Mohan vs The Oriental Insurance Co. Ltd.

B. Veerappa, J.—Being aggrieved by the judgment and award dated 28.5.2011 passed by the Senior Civil Judge and MACT, Chintamani in MVC No. 44/2008 awarding compensation of Rs. 74,500/-, the present appeal is filed by the claimant seeking for enhancement of compensation.

The brief facts of the case are as under:

The appellant was a minor boy aged about 6 years studying in II Standard at Seetharamapura Village. He was hale and healthy before the accident which took place on 17.6.2008 when he was playing near Cheemenahalli village gate at about 6.00 p.m., the offending vehicle-Tempo bearing registration No. KA 07-6949 owned by respondent No. 2, came in a high speed in a rash and negligent manner and hit him due to which he sustained grievous injuries over his head and his right leg was fractured. The injuries sustained by the appellant were as follows:

i) Lacerated wound over right super orbital region;

ii) Lacerated wound over left perital region;

iii) Diglouma injuries extending from lateral aspect of right poletral tissue to lateral aspect of right leg.

It is also the case of the appellant that injury Nos. 2 and 3 were grievous in nature as certified by the doctors of the Government Hospital, Sidlaghatta, Nimhans Hospital and Victoria Hospital doctors and due to the said accident, the appellant and his family members suffered mental agony and huge financial loss. He was not able to attend the school properly and not in a position to participate in any sport and enjoyment of his life has been curtailed. It is also contended that the appellant initially was admitted in a Government Hospital, Sidlaghatta and thereafter, was referred to Bangalore for further treatment and again was shifted to Nimhans Hospital, Bengaluru. He was inpatient for a period of 57 days and the doctors, who treated him, advised to admit him to Victoria hospital, Bengaluru for further treatment and again the appellant was admitted to Victoria Hospital, Bengaluru. He was treated as inpatient for a period of 57 days and further he underwent operation/surgery over his right leg and got patched his skin from his lap over to his leg due to which he spent a sum of Rs. 40,000/- for treatment and further a sum of Rs. 20,000/- for attendant charges for a period of 57 days. The Rural Police Shidlaghatta have registered a criminal case against the driver of the vehicle/tempo bearing registration No. KA-07-6949 for the offences punishable under Sections 279, 337, 338 r/w 134 of IPC.

Inspite of the notice issued by the Tribunal, the 2nd respondent did not enter appearance and hence, he was placed ex parte. The 1st respondent/insurance company appeared through its Counsel and filed statement of objections contending that the vehicle in question was not at all insured with the insurance company and there was no negligent on the part of the driver of tempo and the accident occurred due to negligence on the part of the minor appellant himself, etc.

Based on the pleadings, the Tribunal framed the following issues:

"i) Whether the petitioner proves that he sustained grievous injuries in the accident which took place on 15.6.2008 at about 6.00 p.m. at Cheemanahalli village, Chintamani Taluk due to rash and negligent driving of the driver of the tempo bearing No. KA 07-6949?

ii) Whether the petitioner is entitled for compensation? If so, how much and from whom?

The appellant examined his father-natural guardian by name Srinivasa as P.W. 1, one witness as P.W. 2 and the doctor Vishwanath-an orthopedic surgeon as P.W. 3 and got marked the documents as Ex. P.1 to P.14 but the 2nd respondent has neither led any evidence nor has got marked the documents.

The Tribunal after considering both oral and documentary evidence on record by its impugned judgment and award has answered issue No. 1 in the affirmative and awarded a sum of Rs. 74,500/- under the following heads which reads as under:

| In all the Tribunal has awarded compensation of Rs. 74,500/- with interest at the rate of 8% p.a. from the date of petition till realization. Hence, the present appeal is preferred for enhancement by the claimant.

I have heard the learned Counsel appearing for the parties to the lis.

The learned Counsel Smt. B.M. Nagaveni appearing on behalf of Smt. S. Susheela for the appellant has contended that the amount of compensation awarded by the Tribunal under various heads are on the lower side and based on the material evidence on record, the same requires for further enhancement.

Sir S.V. Hegde Mulkund, learned Counsel appearing for respondent No. 1 sought to justify the impugned judgment and award-passed by the Tribunal.

In view of the rival contentions urged by the learned Counsel for the parties, the issue that arises for consideration is:

Whether the Tribunal is justified in awarding compensation of Rs. 74,500/- with interest at the rate of 8% p.a. in the facts and circumstances of the present case?

I have given my thoughtful consideration on the rival contentions urged and perused the entire records and considered the material documents-Ex. P.1 to P.14 and oral evidence of P.Ws. 1 to 3. It is not in dispute that the 1st respondent/insurance company except filing objections has not led any evidence to rebut the evidence of the appellant/claimant It is also not in dispute that the appellant was a minor boy aged about 6 years as on the date of the accident. Taking into consideration his future prospects of life, injuries sustain by him and the evidence given by the doctor P.W. 3 and also the treatment obtained by him for a period of 57 days in different hospitals and considering the entire material on record, this Court is of the opinion that the Tribunal was not justified in awarding only a sum of Rs. 74,500/- with interest at 8% per annum and this Court deems that this is a fit case for enhancement of compensation by modifying the impugned judgment and award passed by the Tribunal and the compensation awarded under different heads has to be re-assessed as follows:

| 12. Accordingly, the appeal is allowed in part. The impugned judgment and award passed by the Tribunal is modified and the appellant/claimant is entitled for a total compensation of Rs. 1,27,500/- which is rounded of to Rs. 1,28,000/- with interest at the rate of 8% per annum from the date of petition till realisation.

The enhanced compensation comes to Rs. 53,500/- with interest thereon shall be deposited by the 1st respondent/insurer in the name of the appellant in any Nationalised Bank for a period of 5 years or till he attains majority whichever is later within 4 weeks from the date of receipt of a copy of this judgment and award. The appellant is at liberty to withdraw the periodical interest as and when it accrues.

The remaining amount with proportionate interest shall be disbursed to the appellant/claimant on proper identification immediately on deposit by the insurer.

Office to draw the award, accordingly.