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2020 DIGILAW 1511 (KAR)

Jayaprabha v. Mahadevamurthy @ Suresha

2020-07-28

JYOTI MULIMANI

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JUDGMENT Jyoti Mulimani, J. - Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally. 2. For the sake of convenience, the parties shall be referred to in terms of their status and ranking before the Tribunal. 3. This is claimant's appeal for seeking enhancement of compensation and modification of the judgment and award dated 21.03.2013 passed in MVC No.09/2012 by the Motor Accident Claims Tribunal, Nanjanagudu (hereinafter referred to as 'the Tribunal', for the sake of brevity). The claimant namely, Jayaprabha, who was minor, aged 4 years at the time of claim petition. She was represented by her Natural guardian mother - Smt.Gowri. 4. The claimant filed the claim petition under section 166 of the Motor Vehicles Act 1988 seeking compensation of Rs. 13,00,000-/ (Rupees Thirteen Lakh only) for the injuries sustained by her in the road traffic accident that occurred on 22.01.2011. It is the case of the claimant that on the fateful day i.e., on 22.01.2011 at about 2.30 p.m. when she went to the shop to bring sweets, while returning back to the house, near the house of Nerale Siddaiah, , first respondent - the rider of motor cycle i.e., Hero Honda Passion Pro bearing No.KA09 EQ- 2423 came in a rash and negligent manner and hit the claimant. Due to the impact, the claimant fell down and suffered several injuries on her eye, left leg, forehead, knees, elbow and other parts of the body. Immediately, she was admitted to Nanjangudu Hospital for treatment. On the advice of Doctor, the claimant was shifted to Vikram Hospital, Mysuru for further treatment. Hence, action was brought by the claimant claiming compensation of Rs.13 lakhs (Rupees Thirteen lakhs Only ) with interest at the rate of 12% per annum from the date of petition till the date of realization. 5. In response to the notices issued by the Tribunal, respondents appeared through their counsel. The first respondent and third respondent have filed their written statement. The first respondent has denied the averments made in the claim petition. It is contended that the claim made by the claimant is based on imaginary calculation. It is also contended that the accident occurred due to the negligent act of the claimant herself. The first respondent and third respondent have filed their written statement. The first respondent has denied the averments made in the claim petition. It is contended that the claim made by the claimant is based on imaginary calculation. It is also contended that the accident occurred due to the negligent act of the claimant herself. Respondent No.1 further urged that the second respondent is the owner of the motor cycle involved in the accident and is having necessary documents to establish the right of ownership. Further, the said vehicle was insured with the third respondent and that the Insurance policy was in force. Hence, contended that Insurance Company is liable to pay the compensation amount. Respondent No.3 - Insurance Company filed its detailed written statement and contended that the petition is speculative, imaginary, and is not based on facts and hence, prayed for dismissal of the petition. The Insurance Company neither admitted the averments made in Column No.22 of the claim petition. The accident occurred due to the negligent act of the claimant herself . The Insurance Company further contended that the FIR was lodged after seven days. It also denied the involvement of the offending vehicle in the accident. The admission of the policy as on the date of the accident was subject to terms and conditions and subject to the proof of validity of the driving licence and other documents as on the date of the accident. A further contention was raised that if other respondents fail to contest the matter, Insurance Company be permitted under Section 170 of IMV Act to take open the entire available defence and to contest the case on all the available grounds. The liability of the Insurance Company if any, is in accordance with the terms and condition of the policy and in the event of violation of the terms and conditions by the insured or any other provision of Section 149(2) (a) of the IMV Act. The Insurance Company is not liable to pay any compensation amount. Accordingly, respondents prayed for dismissal of the petition. 6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration: 7. In order to substantiate the case, the mother of the claimant Smt.Gowri, examined as PW.1 and Dr.Nityananda Rao was examined as PW.2 and produced 49 documents which were marked as Exs.P1 to P49. Accordingly, respondents prayed for dismissal of the petition. 6. On the basis of the rival pleadings, the Tribunal framed the following issues for its consideration: 7. In order to substantiate the case, the mother of the claimant Smt.Gowri, examined as PW.1 and Dr.Nityananda Rao was examined as PW.2 and produced 49 documents which were marked as Exs.P1 to P49. Respondents did not let-in any evidence. On the basis of the pleadings, the matter proceeded before the Tribunal. The Tribunal after considering the material on record, fastening the liability on the Insurance Company and awarded compensation amount of Rs.1,82,000/- (Rupees One Lakh Eighty-Two Thousand only) with interest at 6% p.a. from the date of petition till realization. The Tribunal rejected the claim petition as against respondent Nos.1 and 2. Aggrieved by the judgment and award, the claimant has preferred this appeal seeking enhancement of compensation and modification of the judgment. The Insurance Company has not filed any appeal. 8. Sri.Manish Aradhya, learned counsel has appeared through video conferencing on behalf of Sri.P.Mahesha. Llearned counsel for the claimant submitted that the judgment and award passed by the Tribunal is not in accordance with law. The compensation amount awarded is on the lower side and hence, the same deserves to be modified. Learned counsel contended that due to the accident, the claimant sustained injuries like fracture of both bones of left leg, multiple abrasions, head injury. Therefore, she was treated as inpatient from 22.01.2011 to 25.01.2011. Due to the accident, the claimant is not in a position to stand continuously for long time, sit properly and cannot walk as before. A further submission was made with regard to the disability. He submitted that the Doctor in his evidence has clearly stated that the claimant sustained 10% permanent disability and the same was not objected by the respondents' counsel. But the Tribunal without any proper reason awarded only Rs.97,200/- under the head 'permanent disability', which according to him is very meagre amount. Lastly, he contended that the compensation awarded under various heads is very meagre and requires modification by this Court. Therefore, he submitted that the award of the Tribunal calls for interference and accordingly, prayed for allowing of the appeal. 9. Lastly, he contended that the compensation awarded under various heads is very meagre and requires modification by this Court. Therefore, he submitted that the award of the Tribunal calls for interference and accordingly, prayed for allowing of the appeal. 9. Per contra, Sri.C.R.Ravishankar, learned counsel appearing for second respondent - Insurance Company vehemently contended that parents of the minor child ought to have taken reasonable and standard care as the claimant was minor. She was only 4 years at the time of accident. He further submitted the accident occurred due to the negligent act of the claimant herself. Next, he contended the Tribunal has erred in rejecting the claim petition as against respondent Nos.1 and 2. A further submission was made that the compensation awarded by the Tribunal is exorbitant and claimant is not entitled for any enhancement of compensation. Therefore, learned counsel sought for dismissal of the appeal. 10. I have heard the contentions and submissions put forth by learned counsels for the respective parties and perused the material on record. The present appeal is filed seeking enhancement of compensation. It is needless to say that the parents of minor children are bound to take reasonable precautions to prevent such accidents or an opportunity resulting in danger and guard against the consequences. But it is not in dispute that the accident occurred on 22.01.2011 and the claimant was aged 4 years at the time of accident and she sustained injuries. . 11. While arguing the matter, learned counsel appearing for the claimant as well as for the Insurance company submitted that appeal may be disposed of by awarding a global compensation. 12. Taking into consideration the facts and circumstances of the present case as well as the submissions made at the Bar, the claimant is entitled for Rs.50,000/- (Fifty Thousand Only) as global compensation. The third respondent - Insurance Company is directed to pay global compensation of Rs.50,000/- only, along with interest 6% per annum from the date of petition till realization. The third respondent - Insurance Company is hereby directed to deposit global compensation of Rs.50,000/- within six weeks from the date of receipt of a certified copy of this judgment. The third respondent - Insurance Company is directed to pay global compensation of Rs.50,000/- only, along with interest 6% per annum from the date of petition till realization. The third respondent - Insurance Company is hereby directed to deposit global compensation of Rs.50,000/- within six weeks from the date of receipt of a certified copy of this judgment. The claimant being a minor therefore, 75% of the award shall be deposited in fixed deposit within four weeks from the date of deposit made by the Insurance Company in any Nationalized Bank and / or Post office for a period of five years. The mother of the claimant is entitled to draw periodical interest accrued thereon. Remaining 25% shall be released in favour of the guardian of the claimant on proper identification. Accordingly, appeal is disposed of. Office is directed to transmit the original records to the concerned Tribunal forthwith. Registry is hereby directed to draw up the award accordingly. No order as to costs.