IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S.G.PANDIT M.F.A.No.2116/2014 [MV] BETWEEN:
BABY NIKITHA RASHAL CARLO D/O RONALD CARLO AGED ABOUT 6 YEARS REP.BY NATURAL GUARDIAN RONALD CARLO S/O LATE SIMON CARLO AGED ABOUT 51 YEARS R/AT MUKUDA HOUSE AGRAR POST, BANTWAL TALUK PRESENTLY R/AT D’SOUZA COMPOUND KADRI KAMBLA MANGALORE TALUK-575004.
(BY SRI.GURUPRASAD B R, ADV.) AND:
1. THE NATIONAL INSURANCE CO. LTD., 1ST FLOOR, NITHYANANDA COMPLEX BUS STAND, MOODABIDRI MANGALORE TALUK-574227 REPRESENTED BY ITS MANAGER.
2. MOHAMMED S/O YUSUF AGED 44 YEARS R/AT NEERALIKE HOUSE ...APPELLANT KALLABETTA VILLAGE MANGALORE TALUK-575224.
…RESPONDENTS (BY SRI.K KISHORE KUMAR REDDY, ADV. FOR R1) THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.02.2013 PASSED IN MVC NO.1544/2011 ON THE FILE OF THE MEMBER, MACT-IV & III ADDL. DISTRICT JUDGE, D.K., MANGALORE PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T The appellant - minor child of six years is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 25.02.2013 passed in MVC No.1544/2011 on the file of Member, MACT-IV and III Addl. District Judge, D.K., Mangalore.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the injuries suffered in a Road Traffic Accident. It is stated that on 15.05.2011 when the claimant along with her parents had been to her grand parents house at Moodabidri, while playing in front of the house, a Maruthi Omni Car bearing Reg.No.KA-03 C-8397 driven in a rash, negligent manner and dashed to the claimant who was aged about 3 1/2 years as on the date of accident. Due to the accident the claimant suffered grievous injuries of fracture of distal end of left tibia and fibula. The claimant took treatment as inpatient from 15.05.2011 to 27.05.2011.
3. On issuance of summons the 2nd respondent - Insurer appeared before the tribunal and filed its written statement denying the claim petition averments. It also denied the nature of occurrence of the accident and the injuries sustained by the claimant, but admitted the issuance of policy in respect of the offending vehicle. It also contended that the driver of the Maruthi Omni Car had no valid and effective driving licence as on the date of accident. The accident occurred solely due to the negligence of the claimant, as she entered the public road without observing the traffic. Father of the claimant was examined as PW.1 and examined the Doctor as PW.2, the documents were marked as Exs.P1 to P16. Respondent marked Ex.R1 – Copy of the Insurance Policy. The Tribunal based on the material on record awarded global compensation of a sum of Rs.60,000/- with interest at 6% from the date of petition till the date of realization. The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
4. Heard the learned counsel for the appellant and learned counsel for the respondent - Insurance Company. Perused the entire material on record.
5. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side and he prays for enhancement of compensation. It is his further submission that the Doctor has opined that the claimant has suffered 12% disability to her left limb and foot. The whole body disability would come to 4% which is 1/3rd of disability to a particular limb. She was aged about 3 1/2 years as on the date of accident and she has suffered fracture of distal end of left tibia and fibula and fracture of left foot. Learned counsel for the appellant relies upon the decision of Hon’ble Apex Court in MALLIKARJUN VS. DIVISIONAL MANAGER, NATIONAL INSURANCE CO. LTD., AND ANOTHER reported in AIR 2014 (14) SCC 396 and submits that the claimant would be entitled to Rs.1,00,000/- for the whole body disability suffered by the claimant at 4% apart from other expenses. It is his further submission that the parents of the claimant have incurred medical expenses to the tune of Rs.71,584/- and they have received a sum of Rs.50,000/- from TTK Health Care and the balance is Rs.21,584/-, which the tribunal has failed to award.
6. Per contra, learned counsel for the 1st respondent - Insurer submits that the quantum of compensation awarded by the Tribunal is just compensation which needs no interference. Further he submits that the parents of the claimant have received medical expenses from TTK Health Care and hence they would not be entitled for any further amount.
7. Having heard the learned counsel for the parties and on perusal of the material on record, the only point that arise for consideration is as to ‘Whether the claimant is entitled for enhancement of compensation in the facts and circumstances of the case ? Answer to the said point is in the affirmative for the following reasons :-
The accident occurred on 15.5.2011 involving Maruthi Omni Car bearing Reg.No.KA-03-C-8397 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. Ex.P5 is the wound certificate. Exs.P8 and 9 are the Discharge Summaries. Ex.P10 is the disability certificate. The claimant has suffered fracture of distal end of left tibia and fibula and fracture of left foot. She was inpatient from 15.05.2011 to 27.05.2011. PW.2 - the Doctor has stated that the claimant has suffered terminal restriction of left ankle joint movements and difficulty in climbing upstairs, walking downstairs, standing on the left leg and squatting and stated that she has got 12% disability to her left lower limb. Further he states that the claimant would require future medical treatment for which he states that Rs.30,000/- would be necessary. The Doctor is of the opinion that the claimant suffered 12% disability to the particular limb. The whole body disability would be 1/3rd of the same, which means the claimant suffered 4% whole body disability in the present case. As per the decision of MASTER MALLIKARJUN case cited supra the injured would be entitled for a sum of Rs.1,00,000/- wherever the permanent disability is less than 10% on the head of pain and suffering, mental and physical shock, discomfort, loss of amenities etc., apart from other expenses. The parents of the claimant stated that they incurred medical expenses to the tune of Rs.71,584/- and they have produced the medical bills at Ex.P12. They have also disclosed that they have received a sum of Rs.50,000/- from TTK Health Care and balance medical expenses Rs.21,584/- is not awarded by the Tribunal, which the parents of the claimant would be entitled. The claimant took treatment as inpatient for 15 days. Hence she would be entitled for a sum of Rs.10,000/- on the head of conveyace, incidental expenses. The Doctor in his evidence has deposed that the claimant requires future medical treatment to her left lower limb and she may require a sum of Rs.30,000/- for left little toe re-implantation. Taking note of evidence of PW.2 - the Doctor, the claimant would be entitled for a sum of Rs.20,000/- on future medical expenses. Thus the claimant would be entitled
Total Rs.1,51,584/-
8. Accordingly, the appeal is allowed in part. The impugned judgment and award is modified to the above extent. The claimant is entitled to compensation of Rs.1,51,584/- as against Global compensation in a sum of Rs.60,000/- awarded by the Tribunal, with interest at 6% p.a. from the date of petition till the date of realization.
9. This Court by order dated 1.7.2016 condoned the delay of 254 days in preferring the appeal, subject to the condition that the claimant would not be entitled for interest for the delayed period. Hence the claimant would not be entitled for interest for the delayed period of 254 days.
Sd/- JUDGE NG* CT:bms