nature of injuries sustained, age, nature and duration of treatment, percentage of functional and whole body disability assessed by Doctor and also the fact that the appellant was a minor at the time of accident and would be denied of lot of amenities in future, I deem it fit to award a global compensation of a sum of Rs.25,000/-, with interest at 6% per annum, in addition to the compensation awarded by Tribunal. 9. In the light of the facts and circumstances of the case, as stated above, the appeal filed by appellant is allowed in part. The impugned judgment and award dated 21st June 2008, passed in MVC No.3179/2007, by the IX Additional Judge, Court of Small Causes, Member, Motor Accident Claims Tribunal-7, Bangalore (SCCH-7), is hereby modified, awarding compensation of a sum of Rs.25,000/-, with interest at 6% per annum, from the date of petition till the date of realization, in addition to the compensation awarded by Tribunal. The first respondent -Insurer is directed to deposit the enhanced compensation of Rs.25,000/-, with interest thereon at 6% per annum, from the date of petition till the date of realization, within three weeks from the date of receipt of copy of the judgment. On such deposit by the Insurer, the entire sum shall be released in favour of the appellant, immediately. Office to draw award, accordingly.