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2013 DIGILAW 1206 (KAR)

Mischeal v. Schones Office Systems Pvt. Ltd.

2013-10-23

B.MANOHAR, DILIP B.BHOSALE

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Judgment : B. Manohar, J. 1. Appellant in this appeal is a claimant, being not satisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Belgaum (for short 'the Tribunal') by its impugned judgment and award dated 23-11-2009 in MVC No.826/2009, filed this appeal seeking for enhancement of the compensation. 2. The appellant is a minor represented by his guardian. He has contended that on 12-3-2009 he had been to his relative's house at Somwar Peth, and at about 4.30 p.m. he had been to the market to purchase some materials and after purchasing the same, while returning home by walk, in front of the Pushpanjali building in Somwar Peth, Tilakwadi, a Mahendra Scorpio bearing registration No.KA-04/MC-0031 driven by its driver in a rash and negligent manner and in a high speed dashed against the claimant. Due to the said impact, the claimant has sustained compound fracture of right tibia, degloving injury to right lower limb and other 7 injuries all over the body. He was shifted to KLE Hospital and he has undergone operation for the fracture of tibia and fibula, and external fixation was also made. Thereafter, he has undergone second operation on 30-03-2009. He was in- patient in the Hospital for more than 26 days. He has spent more than Rs.3.00 lakhs towards his treatment. The claimant was aged about 9 years at the time of accident and was studying in III Standard in St.Paul's School, Belgaum. In view of the injuries sustained in the accident, he has become a permanently disabled, his future life and educational career has been spoiled. In view of mal-union of the tibia, he cannot walk properly and he has lost happiness in the life. Hence, he filed a claim petition claiming compensation of Rs.30.00 lakhs. 3. The first Respondent who is the owner of the offending vehicle has not disputed the occurrence of the accident on 12-3-2009 at Somwar Peth, Tilakwadi, Belgaum. However, he has contended that due to the negligence on the part of the claimant, the accident has occurred and sustained injuries. The vehicle in question is fully covered by the insurance, hence sought for dismissal of the claim petition as against the first respondent. 4. However, he has contended that due to the negligence on the part of the claimant, the accident has occurred and sustained injuries. The vehicle in question is fully covered by the insurance, hence sought for dismissal of the claim petition as against the first respondent. 4. The second respondent-Insurer, in their written statement has not disputed the accident, however, contended that the driver of the vehicle did not had the valid driving license at the time of the accident and there was breach of terms and conditions of the policy. Hence, the Insurer is not liable to pay compensation to the claimant and sought for dismissal of the claim petition. 5. The guardian of the claimant got himself examined as P.W.1 and got marked the documents as Ex.P1 to Ex.P99. The Doctor who has treated the claimant was examined as P.W.2. On behalf of the respondents, they have not adduced any evidence. However, the Insurance Policy of the vehicle was marked as Ex.R1. 6. The Tribunal after considering the oral and documentary evidence let in by the parties and on considering the Police records, that the Police have registered the case in Crime No.41/2009 against the driver of the offending vehicle for the offence punishable under Sections 279 and 338 IPC read with Section 187 of the Motor Vehicles Act and also considering the Panchanama and Sketch, held that due to the rash and negligent driving of the offending vehicle by its driver, the accident has occurred and the claimant is entitled for compensation. 7. The doctor who has treated the claimant has deposed in his evidence that there is a compound fracture of right tibia, degloving injury to right lower limb extending from the tibia tuberosity to Anterio medial aspect up to ankle, injury to head and right hand. He suffered permanent physical disability to an extent of 25% of right lower limb. 8. The Tribunal taking into consideration all these aspects of the matter awarded compensation of Rs.2,96,594/- with interest at the rate of 6% p.a. under the following heads: Injury, pain and agony: : Rs. 30,000.00 Medical expenses(as per Ex.P 12 to P89) : : Rs.1,61,594.00 Loss of prospects of marriage, disfigurement and education, sports and extra curricular activities: : Rs. 25,000.00 Special Food and nutrition: : Rs. 10,000.00 Nursing, attendants, extra nourishment and conveyance : : Rs. 5,000.00 Permanent disability : : Rs. 30,000.00 Medical expenses(as per Ex.P 12 to P89) : : Rs.1,61,594.00 Loss of prospects of marriage, disfigurement and education, sports and extra curricular activities: : Rs. 25,000.00 Special Food and nutrition: : Rs. 10,000.00 Nursing, attendants, extra nourishment and conveyance : : Rs. 5,000.00 Permanent disability : : Rs. 25,000.00 Loss of expectation of life: : Rs. 10,000.00 Loss of amenities: : Rs. 30,000.00 Total : : Rs.2,96,594.00 The claimant, being not satisfied with the compensation awarded by the Tribunal, filed this appeal. 9. Sri.Harish S Maigur, learned Counsel appearing for the appellant contended that in the road traffic accident, the appellant has sustained compound fracture of right tibia and degloving injuries on the right leg and he was admitted to KLE Hospital on 12-3-2009, he was in-patient till 7-4-2009. He has undergone two operations and due to the accident, he has suffered physical and mental injuries. In view of mal-union of the tibia, he cannot lead normal life. Further he wanted to join Armed Force after completion of his education. In view of the accident, he has lost the chance to become a member of the Armed Force. The compensation awarded towards pain and agony, Special Food and nutrition, nursing, attendants and conveyance and also disability is on the lower side. In view of the accident, he has lost the marriage prospectus and he is entitled to higher compensation and sought for enhancement of compensation. 10. On the other hand, Sri.M.K.Soudagar, learned Counsel appearing for the second respondent argued in support of the judgment and award passed by the Tribunal and contended that the claimant was aged about 9 years at the time of accident. He has not discontinued his education. The Tribunal taking into consideration the entire aspects of the matter awarded fair and just compensation and sought for dismissal of the appeal. 11. We have carefully considered the arguments addressed by the parties, perused the judgment and award and the oral and documentary evidence adduced by the parties. 12. The records clearly disclose that the claimant has sustained injuries in the road traffic accident that occurred on 12-3-2009, he was in-patient in KLE Hospital for a period of 26 days and he has undergone two operations. The rod was inserted and external fixation has been made. 12. The records clearly disclose that the claimant has sustained injuries in the road traffic accident that occurred on 12-3-2009, he was in-patient in KLE Hospital for a period of 26 days and he has undergone two operations. The rod was inserted and external fixation has been made. The Police records clearly disclose that due to the rash and negligent driving of the offending vehicle by its driver, the claimant has sustained injuries. The doctor who has treated the claimant has deposed in his evidence that inspite of two surgeries, the claimant cannot walk properly due to the malunion. Due to the degloving injury to right leg, he has become very weak. He has assessed the disability of 25% in respect of the right lower limb. He has to pull-on with that disability through out his life. The compensation awarded towards injuries, pain and agony is on the lower side. The appellant has undergone two operations, he was inpatient for a period of 26 days, and he has taken follow-up treatment. Further, the compensation on the head of Special Food and nutrition, nursing, attendant and conveyance is also on the lower side. The future loss of earnings is not awarded to the appellant. In the absence of the same, Rs.25,000/-awarded towards permanent disability is on the lower side. Hence, the claimant is entitled for higher compensation. Accordingly, we are inclined to award additional sum of Rs.40,000/- towards pain and suffering, a sum of Rs.15,000/- towards the Special Food and nutrition, Rs.5,000/-towards attendant and conveyance charges and a sum of Rs.25,000/- towards permanent disability. In all, the claimant is entitled for enhanced compensation of Rs.85,000/- with interest at the rate of 6% p.a. Accordingly, we pass the following: ORDER The appeal is allowed in part. The judgment and award dated 23-11-2009 MVC No.826/2009 passed by the MACT, Belgaum is modified. The appellant is entitled for enhanced compensation of Rs.85,000/-with interest at the rate of 6% p.a. from the date of filing of the claim petition. Out of the enhanced compensation, 50% of the amount with proportionate interest shall be deposited in the Fixed Deposit in any Nationalized Bank, till he attains the age of majority. The remaining amount with proportionate interest shall be released in favour of the guardian of the appellant.