IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO. 2720 OF 2014 (MV) BETWEEN:
BABY ASWIA KHANUM, D/O SHAFIQUL RAHAMAN KHAN, MINOR, AGED ABOUT 4 YEARS, R/P BY NATURAL GUARDIAN – FATHER SHAFIQUL RAHAMAN KHAN, S/O LATE SHAUKATH ALI KHAN, AGED ABOUT 39 YEARS, R/O HOUSING BOARD, KUVEMPU NAGAR, MANDYA CITY – 571 401.
... APPELLANT (BY SRI SREENIVASAN M.Y., ADVOCATE) AND:
1. ESHA M.B., D/O BASAVANNA, DEAD BY LRS., a) BASAVANNA, S/O LATE VEERAPPA, AGED ABOUT 64 YEARS, b) LALITHA, W/O BASAVANNA, AGED ABOUT 52 YEARS, BOTH ARE R/O KOTEBEEDI MADDUR TOWN, MANDYA DISTRICT – 571 415.
2. THE BRANCH MANAGER, ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD., 2ND FLOOR, NO.132, MANGALYA, BRIGADE ROAD, BANGALORE – 560 025.
... RESPONDENTS (BY SRI RAVI S SAMPRATHI, ADVOCATE FOR R2; R1(A) AND R1(B) – SERVICE OF NOTICE DISPENSED WITH VIDE ORDER DATED 26.06.2019) *** THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.11.2013 PASSED IN MVC NO.243/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, MADDUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant not being satisfied with the quantum of compensation awarded by the Tribunal under the judgment and award dated 25.11.2013 in M.V.C.No.243 of 2010 on the file of the Senior Civil Judge and & MACT, Maddur (hereinafter referred to as 'the Tribunal' for short) is before this Court in this appeal.
2. The claimant is a minor aged about 2 years.
The claim petition was filed under Section 166 of the Motor Vehicles Act 1989, (hereinafter referred to as 'the Act’ for short) by the guardian / father of the minor, claiming compensation for the accidental injuries suffered in a road traffic accident. It is stated that on 22.08.2010 while the minor Claimant was playing in front of her house, a Maruthi Omni car bearing registration No.KA-11 M-2793 driven in a rash and negligent manner came and dashed against the minor Claimant, due to which she sustained severe injuries. Initially, she was treated at Primary Health Center, Besagarahalli and thereafter shifted to Colombia Asia Hospital, Mysore, wherein she was treated as inpatient from 22.08.2010 to 03.09.2010.
3. On issuance of notice, respondents No.1 & 2 appeared before the Tribunal. But only respondent No.2 -
Insurance Company, filed its written statement. Respondent No.2 in its statement admitted issuance of policy in respect of the offending vehicle but denied the liability. It contended that due to negligence of the Claimant accident occurred. It also stated that the driver of the offending vehicle had no valid and effective driving licence to drive particular category of vehicle as on the date of accident. It contended that compensation claimed is excessive and exorbitant. Hence, prayed for dismissal of the claim petition.
4. The father of the minor claimant examined himself as PW-1 and also examined PW-2 and Doctor as CW2, apart from marking eight documents as Ex.P1 to P8 and Ex.C1 to C8.
5. The Tribunal on proper analysis of the material placed before it, awarded a total compensation of Rs.3,57,000/- with interest at the rate of 6% per annum on Rs.3,57,000/- from the date of petition till the date of realisation, on the following heads:
The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal praying for enhancement of the compensation.
6. Heard the learned counsel for appellant and learned counsel for the Insurance Company. Perused the material on record.
7. Having heard the learned counsel for the parties and on perusal of the materials placed before the Court, the only point that would arise for consideration is :
“Whether the claimant would be entitled for enhanced compensation under the facts and circumstances of the case?”
8. The answer to the above point is in the affirmative for the following reasons:
9. The accident occurred on 22.08.2010 involving a Maruthi Omni car bearing registration No.KA-11 M-2793 and the accidental injuries suffered by the minor is not in dispute in this appeal. The Claimant’s appeal is for enhancement of compensation.
10. The learned counsel for appellant submits that the doctor CW1 has opined that permanent physical impairment neurological conditions resulting from trauma is 58.88%. The Claimant is minor aged about 2 years as on the date of accident and due to the accidental injuries her career would affect and throughout life she has to suffer. The learned counsel for appellant relying upon the decision of the Hon’ble Apex Court in the case of MASTER MALLIKARJUNA vs DIVISIONAL MANAGER, THE NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER reported in AIR 2014 SC 736, submitted that the Claimant would be entitled for compensation in a sum of Rs.4 lakhs and the expenses incurred by them.
11. Per contra, the learned counsel for respondent – Insurer submits that the compensation awarded by the Tribunal is just and proper, which require no interference. It is further submitted that CW2 doctor who is Medico Legal Consultant, is not competent to assess the disability. The disability assessed by the Tribunal is on the higher side and he prays for dismissal of the appeal.
12. The Claimant is aged about 2 years as on the date of accident. She has suffered fracture of base of scull with diffuse cerebral edema and pneumocephalus, traumatic brain injury, traumatic optic and multiple cranial nerve neuropathy, subarachnoid hemorrhage and evolving cerebral contusions, left front-temporal ischemia and left MCA territory infarct and right sided hemi paresis and seizure disorders. Due to which she has suffered permanent physical impairment to right 2nd, 3rd, 4th and partial 5th cranial nerve to the extent of 40%. Hemi paresis (right sided) to the extent of 50%, par aesthesia to the extent of 20% and moderate to the extent of 50%. The total permanent physical impairment for neurological conditions resulting from trauma is 58.88% as opined by the doctor CW1. Ex.C4 is the disability certificate issued by the Colombia Asia Hospital signed by CW1 – Dr. Arun.M., Medico-Legal Consultant, Dr.Anil Sangli, Consultant Neuro and Spine Surgeon and Dr.Syed Muinuddin Azam, Chief of Medical Services & Consultant Orthopedic Surgeon. CW1 is one of the signatory to the disability certificate. The disability is assessed by doctors, who were signatories to the disability certificate, have opined that total permanent physical impairment for neurological conditions resulting from trauma is 58.88%. One of the signatory to Ex.C4 is Neuro and Spine Surgeon. There is no reason to disbelieve the evidence of CW1 and Ex.C4 – Disability Certificate. CW1 doctor has further stated that the minor requires attention throughout the day.
13. The Hon’ble Supreme Court in MASTER MALLIKARJUNA’s case, supra, at Para-12 has held as follows:
“12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had to longer period of hospitalization for about to months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:-
HEAD COMPENSATION AMOUNT Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomfits, etc., and loss of amenities in life on account of permanent disability.
Discomfort, inconvenience and loss of earnings to be parents during the period of hospitalization.
Medical and incidental expenses during the period of hospitalization for 58 days.
Rs.3,00,000/-
Rs.25,000/-
Rs.25,000/-
Future medical expenses for Rs.25,000/-
correction of the mal union of fracture and incidental expenses for such treatment.
TOTAL: Rs.3,75,000/-
14. Perusal of the above para would indicate that wherever the disability is assessed at 60%, one would be entitled to Rs.4 lakhs apart from the expenses incurred for treatment and medical expenses. In the instant case also as the doctor has opined that Claimant suffered from 58.88% permanent physical impairment for neurological conditions, I am of the view that the Claimant would be entitled for following compensation :
Pain and suffering, conveyance, discomfort, loss of amenities in life on account of permanent disability.
Amount in (Rs.) 4,00,000 Medical expenses 1,47,000 Future medical expenses 50,000 Total : 5,97,000 15. Thus, the claimant would be entitled for enhanced modified compensation of Rs.5,97,000/- as against Rs.3,57,000/- awarded by the Tribunal, with interest at the rate of 6% per annum from the date of petition till realization. Out of the enhanced compensation 50% shall be kept in fixed deposit.
Accordingly, the appeal is allowed in part. The judgment and award of the Tribunal is modified to the above extent.
Sd/- JUDGE VK