IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G.PANDIT M.F.A.NO.4820 OF 2013 (MV) BETWEEN:
MASTER SHYAM R., S/O B.C. RANGAIAH, AGED ABOUT 16 YEARS, SINCE MINOR REPRESENTED BY HIS NATURAL GUARDIAN MOTHER SMT.M.RATHNA, W/O RANGAIAH, AGED ABOUT 33 YEARS, R/AT C/O MATTHAIAH, NO.373, VIJAYANADANAGAR, NANDHINI LAYOUT, BANGALORE.
(BY SMT ARCHANAMURTHY, ADVOCATE FOR SRI S DORAI BABU, ADVOCATE) AND:
1. THE BRANCH MANAGER, UNITED INDIA INSURANCE CO. LTD., NO.40, 1ST FLOOR, LAKSHMI COMPLEX, OPP. VANI VILAS HOSPITAL, K.R.ROAD, BANGALORE – 560 002.
... APPELLANT (INSURE OF THE BMTC BUS BEARING REG.NO.KA-50-F-016).
2. THE MANAGING DIRECTOR, BMTC, K.H.ROAD, SHANTHINAGAR, BANGALORE – 560 027.
... RESPONDENTS (BY SRI RAVISH BENNI, ADVOCATE FOR R1; SRI.D.VIJAYAKUMAR, ADVOCATE FOR R2) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 26.03.2012 PASSED IN MVC NO.1047/2011 ON THE FILE OF THE 4TH ADDITIONAL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES BANGALORE, 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 before this Court in this appeal not being satisfied with the quantum of compensation awarded by the Tribunal under the Judgment and Award dated 26.03.2012 passed in MVC No.1047/2011 on the file of the MACT, Bangalore (hereinafter referred to as 'the Tribunal' for short). The claim petition was filed under Section 166 of the Motor Vehicle Act (hereinafter referred to as 'the Act’ for short) claiming compensation for the accidental injuries suffered in a road traffic accident.
2. It is stated that the Claimant, who was a minor, aged about 14 years, on 06.12.2010, when he was boarding the BMTC bus bearing registration No.KA-50 F- 016, driver of the said bus suddenly moved in a rash and negligent manner and due to which the Claimant fell down from the bus and its left rear wheel rammed over his right leg. He suffered crush injuries and initially took treatment at J.P.Hospital and further treatment at Hosmat Hospital. The Claimant was studying 9th Standard.
3. On issuance of notice the respondents appeared and filed its written statement admitting issuance of policy and denying the claim petition averments. It is also stated that the accident occurred solely due to the negligence of the Claimant.
4. On behalf of the claimant his mother was examined as PW1 and Doctor was examined as PW2 and got marked 21 documents as Ex.P1 to Ex.P21.
5. The Tribunal analyzing the material placed on record awarded total compensation of Rs.1,38,250/- along with interest at the rate of 6% p.a., from the date of petition till its complete payment, on various heads, viz., pain & sufferings a sum of Rs.25,000/-; Medical expenses, conveyance & nourishment a sum of Rs.40,000/-; Future loss of earning on account of permanent partial disability a sum of Rs.27,000/-; loss of earning during laid up period a sum of Rs.6,250/-; attendant charges a sum of Rs.5,000/-
; loss of amenities a sum of Rs.15,000/-; Compensation for disability a sum Rs.10,000/- and loss of marriage prospects a sum of Rs.10,000/-. The Claimant being not satisfied with the award of compensation in a sum of Rs.1,38,250/- is before this Court in this appeal praying for enhancement of compensation.
6. Heard the learned counsel for the parties and perused the material on record including the lower court record.
7. The learned counsel for appellant would submit that the compensation awarded by the Tribunal is on the lower side when compared to the injuries suffered by the Claimant to his right leg. She further submits that Claimant was a minor aged about 14 years as on the date of accident and has suffered crush injuries to the right leg and Type II open fracture of right leg. The Claimant was inpatient from 06.12.2010 to 10.12.2010. The learned counsel submits that the compensation awarded on various heads are on the lower side and prays for enhancement of compensation. It is further contended that the Tribunal assessed the whole body disability at 10% against the evidence of the doctor, who had opined that Claimant suffered 30% disability to a particular limb and doctor had assessed whole body disability at 12%, which the Tribunal failed to take note. Hence, she prays for enhancement of the compensation awarded by the Tribunal.
8. Per contra, learned counsel for respondent - Insurance Company would submit that the quantum of compensation awarded by the Tribunal is just compensation, which needs no interference. He submits that PW2 Doctor has opined that Claimant suffered from 30% disability to a particular limb, the Tribunal has rightly taken 1/3rd of the disability to a particular limb to assess the whole body disability at 10%. Hence, he prays for dismissal of the appeal.
9. Having heard the learned counsel for the parties and on perusal of the materials placed on record, the only point that would arise for consideration is :
“Whether the claimant would be entitled for enhanced compensation under the facts and circumstances of the case?”
10. The answer to the above point is in the affirmative for the following reasons:
11. The accident occurred on 06.12.2010 involving a BMTC bus bearing registration No.KA-50 F-016 and the accidental injuries suffered by the Claimant are not in dispute in this appeal. In this appeal the claimant seeks enhancement of the compensation awarded by the Tribunal. The Claimant has suffered type II fracture to his right leg. Claimant was inpatient for treatment from 06.12.2010 to 10.12.2010. The Claimant has undergone surgery. Ex.P6 is the wound certificate and Ex.P7 & P8 are discharge summaries, which would indicate the injuries suffered and treatment taken by the Claimant. The Claimant was a student studying in VIII Standard as on the date of accident. PW2 Doctor, in his evidence deposed that the Claimant suffer from 30% disability to his right limb and opines that Claimant suffer from 12% whole body disability. In his cross examination PW2 admits that implants were removed only after union of fracture from the leg of the Claimant. In the instant case looking to the evidence of PW2-Doctor, nature of injuries suffered by the Claimant and treatment taken, the Tribunal has rightly assessed whole body disability at 10%, which requires no interference.
12. 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 upto10%, it should be Re.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 to longer period of hospitalization for about to months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:-
HEAD COMPENSATIO N AMOUNT Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomfits, etc., and loss of amenities in life on account of permanent disability.
Discomfort, inconvenience and loss of earnings to be 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.3,00,000/-
Rs.25,000/-
Rs.25,000/-
Rs.25,000/-
TOTAL: Rs.3,75,000/-
13. On Perusal of the above portion of the order it would be clear that if a minor suffers disability up to 10% he would be entitled to Rs.1 lakh in addition to actual expenses. Accordingly, in the instant case as the claimant has suffered 10% whole body disability, he would be entitled for the following compensation :
Pain and suffering, inconvenience & discomfort, loss of amenities in life on Amount in (Rs.) 1,00,000 account of permanent disability.
Medical expenses (Actuals) 40,000 Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization Attendant charges, food, nourishment and diet 20,000 10,000 Total : 1,70,000 14. Thus, the claimant would be entitled for enhanced modified compensation of Rs.1,70,000/- as against Rs.1,38,250/- awarded by the Tribunal, with interest at the rate of 6% per annum from the date of petition till realization.
Accordingly, the appeal is allowed in part. The judgment and award of the Tribunal is modified to the above extent.
Sd/- JUDGE VK