IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ MFA NO.3200 OF 2017 (MV) BETWEEN KUMARI ASHITHA R. GOWDA, S/O. RAJESH, AGED BAOAUT 6 YEARS, SINCE MINOR, REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN, SMT. SWEATH H.M., W/O. RAJESH, AGED ABOUT 32 YEARS, R/AT NO.IDK-22/A, HUTHA COLONY, BHADRAVATHI, SHIVAMOGGA DISTRICT-577 201.
... APPELLANT (BY SRI. M.V. MAHESHWARAPPA, ADVOCATE) AND 1. P. PRADEEP KUMAR, S/O. LATE PUTTASWAMY, AGED ABOUT 26 YEARS, R/AT KACHAGONDANAHALLI VILLAGE, ANTARAGANGE POST, BHADRAVATHI TALUK, SHIVAMOGGA DISTRICT-577 201.
2. D. JAGADEESHA, S/O. DEVEGOWDA, AGED ABOUT 45 YEARS, R/AT NO.16, 5TH CROSS, LEFT SIDE ROAD, HOSAMANE ROAD, HOSAMANE BHADRAVATHI, SHIVAMOGGA DISTRICT-577 201.
3. THE BRANCH MANAGER, THE NEW INDIA ASSURANCE CO. LTD., BHADRAVATHI BRANCH, PREMA COMPLEX, B.H. ROAD, SHIVAMOGGA DISTRICT-577 201.
... RESPONDENTS (BY SRI. R. RAJAGOPALAN, ADVOCATE FOR R3; R1-R2 NOTICE DISPENSED) THIS MFA FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 25.10.2016 PASSED IN MVC NO.99/2014 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIMOGA, SITTING AT BHADRAVATHI, 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 Though this appeal is listed for admission, the same is taken up for final disposal with the consent of learned counsel on both sides.
Aggrieved by the inadequate compensation awarded by the Tribunal for the injuries sustained by the claimant in MVC No.99/2014 on the file of the Court of IV Addl. District and Sessions Judge, Shivamogga, sitting at Bhadravathi and Addl. MACT(IV), the present appeal is filed seeking enhancement of compensation.
2. I have heard the learned counsel appearing for the appellant and the learned counsel appearing for Respondent No.3-Insurance Company.
3. The appellant is a minor who was aged about 3 years 6 months at the time of accident in which she suffered injuries. The facts of the case in brief are that on 22.03.2013 at about 7.30 a.m., the claimant along with her family members were traveling in Omni Car bearing registration No.KA-14-M-6576, to perform pooja at Mandya Taluk. When they reached near Government School M.C. Halli, Tarikere Taluk, the driver of the Omni car drove the same in a rash and negligent manner and suddenly applied break, on account of which, he lost control over the vehicle and dashed against the lorry bearing registration No.TN- 23-AA-2700, which was coming from the opposite direction. In the said accident, the appellant as well as other family members who were inmates of the car, sustained injuries. It is stated that the appellant was shifted to Nanjappa Hospital, Shivamogga and admitted as an inpatient on the very same day and operation was conducted and later she was shifted to Sagar Hospital, Bengaluru, and again underwent surgery.
4. It is further stated that prior to the accident, the injured-appellant was hale and healthy and due to the accidental injuries, she has suffered permanent disability and she is facing difficulty to walk, run and she cannot play games like other normal children and she has lost her childhood happiness and also lost her education for one year etc., 5. Before the Tribunal, a total compensation of Rs.26,60,000/- was claimed. The Tribunal after considering the oral and documentary evidence on record, awarded a compensation of Rs.4,26,500/- with interest at 6% per annum (excluding Rs.30,000/-, awarded under the head future medical expenses).
6. The learned counsel appearing for the appellant would submit that the injured-appellant was a minor girl who is now aged about 8 years and according to the medical evidence, she has suffered permanent disability to the whole body to an extent of 30% which is evident from Ex.C4-Disability certificate. He would further contend that the total compensation awarded by the Tribunal is not commensurate with the injuries and disability suffered by the claimant. He submits that the Tribunal has failed to award any compensation towards loss of future marriage prospects and also towards loss of academic year. He places reliance on the decisions of the Hon’ble Apex Court reported in AIR 2014 SC 736 in the case of Master. Mallikarjun vs. Divisional Manager, National Insurance Company Limited and a decision reported in 2011(5) KCCR 3904 (DB) of this Court in the case of B.U. Chaitanya vs. The Managing Director, BMTC Division and Another.
7. Per contra, the learned counsel appearing for respondent No.3/Insurance Company contends that the disability certificate which is marked as Ex.C4 cannot be relied upon since the doctor who has issued the said certificate is neither a neurologist nor the pediatric neurologist and he is not competent to issue such certificate and he has not subjected the claimant for medical assessment. He submits that the disability suffered by the injured has not been established and the Tribunal has awarded a just and reasonable compensation which does not call for any interference. Accordingly, seeks to dismiss the appeal.
8. The appellant/claimant is a minor girl, who was aged about 3½ years at the time of the accident. She is represented by her natural mother. It is the case of the claimant that on 22.03.2013, when she along with her family members were traveling in a Omni car bearing reg. No.KA-M/6576 to perform pooja in Mandya taluk, at that time, the said car driven by its driver in a rash and negligent manner dashed against the on coming lorry bearing reg. No.TN-23/AA-7700, due to which the inmates of the car including the appellant sustained injuries. The said accident owing to the rash and negligent driving by the driver of the Omni car is not disputed.
9. As per Ex.P14-wound certificate, the appellant has sustained the following injuries:
1) 4 x 3 cm. abrasion over right forehead just above eye-brow.
2) Small abrasion over nose and upper lip.
3) 6 x 5 cm. x 0.5 cm. lacerated wound on left arm, which on x-ray dated 22.03.2013 displaced fracture of distal shaft of humerus.
It was opined that injury Nos.1 and 2 are simple in nature and injury No.3 is grievous in nature.
10. One Dr. K.Bharat K.Kadadi was examined as C.W.1 through Court-Commissioner. He deposed that he has examined and treated Kum. Ashitha R.Gowda, who was aged about 6 years at the time of examination. On assessment, he has opined that she was complete paralysis of left upper limb. She has continued her weakness and paralysis on the left shoulder, elbow, wrist and hand. A diagnosis of complete brachial plexus injury with preganglionic avulsion of C7, C8 and T1 left side with united fracture of left humerus was made. He has deposed that she has underwent the following surgeries on 15.05.2013.
C5 to upper trunk with 4 cable sural nerve graft. C6 to middle and lower trunk with 3 cable graft.
Neurotization:(1) Spinal accessory to suprascaspular nerve for shoulder abduction.
(2) Intercostal nerve to muscu- locutaneous nerve for elbow flexion.
On a complete assessment of her disability he has opined that there was;
(A) Loss of ROM (90%):
Total Loss of ROM at left upper extremity = 42.3%(a) (B) Loss of strength (90%):
Total loss of strength at left upper extremity = 40.98%.
(C) Coordination (90%):
Total loss of coordination = 82% Hand Component:
Total loss of hand component = 75% It was opined that there was total disability of left upper limb at 89.5% and disability to the whole body at 30%.
11. In view of the aforesaid evidence on record, it cannot be said that the appellant has not sustained any disability as contended by the learned counsel for respondent No.2.
12. The Tribunal has awarded a sum of Rs.1,35,500/- towards permanent disability, a sum of Rs.40,000/- towards loss of amenities and a sum of Rs.30,000/- towards pain and sufferings.
13. The Hon’ble Apex Court in the case of Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited and Anr. [supra] at para 12 has held as under:
“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 under-gone 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 Rs.3,00,000/-
loss of earnings to the parents Rs.25,000/- during the period of hospitalization.
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/-
Considering the disability suffered by the appellant in the present case, I deem it just and proper to award a sum of Rs.3,00,000/- towards disability including loss of amenities in life on account of permanent disability which shall include pain and sufferings already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts etc. The Tribunal has awarded a sum of Rs.9,000/- towards nutritious food, attendant, conveyance etc. Considering the period of treatment and the fact that the appellant underwent surgery, the compensation awarded under the said head is enhanced to Rs.15,000/-. The Tribunal has awarded a sum of Rs.1,82,000/- towards medical expenses and Rs.30,000/- towards future medical expenses. The same are unaltered.
14. The learned counsel for the appellant relying on the decision of this Court in the case of B.U.Chaitanya Vs. The Managing Director, BMTC Division and Another [supra] contends that the claimant being a girl child who has suffered permanent disability to the extent of 30% to the whole body is entitled for compensation under the head loss of marriage prospects. He further submits that no compensation has been awarded towards loss of academic career as the victim has lost her educational career. This Hon’ble Court in the aforesaid decision has awarded a sum of Rs.50,000/- towards loss of marriage prospects and a sum of Rs.25,000/- towards loss of academic year. In the said case, the victim was a minor girl aged about 12 years, who was pursuing her studies.
15. In the present case, there is no convincing evidence to hold that the victim was attending any school and she has lost her academic career. However, she is entitled for a compensation for loss of marriage prospects and accordingly I award as sum of Rs.50,000/- under the said head. Therefore, the appellant is entitled for a total compensation of Rs.5,77,000/- as against Rs.4,26,500/- awarded by the Tribunal. Break-up is as under:
Particulars Amount in Rs.
1. Towards disability including loss of amenities in life on account of permanent disability which shall include pain and sufferings already undergone and to be suffered in future, mental and physical shock, … hardship, inconvenience, and discomforts etc.
3,00,000 2. Towards nutritious food, attendant, conveyance etc.
… 15,000
ORDER The appeal is allowed in part. The Judgment and Award dated 25.10.2016 passed in MVC No.99/2014 on the file of the Additional MACT-IV and IV Additional District and Sessions Judge, Shimoga, sitting at Bhadravathi is hereby modified.
The appellant is entitled for a total compensation of Rs.5,77,000/- with interest at 6% p.a. from the date of the petition till realization as against Rs.4,26,500/- awarded by the Tribunal.
Respondent No.3 shall deposit the amount within a period of four weeks from the date of receipt of a copy of this Judgment.
Sd/- JUDGE Snc/Ksm*