IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.394 OF 2015 (MV) BETWEEN:
MASTER S RUDRAMURTHY S/O SRI V SHIVAMURTHY AGED ABOUT 14 YEARS, PRESENTLY 17 YEARS, R/AT NO.75/A, ARCHAKARAHALLI, 31ST WARD, RAMANAGARA TOWN, RAMANAGARA DISTRICT-571511. REPRESENTED BY HIS FATHER/ NATURAL GUARDIAN, V SHIVAMURTHY (BY SRI. MAHESH B J, ADVOCATE) AND:
...APPELLANT 1. M/S UNITED INDIA INSURANCE CO. LTD., HAVING ITS DIVISIONAL/REGIONAL OFFICE AT 6TH FLOOR, KRISHI BHAVAN, HUDSON CIRCLE, BANGALORE-560001.
REPRESENTED BY ITS DIVISIONAL/REGIONAL OFFICER (POLICE NO.070500311101600 19713, VALID FROM 03/10/2011 TO 02.10.2012) 2. MR. GOVINDARAJU S/O SRI. NAGARAJU M MAJOR, R/AT NO.374 KARIKALLU KAMAKSHI PALYA, BASAVESHWARANAGARA POST, BANGALORE-560079.
(OWNER OF THE MOTOR CYCLE BAJAJ PULSAR (150CC) BEARING REG NO.KA-02-HN-9353) ... RESPONDENTS (BY SRI. S. KRISHNA KISHORE, ADVOCATE FOR R1 SRI. T.K. MOHANDAS, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.08.2014 PASSED IN MVC NO.2889/2012 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND XXIII ACMM, MEMBER-MACT, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDERS, 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 08/08/2014 in M.V.C.No.2889/2012 on the file of the VIII Additional Small Causes Judge & XXXIII ACMM, Member-MACT, Bangalore.
2. The accident occurred on 13-11-2011 involving TVS Motorcycle bearing Reg.No.KA-42-J-2644 and Bajaj Pulsar motorcycle bearing Reg.No.KA-02-HN-9353 and the accidental injuries sustained by the claimant are not in dispute in this appeal. The claimant was aged 14 years as on the date of accident.
3. The claimant in support of his case examined his father as PW-1 and Doctor as PW-2, apart from marking documents Exs.P-1 to P-29. No evidence was lead on behalf of the respondents.
4. The Tribunal on appreciating the material on record, awarded total compensation of Rs.1,43,500/- with interest at the rate of 8% per annum from the date of petition till its realization, on the following heads:
Amount in (Rs.) 1. Pain and suffering 30,000 2. Medical expenses 88,500 3. Conveyance, nourishment and other incidental charges 5,000 4. Loss of amenities 20,000 Total 1,43,500 The claimant not being satisfied with the quantum of compensation awarded by the Tribunal is before this Court in this appeal.
5. Heard the learned counsel for the appellant and learned counsel for the respondents. Perused the material on record.
6. Learned counsel for the appellant would submit that the quantum of compensation awarded by the Tribunal is on the lower side when compared to the injuries sustained by a minor boy who was aged 14 years as on the date of accident. He further submits that the Doctor has opined that the claimant suffers from whole body disability at 8.65%. Further, learned counsel relying on 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, submits that the claimant would be entitled for a sum of Rs.1,00,000/- on the head of ‘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’, apart from compensation awarded on the head of ‘Medical Expenses and Conveyance, nourishment and other incidental charges’. Thus, he prays for enhancement of compensation.
7. Per contra, learned counsel for the respondent– Insurer would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. He further submits that since the claimant is a minor boy, the disability assessed by PW-2- Doctor is of negligible limit and disability would not arise. Thus, prays for dismissal of the appeal.
8. Having heard the learned counsels for the parties and on perusal of the material on record, the only point which arises for consideration in the facts and circumstances of the case is as to whether the claimant would be entitled for enhanced compensation. Answer to the said point would be in the affirmative for the following reasons.
9. The claimant has suffered fracture of shaft right femur. PW-2-Doctor was examined on behalf of the claimant, who has stated that the claimant suffers from 8.65% whole body disability. Ex.P9-discharge summary would disclose that the claimant sustained fracture of shaft right femur and he was inpatient for four days and has undergone surgery. 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 Rs.3,00,000/-
Rs.25,000/-
parents 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/-
10. A reading of the above portion of the decision, makes 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. Hence, in the instant case also, as the claimant suffers disability at 8.65%, he would be entitled for a sum of Rs.1,00,000/- on the head of ‘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’ in addition to Rs.88,500/- towards medical expenses and Rs.5,000/- towards ‘Conveyance, Nourishment and other incidental charges’ awarded by the Tribunal.
11. The contention of the insurer is that since the claimant is a minor, the disability of 8.65% is negligible limit and it would disappear as he grows up. The said contention cannot be appreciated, when the Doctor has categorically stated that the claimant suffers from 8.65% disability to the whole body based on the medical records which has gone unchallenged. Thus, the claimant- appellant would be entitled for 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 (actual) 88,500 3. Conveyance, Nourishment & other incidental charges 5,000 Total 1,93,500 12. Thus, the claimant would be entitled for enhanced modified compensation of Rs.1,93,500/- as against Rs.1,43,500/- with interest at the rate of 8% per annum from the date of petition till its realization as awarded by the Tribunal. The apportionment and deposit of the compensation amount would be as ordered 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