THE BRANCH MANAGER v. MASTER AYUSH

IN MVC NO.1267/2011 ON THE FILE OF THE PRIINCIPAL SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K. AWARDING COMPENSATION OF RS.18,24,000/- WITH INTEREST @ 7% P.A. FROM THE DATE OF PETITION TILL ITS ACTUAL DEPOSIT. M.F.A. NO.8297 OF 2014 BETWEEN: AYUSH S/O VEDAVA AGED ABOUT 9 YEARS REP. BY NATURAL GUARDIAN FATHER, R/AT. KALPAVRIKSHA PUTHROTIBAIL, NARIKOMBU VILL BANTWAL TALUK, DK-574235. ... APPELLANT (BY SRI. V.R. PRASANNA, ADV.) AND:

1. AMEER HAMZA S/O RAJIB AGED ABOUT 41 YEARS R/AT BHARATH NAGAR ULIYARAGATE KAUP UDUPI TALUK & DISTRICT D.K.

2. THE BRANCH MANAGER RELIANCE INSURANCE COMPANY LTD UDUPI DISTRICT. ... RESPONDENTS (BY SRI. D. VIJAYA KUMAR, ADV. FOR R2 NOTICE TO R1 IS DISPENSED WITH) - - - THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.12.2013 PASSED IN MVC NO.1267/2011 ON THE FILE OF THE PRIINCIPAL SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K. PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION. THESE M.F.As. COMING ON FOR ADMISSION, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: COMMON JUDGMENT M.F.A.No.3077/2014 under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act' for short) has been filed by the Insurance Company, whereas, M.F.A.No.8297/2014 has been filed by the claimants seeking enhancement of the amount of compensation. Since, both the appeals arise out of the same accident and from the same judgment, they were heard together and are being decided by this common judgment.

2. Facts leading to filing of this appeal briefly stated are that on 21.09.2010 Master Ayush along with his father, sister and one Narayana Moolya were traveling from Pane, Mangalore to B.C.Road in auto rickshaw bearing registration No.KA19-B-277. At about 7.00 p.m. when they reached in front of railway station at Goodinabali, the driver of Scorpio bearing registration No.KA20-ME-313 drove the same and in a rash and negligent manner and dashed against the auto rickshaw. As an impact of the aforesaid accident, the auto rickshaw fell and the claimant and other inmates sustained grievous injuries. The claimant sustained injuries on his right eye, lacerated wound above right eye brow, swelling and deformity over right thigh, contusion on the spinal cord and injuries all over the body. The claimant was shifted to Thejaswini Hospital, Mangalore. The claimant took treatment as inpatient for a period from 21.09.2010 to 10.10.2010 and was advised continuous follow up treatment once in a week for one year and complete bed rest for one year. The claimant thereafter, again took treatment in Vidyashree Chikatshyala and G.Narayan Bhat Memorial Ayurved Hospital Ukkidka in Kasargod Taluk.

3. The claimants thereupon filed a petition under Section 166 of the Act inter alia on the ground that the accident took place on account of rash and negligent driving of the driver of the Balero. It is further pleaded that the claimant has suffered permanent disability and has already incurred a sum of Rs.1.5 Lakhs towards medicine, transportation and other expenses and he needs more than Rs.50,000/- towards future treatment. The claimant claimed compensation to the tune of Rs.50 Lakhs along with interest. The respondent No.1 viz., the owner did not appear before the Claims Tribunal and was proceeded exparte. The respondent No.2 viz., the insurer filed objections in which inter alia the manner of the accident was denied. It was pleaded that the petition is bad for non joinder of necessary parties as the owner and the Insurance Company of the auto rickshaw were not impleaded. It was also pleaded that the amount of compensation claimed by the claimant is exorbitant, arbitrary and is baseless. It was also pleaded that the accident took place solely on the ground of negligence on the part of the driver of the auto rickshaw and he had contributed to the causing of the accident and therefore, no liability can be fastened on the Insurance Company. It was also pleaded that the driver of both the vehicles did not have valid and effective driving licence on the date of the accident.

4. The Claims Tribunal on the basis of the pleadings of the parties, framed the issues. The claimant in order to prove his case examined Vedava (PW1), Dr.Amithish Narayana and Dr.S.Adanthya as PWs 2 and 3 respectively and got exhibited documents viz., Ex.P1 to Ex.P18. The respondents neither adduced any evidence nor produced any documents. The Claims Tribunal vide impugned judgment inter alia held that the accident took place on account of rash and negligent driving of the vehicle by driver of Scorpio vehicle. It was further held that the Insurance Company failed to prove that the driver of the Scoprio vehicle did not have a valid driving licence on the date of the accident. The quantum of compensation payable to the claimant was assessed at Rs.18.24,00-/- along with interest at the rate of 7.5%. In the aforesaid factual background, these appeals have been filed.

5. Learned counsel for the Insurance Company submitted that the Tribunal ought to have appreciated that there was no evidence on record with regard to the manner of accident as PW1 was neither complainant nor an eye witness and the accident took place solely on account of negligence on the part of the driver of the auto rickshaw. In any case, the Tribunal ought to have held the same to be a case of contributory negligence. while inviting our attention to medical bills, submitted that claimant was inpatient for a period of 19 months and had submitted medical bills to the extent of Rs.37,477/- and Rs.29,093/-. Therefore, the Tribunal grossly erred on awarding a sum of Rs.5,74,000/- on account of medical expenses. It is further submitted that amount awarded towards pain and suffering to the tune of Rs.1,20,000/- is on the higher side and Rs.50,000/- should have been awarded. It is further submitted that no proof with regard to purchase of device was produced. Therefore, the Tribunal grossly erred in awarding a sum of Rs.5 Lakhs on account of future medical expenses. It is also urged that since, the claimant was minor, therefore, a sum of Rs.1,00,000/- could not have been awarded to him under th head of loss of marriage prospects. It is also argued that Tribunal grossly erred in awarding a sum of Rs.50,000/- on account to loss of childhood.

6. On the other hand, learned counsel for the claimant submitted that the amount on account of future medical expenses ought to have been awarded to an extent of Rs.45,00,000/-. It is also submitted that amount awarded under the head of conveyance is on the lower side as the claimant had furnished the bill to the tune of Rs.51,500/- and the amount awarded under the head of food and nourishment charges is on the lower side, which deserves to be enhanced suitably.

7. We have considered the submissions made by learned counsel on both the sides and have perused the record. PW1-Vedava who is the father of the claimant and was traveling with the claimant, at the time of the accident. He is an eye witness to the accident. He in his evidence has stated that the accident took place on account of rash and negligent driving of the driver of the Scorpio vehicle. From the material available on record, it is evident that auto rickshaw was plying east to west whereas, Scorpio vehicle was plying west to east and the accident occurred on the southern edge of the road, which discloses that driver of the auto rickshaw was driving on the correct side whereas, the driver of the Scorpio drove the vehicle on the wrong side and dashed the auto rickshaw. It is also pertinent to mention here that respondent No.2 has not adduced any evidence in rebuttal of aforesaid evidence and has also not proved the plea of contributory negligence. Therefore, the Tribunal on meticulous appreciation of evidence on record has rightly held that the accident took place on account of rash and negligent driving of the driver of the Balero vehicle.

8. Now we may advert to quantum of compensation payable to the claimant. From the wound certificate EX. P8 it is evident that the claimant has sustained lacerated wounds below right eye, right eye brow and upper eye lid. He also sustained swelling and deformity over right eye, spinal cord contusion and fracture of shaft of right femur. The claimant sustained two grievous injuries and Ex.P9 i.e., the discharge summary shows that the claimant was admitted in hospital on 21.09.2010 and was discharged on 10.10.2010. From perusal of discharge summary Ex.P10, it is clear that the claimant was again admitted in hospital on 09.03.2011 and was discharged on 26.04.2011. Thus, the claimant has remained inpatient for a period of 67 days. PW2 viz., Dr.Amithesh Narayana has stated that the claimant has lost sensation below his waist and is unable to move both his legs and has suffered 100% disability to the lower limb. PW3 Dr.S.Adyanthaya has stated in his evidence that claimant has sustained 100% permanent disability in respect of lower limb. It is pertinent to note that even though an invoice for an amount of Rs.4,11,872/- ( Sl.No.150 in Ex.P11) has been produced on behalf of the claimant to show the price of hip joint, however, PW1, in his evidence has not stated in his evidence that he in fact has purchased the hip joint for the claimant. In other words, there is no evidence on record to show the purchase of hip joint for the claimant.

9. The claimant has undoubtedly sustained disability. The claimant is a young boy aged about 5 years. Therefore, his income has to be treated as notional income and has to be quantified at Rs.15,000/- per annum. The multiplier of 15 has to be taken into account and therefore, the claimant is held entitled to a sum of Rs.2,25,000/- on account of disability. The claimant has lost sensation in the lower limbs and has undergone two surgeries. Therefore, a sum of Rs.1 Lakh is awarded on account of pain and suffering. The claimant will have to live with the disability life long and there is no possibility of its cure. Therefore, we assess the compensation on account of loss of amenities in life at Rs.1,50,000/-. The claimant has produced bills worth Rs.1,61,805/- and therefore, he is held entitled to a sum of Rs.1,61,805/- on account of medical expenses. The claimant has remained inpatient for a period of 67 days, therefore, the amount awarded towards conveyance and food and nourishment charges is on the lower side and the same is enhanced from Rs.20,000/- each to Rs.70,000/- each. The claimant is also held entitled to a sum of Rs.70,000/- on account of attendant charges. PW2 in his evidence has sated that the claimant can walk with a help of ARGO and the equipment depends on his body weight. Therefore, we deem it appropriate to award a sum of Rs.5 Lakhs on account of future medical expenses i.e., purchase of device. The claimant at the time of accident was minor and therefore, we hold that he shall not be entitled to any amount on account of loss of marriage prospects. Thus, the claimant is held entitled to the compensation as follows: Particulars Amount

1. Disability Rs.2,25,000/-

2. Pain and suffering Rs.1,00,000/-

3. Loss of amenities Rs.1.05,000/-

4. Medical expenses Rs.1,61,805/-

5. Future medical expenses

i.e., towards purchase of device Rs.5,00,000/-

6. Attendant charges Rs.70,000/-

7. Conveyance Charge Rs.70,000/-

8. Food and nourishment Rs.70,000/- Total Rs.13,46,805/- The aforesaid amount shall carry interest at the rate awarded by the Tribunal. To the aforesaid extent, the award passed by the Tribunal is modified. The amount in deposit shall be transmitted to the Tribunal for disbursement to the claimant. In view of preceding analysis, the appeals are disposed Sd/- JUDGE Sd/- JUDGE