IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.1526 OF 2015 (MV) BETWEEN:
IBRAHIM KHALEL@IBRAHIM@KHALEEL S/O KUNHIMONU AGED ABOUT 11½ YEARS R/AT. K.C. ROAD K.C.NAGAR, TALAPADY MANGALORE TALUK MINOR REP. BY HIS FATHER GUARDIAN MR. KUNHIMONU AGED ABOUT 39 YEARS R/AT. K.C.NAGAR, TALAPADY MANGALORE TALUK.
(BY SRI. RANJAN KUMAR.K, ADVOCATE) AND:
1. MR. PURUSHOTTAMA AGED ABOUT 48 YEARS S/O. B. ANANDA C/O. B. KAMALAKSHA BOLOR MARIGUDI, MANGALORE.
... APPELLANT 2. B. KAMALAKSHA AGED ABOUT 51 YEARS S/O. LOKKAYYA R/AT. MARIGUDI TEMPLE BOLARA, MANGALORE.
3. THE NATIONAL INSURANCE COMPANY 1ST FLOOR, EMJAY’S COMPLEX BALMATTA, MANGALORE-575001.
... RESPONDENTS (BY SRI. RAVISH BENNI, ADVOCATE FOR R3 R1 & R2 – NOTICE D/W V/O DATED 07-11-2015) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 22.08.2014 PASSED IN MVC NO.1374/2009 ON THE FILE OF THE III ADDITIONAL DISTRICT & SESSIONS JUDGE, MEMBER MACT-IV, D.K. MANGALORE C/C, 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 is in appeal under Section 173(1) of the Motor Vehicles Act, praying for enhancement of compensation, not being satisfied with the quantum of compensation awarded under the judgment and award dated 22/8/2014 in M.V.C.No.1374/2009 on the file of the IV MACT & III Additional District & Sessions Judge, D.K. Mangalore c/c.
2. The claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injuries suffered in a road traffic accident. The claimant is a minor aged about 5½ years as on the date of accident. It is stated that on 25-7-2009, when the minor claimant along with his father was walking on the side of the road, Auto rickshaw bearing Reg.No.KA-19C-4051 driven by its driver came in a rash and negligent manner and dashed against the claimant. As a result, the claimant was grievously injured. Immediately, he was shifted to Yenepoya Specialty Hospital, Mangalore, wherein he took treatment as inpatient for 11 days.
3. On issuance of notice, respondent No.3-insurer appeared before the Tribunal and filed its written statement denying the petition averments. It is also stated that the compensation claimed is excessive and exorbitant and the accident not occurred due to the negligence of the driver of the offending Auto rickshaw but wholly due to the negligence of the claimant. Further contended that the driver of the Auto rickshaw was not possessing a valid and effective driving license as on the date of accident.
4. The claimant’s father was examined as PW-1 and Doctor as PW-2, apart from marking 14 documents Exs.P-1 to P-14. On behalf of the respondents, Ex.R-1- insurance policy was marked.
5. The Tribunal based on the material placed on record, awarded total compensation of Rs.1,30,000/- with interest at the rate of 6% per annum from the date of petition till its deposit, on the following heads:
Amount in (Rs.)
The claimant not being satisfied with the quantum of compensation is before this Court in this appeal, praying for enhancement of compensation.
6. Heard the learned counsel for the appellant and learned counsel for the respondent-insurer. Perused the material on record.
7. Learned counsel for the appellant would submit that the claimant is a minor aged about 5½ years as on the date of accident. He further submits that when compared to the injuries suffered and pain and agony undergone by the claimant, the compensation awarded by the Tribunal is on the lower side. It is his further submission that Ex.P7-
wound certificate would indicate that the claimant suffered deep lacerated wound over the dorsum of left foot measuring 8 cm x 5 cm with tissue loss and there was loss EHL and EDL and there was fracture of ankle and tibia. Ex.P9-discharge summary discloses the treatment taken by the claimant. Learned counsel further submits that PW-2-Doctor has opined that claimant suffers 17% disability to the left lower limb, which means the claimant would suffer whole body disability at 6%. It is also further contended that PW-2-Doctor has opined that claimant would require future medical treatment, for which Rs.40,000/- is required. Thus, prays for enhancement of compensation.
8. Per contra, learned counsel for the respondent No.3- Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that the Doctor-PW-2 stated that the claimant suffers from permanent physical disability at 17% to the left lower limb, the Tribunal has rightly taken 1/3rd of the disability to a particular limb to assess the whole body disability at 6%. Thus, prays for dismissal of the appeal.
9. Having heard the learned counsels for the parties and on perusal of the material on record, the only point that falls for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for the enhanced compensation. Answer to the said point is in the affirmative for the following reasons.
10. The accident occurred on 25-7-2009 involving Auto rickshaw bearing Reg.No.KA-19C-4051 and the accidental injuries suffered by the claimant are not in dispute in this appeal. The claimant’s appeal is for enhancement of compensation. Admittedly, the claimant was aged about 5½ years as on the date of accident. Ex.P7-wound certificate would indicate that the claimant suffered deep lacerated wound over the dorsum of left foot measuring 8 cm x 5 cm with tissue loss and there was loss EHL and EDL and there was fracture of ankle and tibia and he was inpatient for 11 days at Yenepoya Specialty Hospital, Mangalore. As per discharge summary-Ex.P9 and Ex.P11- Disability certificate, the claimant suffered permanent physical disability of 17% to the left lower limb. PW-2- Doctor also opines that the claimant has suffered 17% disability to a particular limb and normally, the whole body disability would be assessed at 1/3rd of the disability to a particular limb. If that is taken, the claimant would suffer 6% whole body disability. PW-2-Doctor has also stated that there is restriction of ankle joint movement and inability to extend the left 2nd, 3rd, 4th and 5th toe and difficulty in climbing upstairs etc. Further the Doctor in his evidence deposed that the claimant would require Rs.40,000/- for future surgery and treatment. Taking note of the same, I am of the view that the claimant would be entitled for Rs.20,000/- towards ‘Future medical expenses’.
11. The Hon’ble Supreme Court in the case of MASTER MALLIKARJUNA vs. DIVISIONAL MANAGER, THE NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER reported in AIR 2014 SC 736, 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 upto 10%, it should be Rs.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 a longer period of hospitalization for about two 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 discomforts, etc., and loss of amenities in life on account of permanent disability.
Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.
Rs.3,00,000/-
Rs.25,000/-
Medical and incidental expenses during the period of hospitalization for 58 days.
Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment.
Rs.25,000/-
Rs.25,000/-
TOTAL: Rs.3,75,000/-
12. A reading of the above portion of the decision, it would make it clear that where the minor suffers disability up to 10%, he would be entitled for a sum of Rs.1,00,000/- in addition to medical expenses and future medical expenses. Following the above decision, I am of the opinion that the claimant would entitled for the following modified enhanced compensation as follows:
1. Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability.
Amount in (Rs.) 1,00,000 2. Medical expenses (Actuals) 50,000 3. Transportation, Attendant charges and other miscellaneous expenses 20,000 4. Future medical expenses 20,000 Total 1,90,000 13. Thus, the claimant would be entitled for enhanced modified compensation of Rs.1,90,000/- as against Rs.1,30,000/- with interest at the rate of 6% per annum from the date of petition till realization as awarded by the Tribunal.
The judgment and award passed by the Tribunal is modified to the above extent. Accordingly, the appeal is allowed in part.
Sd/- JUDGE SMJ