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2019 DIGILAW 1221 (KAR)

Kum. Nagashree N. v. United India Insurance Co. Ltd.

2019-06-12

K.SOMASHEKAR

body2019
JUDGMENT : K. Somashekar, J. 1. Though this appeal is listed for admission, with the consent of the learned counsel for the appellant and the learned counsel for the respondent, the matter is taken up for final disposal. 2. This appeal is preferred by the claimant seeking for enhancement of compensation awarded by the Tribunal in MVC No. 6402/2011 dated 26.05.2014, whereby the Tribunal has awarded the compensation in a sum of Rs. 1,87,000/- with interest at 6% per annum from the date of petition till the date of deposit. 3. The factual matrix of the case is as under: It is stated in the claim petition that on 31.07.2011 at about 7.15 p.m. when the claimant Kum. Nagashree N. aged about 10 years was proceeding on the side of Sri Ganesha Temple Road, Shastrinagar, T.R. Nagar, Bengaluru, one Suzuki Access vehicle bearing Reg. No. KA-01-EM-2463 being driven at a high speed in a rash and negligent manner dashed against the claimant and as a result of the accident, the claimant fell down and sustained grievous injuries. She took treatment in the hospital and was hospitalized for nine days and huge amount has been incurred by her parents for her treatment. The injured being a school going girl, due to the accidental injuries, is suffering from disability and discomfort-ness. The claimant represented by her father, the natural guardian, preferred a claim petition before the Tribunal seeking compensation. 4. Upon service of notice of the claim petition, the respondent No. 2 being the owner of the offending vehicle remained ex-parte. Respondent No. 1 said to be the Insurance Company has appeared through their counsel and filed written statement resisting the claim petition. They contended that there is no negligent act of the driver of the offending vehicle. Urging these grounds, they sought for dismissal of the claim petition. But the insurance policy in respect of the offending vehicle and its validity as on the date of the accident, was admitted. 5. Based on the pleadings of the parties, the Tribunal has framed the issues. On behalf of the claimant, the father of the claimant examined himself as PW-1 and got examined Dr. Chidanand K.J.C. as PW-2 and got marked documents at Ex.P1 to Ex.P14. The respondents have neither examined any witness nor got marked any documents. 6. 5. Based on the pleadings of the parties, the Tribunal has framed the issues. On behalf of the claimant, the father of the claimant examined himself as PW-1 and got examined Dr. Chidanand K.J.C. as PW-2 and got marked documents at Ex.P1 to Ex.P14. The respondents have neither examined any witness nor got marked any documents. 6. On evaluating the entire oral and documentary evidence placed on record, the Tribunal has awarded the compensation in a sum of Rs. 1,87,000/- with interest at 6% per annum from the date of petition till the date of deposit. 7. Sri. Nagaraja Reddy D. learned counsel for appellant has taken me through the evidence of PW-1 and contended that the claimant/injured has sustained fracture of both bones of left leg, fracture shaft mid 1/3rd of left tibia with small punctured cut wound mid 1/3rd post aspect of leg and other injuries all over the body. He further contended that the injured was a school going girl aged about 10 years and after taking treatment, she was under bed rest for six months. According to him, these are the things that were required to be appreciated by the Tribunal in a proper perspective in order to award compensation suitably. But the Tribunal has awarded inadequate compensation. It is further contended that there shall be no future prospects of marriage of the injured. This vital fact is required to be considered in this appeal where her parents have a greater responsibility to bring up the minor child who has suffered the above referred grievous injuries. 8. In support of his contention, learned counsel for appellant placed reliance on the case of Master Mallikarjun vs. Divisional Manager, National Insurance Co. Ltd. and Another, (2014) 14 SCC 396 , wherein the Hon'ble Supreme Court has held that though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, they were of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and upto 30% to the whole body, Rs. 3,00,000/-. In the instant case, the Tribunal has awarded compensation in a sum of Rs. should be, if the disability is above 10% and upto 30% to the whole body, Rs. 3,00,000/-. In the instant case, the Tribunal has awarded compensation in a sum of Rs. 1,00,000/- for the disability of the injured/claimant aged 10 years and also a school going child. But PW-2, the doctor who has treated the claimant has opined that the injured is having 11% disability to the whole body. The Tribunal has only considered the assessment of disability by PW-2 and also the age factor of the minor to award compensation under the head of permanent disability in a sum of Rs. 1,00,000/- and the same is against the ratio of reliance of Master Mallikarjun's case (supra). These are the grounds urged by the learned counsel for appellant seeking for enhancement of compensation. 9. Per contra, Sri. Janardhan Reddy, learned counsel for respondent No. 1 has taken me through the impugned judgment rendered by the Tribunal based upon the oral and documentary evidence adduced. He has contended that the compensation awarded by the Tribunal is just and proper. Hence he seeks for dismissal of the appeal. 10. Having regard to the contentions taken by the learned counsel for the parties, it is relevant to state that PW-1 said to be the father of the injured/claimant has deposed regarding the grievous injuries sustained by the claimant which has been corroborated by the evidence of PW-2, the doctor who treated the claimant. He has also deposed regarding the treatment taken by the claimant as an inpatient for nine days at Sanjay Gandhi Hospital, Bengaluru from 31.07.2011 to 08.08.2011. The learned counsel for respondent No. 1 who has addressed his argument relating to the compensation awarded in respect of disability has specifically contended that there is no specific evidence adduced by PW-1 in order to seek enhancement of compensation in respect of disability. 11. PW-2 being the doctor has opined that she has sustained 11% permanent disability to the whole body. Relevant documents at Ex.P5 and P6 (wound certificates) are also produced in support of this contention. Though the Tribunal has considered the same and also considering the age and the nature of injuries, has awarded compensation in respect of permanent disability in a sum of Rs. 1,00,000/- which is inadequate. Relevant documents at Ex.P5 and P6 (wound certificates) are also produced in support of this contention. Though the Tribunal has considered the same and also considering the age and the nature of injuries, has awarded compensation in respect of permanent disability in a sum of Rs. 1,00,000/- which is inadequate. Keeping in view the decision of the Hon'ble Supreme Court in the case of Master Mallikarjun (supra), I am of the considered opinion that as the injured was aged about 10 years at the time of the accident in which she suffered grievous injuries as referred above, and was also a school going child, and considering the fact that there shall be no future prospects in her education career, I deem it just and proper to enhance the compensation from Rs. 1,00,000/- to Rs. 3,00,000/- insofar as permanent disability is concerned. 12. Taking into consideration the age of the minor claimant and the injuries suffered by her, I deem it just and proper to award a sum of Rs. 30,000/- for future marriage prospects. The remaining heads of compensation awarded by the learned Tribunal remains unaltered. 13. In view of the aforesaid reasons, the claimant is entitled for the following compensation:- Heads Amount Pain and sufferings Rs. 50,000 Loss of amenities and happiness Rs. 30,000 Medical and incidental charges Rs. 7,000 Permanent disability Rs. 3,00,000 Future marriage prospects Rs. 30,000 TOTAL Rs. 4,17,000 14. Hence I proceed to pass the following: ORDER: (i) The appeal is hereby allowed in-part. (ii) Consequently the claimant is entitled for compensation in a sum of Rs. 4,17,000/- with interest @ 6% p.a. as against Rs. 1,87,000/- as awarded by the learned Tribunal. (iii) Respondent/Insurance Company is directed to deposit the entire award amount including interest, before the concerned MACT within a period of four weeks from the date of receipt of certified copy of this order. (iv) The compensation amount with accrued interest shall be released, forthwith, on proper identification. Office is directed to draw the decree accordingly.