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Judgment
B.S. Indrakala, J.—Though both the appeals are posted for admission, with the consent of the learned counsel appearing for the parties, matter is taken up for final disposal. Both these appeals are preferred against the judgment and award dated 9.2.2009 passed in MVC No. 1158/2005 on the file of the Prl. Civil Judge (Sr. Dvn.) and MACT - IV, Mangalore.
It is the case of the claimant that on 28.4.2005 at about 7.30 AM while he was proceeding as pedestrian on the left side of the road near check-post of Mijar Village, Mangalore on NH. 13, the bus bearing Regn. No. KA-19-D-2025 which was being driven by its driver in rash manner coming from Moodabidre side towards Mangalore, in the process of overtaking another vehicle came to the extreme wrong side of the road and dashed against him causing the accident. Further, it is contended that due to the impact, claimant fell and sustained grievous injuries; he was shifted to Alvas Health Centre, Moodabidre and from there to A.J. Hospital, Mangalore where he was hospitalized; It''s the case of the claimant that he spent money towards medicine, attendant''s charges etc. and he was aged 15 years studying in 7th standard at the time of the accident; due to the accident he could not attend the classes and hence, sought compensation from the owner and insurer of the said bus.
In the statement of objections filed by the insurer the cause of accident, nature of injuries sustained by the appellant/claimant, amount of expenses incurred and the disability which the claimant has to undergo are all denied. However, it is specifically pleaded that the liability, if any, of the insurance company the same is subject to the terms and conditions of the policy.
The claimant - being minor, to prove his case got examined his father and next friend as PW 1; a witness to the accident as PW 2 and got marked documents as per Exs. P. 1 to P. 7. On behalf of the respondents, one of the official of the insurance company is examined as RW 1 and Exs. R. 1 and 2 are got marked.
The tribunal by considering such evidences record deemed it fit to award a sum of Rs. 2,30,000/- with interest at the rate of 6% p.a. from the date of petition till realisation. Aggrieved by the said judgment and award, both the claimant as well as the insurer are in appeal.
The insurer filed MFA 6606/2009 contending that the owner and insurer of the other vehicle which the driver of the bus alleged to have overtaken viz., the goods tempo bearing Regn. No. KA-19/1593 - are not made parties to the proceedings and the amount awarded is excessive.
The claimant filed MFA 10957/2010 inter alia contending amongst other grounds that the amount of compensation awarded is inadequate and seeks enhancement of the same.
Thus, it is seen that the insurer questioned the cause of accident itself. It is the specific case of the insurer that the other vehicle which bus driver of the bus overtook also contributed to the cause of the accident, but, in this regard it has to be noted that the FIR and also the charge sheet filed after due investigation by the IO are all clear with regard to the cause of accident. The same disclosure that the driver of the bus alone was responsible for the accident and nothing is forthcoming with regard to the involvement of any other vehicle. In the circumstances, the cause of accident as contended to by the claimant is proved and the accident did occur solely on account of the rash driving of the bus bearing Regn. No. KA-19-D-2025.
However, with regard to the quantum of compensation, it is seen that as per the wound certificate marked as Ex. P. 4, the claimant sustained the following injuries:
Extensive crush injury of the left hand with loss of 3rd, 4th and 5th fingers.
Crush laceration of the palm of the left hand, 15 c.m. x 10 c.m., with cut tendons and vessels.
Fracture of proximal phalanx of index finger (X-ray No. 31348)
Fracture of 1st, 2nd, 3rd, 4th and 5th metacarpal bones of left hand (X-ray No. 31348)
The tribunal by considering the nature of injuries awarded a sum of Rs. 40,000/- towards pain and suffering which is just and proper and the same does not call for any interference.
Further, it is seen that the claimant was hospitalized for 32 days. Considering the said period of hospitalization, the tribunal has deemed it fit to award Rs. 5000/- towards conveyance and Rs. 8000/- towards attendant''s charges. However, considering the said period of hospitalization and also the nature of injuries, it is reasonable to award in all Rs. 15,000/- towards incidental expenses.
The tribunal by considering the medical bills filed by the claimant, has deemed it fit to award Rs. 52,000/- which is proper.
With regard to future loss of earnings, the tribunal by considering the percentage of disability at 50% and assessing the notional income of the claimant who was a minor at Rs. 15,000/- p.a., has deemed it fit to award Rs. 1,20,000/- towards future loss of earning by applying multiplier of 16 but considering the age of the claimant as on the date of accident as 15 years, the appropriate multiplier is 18. Hence, towards disability the claimant is entitled at Rs. 1,35,000/- (Rs. 7500 x 18). It is in evidence that there is auto amputation of 3 fingers of left hand besides the claimant was a minor child at the time of the accident and he has to bear with it for the rest of his life. In the circumstances, it is reasonable to award a sum of Rs. 50,000/- as against Rs. 5000/- awarded by the tribunal towards loss of amenities.
Thus, the claimant is entitled to be compensate as hereunder:
Accordingly, the impugned judgment and award are liable to be modified. Hence, the following:
ORDER
The appeal filed by the claimant in MFA 10957/2010 is hereby allowed by awarding a sum of Rs. 2,92,000/- together with interest at the rate of 6% p.a. from date of petition till realisation as compensation as against Rs. 2,30,000/- awarded by the tribunal.
The insurer shall deposit the amount so awarded within 8 weeks from the date of receipt of copy of this order. On such deposit, a sum of Rs. 2,00,000/- with proportionate interest shall be kept in fixed deposit in the name of the claimant for a period of 10 years with liberty to withdraw 50% of periodical interest as and when the same accrues and the balance 50% of interest shall be payable on maturity of the fixed deposit. The appellant/claimant is not entitled for interest for a period of 564 days is delay caused in filing the appeal as per order dated 25.11.2013.
The balance of Rs. 92,000/- with proportionate interest shall be released in favour of the claimant who has now attained the age of majority for his immediate necessities.
Office to draw the award accordingly.
The appeal filed by the insurance company in MFA No. 6606/2000 is dismissed.
The amount in deposit is ordered to be transmitted to the tribunal for disbursement.