IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO M.F.A.No.45/2019(MV) BETWEEN:
MASTER DARSHAN S/O DEVARAJU, AGED ABOUT 05 YEARS, R/O.No.17/6, 14TH MAIN, SHAKAMBARI NAGAR, K P MAIN ROAD, BENGALURU-560 017.
SINCE MINOR REPRESENTED BY HIS FATHER NATURAL GURADIAN MR.DEVARAJU S/O CHANDRAPPA, AGED ABOUT 28 YEARS. ..APPELLANT (BY SRI SADASHIVA D, ADVOCATE) AND:
1. CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LTD., 2ND FLOOR, DARE HOUSE, 2NSC BOSE ROAD, CHENNAI-600 001. REPRESENTED BY ITS GENERAL MANAGER.
2 . CHOLAMANDALAM MS GENERAL INSURANCE COMPANY LIMITED, 6TH FLOOR, GOLDEN HEIGHTS BUILDING, 59TH C CROSS, 4TH M BLOCK, RAJAJINAGAR, BENGALURU-560 010.
REPRESENTED BY ITS GENERAL MANAGER.
3 . NAGARAJU K S/O CHIKKALLAYYA, MAJOR, No.434, 6TH CROSS, PRAGATHIPURA, BANASHANKARI MAIN ROAD, BENGALURU.
(RC OWNER OF THE TATA-ACE BEARING No.KA-05-AE-0318) 4 . VINODH KUMAR K.
S/O KANTHARAJU, MAJOR, No.53, CHIKKASWAMY LAYOUT, J.P.NAGARA 6TH PHASE, BANGALORE- 560 078 ..RESPONDENTS (NOTICE TO R-1 DISPENSED WITH VIDE ORDER DATED 19.02.2019, SRI H S LINGARAJ, ADVOCATE FOR R-2, NOTICE TO R-3 DISPENSED WITH VIDE ORDER DATED 23.07.2019, R-4 SERVED – UNREPRESENTED) THIS MFA IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 20.09.2018 PASSED IN MVC NO.5792/2016 ON THE FILE OF THE XVI ADDITIONAL JUDGE, COURT OF SMALL CAUSES, BENGALURU, (SCCH- 14) 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 With the consent of the learned counsel appearing for the parties, appeal is taken up for final disposal.
Appeal is directed against the Judgment and award dated 20.09.2018 passed in MVC No.5792/2016 by the XVI Additional Judge, Court of Small Causes, MACT Bengaluru, SCCH-14, wherein claim petition filed by one Master Darshan aged 3 years represented by his father, natural guardian Devaraju came to be allowed in part and compensation of Rs.3,78,000/- with interest @ 7% p.a. (excluding interest on Rs.75,000/- granted towards medical expenses) from the date of petition till its realization came to be awarded. The liability to pay compensation is saddled on respondent No.3 owner of the offending vehicle and respondent No.4 driver of the offending vehicle.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the Tribunal.
3. The substance of the case is that on 20.02.2016 at about 12.15 P.M. when the petitioner was standing near corner of footpath of 40th `A’ Cross, 26th `B’ Main Road, 9th Block, Jayanagara, Bengaluru, along with petitioner his father and mother were also sitting in front of the building by which time four wheeler Tata Ace bearing registration No.KA-05-AE-0318 driven by its driver in a rash and negligent manner dashed against the petitioner because of which he fell down and even in that position the child was dragged for about 15 feet because of which he sustained massive injuries and got treated. It is claimed that medical expenditure of Rs.3,00,000/- was incurred.
4. Respondents 1, 3 and 4 did not appear and were placed exparte before the Tribunal. Respondent No.2 –insurance company appeared through its counsel and filed its objection statement.
5. Learned Member was accommodated with oral evidence of PW-1 and PW-2 and documentary evidence of Exhibits P-1 to P-19 on behalf of petitioner and oral evidence of RW-1 and RW-2 and documentary evidence of Exhibits R-1 to R-4 on behalf of the respondent.
6. The injuries sustained by the petitioner as deposed by PW-2 Doctor are degloving injury of scalp, face on right side, degloving injury of the shoulder on the left side.
7. Learned Member after considering the oral and documentary evidence granted compensation as under:
SL.NO. DESCRIPTION AMOUNT 1. Pain and sufferings Rs. 40,000/-
2. Nourishment, conveyance and attendant charges Rs. 10,000/-
3. Medical expenses Rs.1,59,000/-
4. Loss of amenities Rs. 70,000/-
5. Loss of income to PW-1 during the period of taking treatment by minor petitioner Rs. 24,000/-
6. Future Medical Expenses Rs. 75,000/- Total Rs.3,78,000/-
8. Learned counsel for respondent-insurance company Sri H.S.Lingaraju would submit that though the doctor assessed the percentage of disability because of the said injuries at 10% it was not accepted. However the liability is saddled on respondent No.3-owner and respondent No.4-driver.
9. Learned counsel for appellant has made available two photographs of the injured child with a memo. Same is taken on record.
10. Learned counsel for appellant would submit that the remedial measures including plastic surgery, hair restoration and scar revision surgeries would require Rs.4,00,000/- as per PW-2 doctor’s estimation.
11. Learned counsel Sri H.S.Lingaraju would submit that the compensation already granted is excessive.
12. Learned Member has not agreed for 10% disability however the rationale or reasons for not accepting is not stated. However I find the compensation amount towards the medical expenses should have been considered in a practical manner at Rs.2,50,000/- as the child is aged three years and loss of amenities at Rs.1,00,000/-.
13. Basically the compensation in respect of the injuries sustained by a minor or in case of death the compensation to be considered is not on the basis of notional income or as a non earning member of the family. It is totally on a different yardstick of the child’s passion, capabilities and prospects.
14. Applying the principles laid down in the case of Master Mallikarjun Vs Divisional Manager, the National Insurance Company Limited and anr reported in AIR 2014 SC 736, I find the following would be fair and just compensation.
Future Medical expenses Rs.2,50,000/- and Rs.1,00,000/- towards 10% disability. Rs.3,50,000/- will be enhancement.
15. In the further circumstances of the matter the driver of the offending vehicle is stated was not having valid and proper licence. I find it is just and proper to direct insurance company to pay compensation and to recover the same from the owner.
Hence, the following:
ORDER Appeal is partly allowed. Judgment and award dated 20.09.2018 passed in MVC No.5792/2016 by the XVI Additional Judge, Court of Small Causes, MACT Bengaluru, SCCH-14, is modified by enhancing the compensation by Rs.3,50,000/- with interest @ 7% p.a. (excluding interest on Rs.2,50,000/- granted towards future medical expenses) Insurance company is directed to pay compensation together with interest including enhanced compensation of Rs.3,50,000/- with interest @ 7% p.a. (excluding interest on Rs.2,50,000/- granted towards future medical expenses) within four weeks from the date of receipt of obtaining the certified copy of this order. However insurance company is at liberty to recover from third respondent-owner even may be in the same execution proceedings.
Sd/- JUDGE SBN