KUMAR. YASHIN vs SRI RAJAN MICHAEL FRANCIS & ANR.

This appeal is by the claimant challenging the judgment and order dated 28.03.2011 passed by the Addl. Motor Accident Claims Tribunal, Hukkeri, (''Tribunal'' for short) in M.V.C.No.2227/2008.

Briefly stated the facts are, the minor claimant through his next friend and natural guardian mother claimed compensation for the injuries sustained in the motor vehicle accident which occurred on 16.08.2008. It was contended that the claimant was proceeding from Masarguppi to Hukkeri on a motorcycle as a pillion rider and his father deceased Mirasab was riding the same and when they came near Masarguppi cross, one Tavera vehicle bearing registration No.MA-14/AH-5180 came from Hukkeri towards Sankeshwar being driven by its driver in a rash and negligent manner with high speed and caused the accident. Due to the said im pact, the claimant sustained grievous injuries and his father Mirasab died on

the spot itself. Due to the grievous injuries sustained by him in the road traffic accident, he was shifted to Primary Health Center, Sankeshwar for treatment wherein he was admitted as in inpatient for one day and thereafter shifted to KLE Hospital, Belgaum, wherein he was admitted as an inpatient from 16.08.2008 to 10.09.2008 and spent more than Rs.60,000/- towards medical expenses. Based on these averments, sought for compensation. On service of notice, respondent no.1 remained absent and was placed exparte. Respondent No.2 appeared through his counsel and filed objections denying all the petition averments. The Tribunal after appreciating the evidence on record awarded total compensation of Rs.66,508/- with interest at 6% p.a. from the date of the petition till the date of realisation. Being aggrieved, the claimant is in appeal.

Smt.S.P.Patil, learned counsel appearing for the appellant reiterating the grounds urged in the memorandum of appeal submits that the Tribunal grossly erred in awarding a meager compensation much against the well established principles of law and contrary to the material evidence on record. The learned counsel seeks

for enhancement of compensation whereas Sri C.V.Angadi, learned counsel appearing for the Insurer supporting the impugned judgment and order would contend that the Tribunal after analysing the evidence on record awarded just and reasonable compensation which cannot be found fault with.

Heard the learned counsel appearing for the parties and perused the material on record.

The nature of the injuries sustained by the claimant are a) fracture of shaft of right tibia b) pain and swelling over right leg with bleeding and c) foot internally retiled. The claimant was in the age group of 12 to 14 at the time of accident and had taken treatment as an inpatient for nearly about 26 days. The doctor who was examined as PW-2 though assessed the permanent physical disability to the tune of 50% in respect of lower limb, the Tribunal disbelieving the same, awarded a compensation of Rs.25,000/- towards loss of future income due to disability.

At this juncture, it is beneficial to refer to the judgment of the Hon''ble Apex Court in the case of MALLIKARJUN VS. DIVISIONAL MANAGER, NATIONAL INSURANCE CO., LTD., (2013 ACJ 2445) wherein the Hon''ble Apex Court while considering the factual matrix of the case wherein the claimant/victim of the road traffic accident, aged about 12 years had suffered fracture of tibia in right leg, hospitalised for 58 days for treatment, who underwent operation in which ortho implants were fixed, fracture being resulting in shortening of leg by 1.5 cm and the injured being limping, awarded Rs.3,00,000/- towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort etc., and loss of amenities in life on account of permanent disability and awarded Rs.75,000/- under the other different heads. Thus, a total compensation of Rs.3,75,000/- was awarded. In the said judgment, it is categorically held that for permanent disability upto 10% the reasonable compensation should be Rs.1,00,000; if the disability is above 10% and upto 30% to the whole body, Rs.3,00,000/-; upto 60%

Rs.4,00,000; upto 90%, Rs.5,00,000/- and above 90%, it should be Rs.6,00,000/-.

In the light of the said judgment, the factual matrix of the present case is examined, it is indisputable that the claimant had suffered the injuries as stated supra and has taken treatment as an inpatient for nearly 26 days, undergoing surgery wherein ortho implants were fixed. Though, the doctor who was examined as PW-2 has assessed the permanent physical disability to upper limb at 50%, the said doctor being not the treated doctor and even while issuing the disability certificate, he has not seen the X-ray and radiological report as held by the Tribunal, in such circumstances no credential value could be given to the evidence of PW-2. However, considering other medical records available on record and in the light of the nature and gravity of the injuries sustained by the claimant as aforesaid, this Court is of the considered opinion that the disability can be fixed to the extent of less than 10%. In the light of the judgment of the Hon''ble Apex Court in Mallikarjun''s case, supra a sum of Rs.1,00,000/- would be the just and reasonable

compensation towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort, etc., loss of amenities in life on account of permanent disability. A sum of Rs.11,508/- is awarded towards the medical expenses as per the medical bills produced by the claimant. The claimant was a minor in the age group of 12 to 14 years. The parent of the claimant had also suffered loss of earnings during the period of hospitalisation while attending to the claimant. Considering the discomfort, inconvenience and loss of earning to the parent, this Court is of the considered opinion that a sum of Rs.25,000/- would be the just and reasonable compensation towards this head. A sum of Rs.25,000/- would be the just compensation for future medical expenses for correction of the fracture and incidental expenses for the removal of the ortho implants fixed through surgery. A sum of Rs.10,000/- is awarded towards attendant charges and special diet. Thus, the total compensation awarded by the Tribunal is modified as under:

Sl. No. Heads Amount

Towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort etc., loss of amenities in life on account of permanent disability Rs. 1,00,000/-

Medical expenses Rs. 11,508/-

Discomfort, inconvenience and loss of earning to the parent Rs. 25,000/-

Future medical expenses Rs. 25,000/-

Towards attendant charges and special diet Rs. 10,000/-

Total Rs. 1,71,508/-

The claimant shall be entitled to total compensation of Rs.1,71,508/- as against Rs.66,508/- awarded by the Tribunal which shall carry interest at the rate of 6% p.a. from the date of petition till the date of realisation.

Accordingly, the judgment and award of the Tribunal is modified and the appeal stands disposed of in terms of the above.