IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE H.P.SANDESH MFA No.3648/2012 (MVC) BETWEEN:
Master Sujal, Aged about 6 years, S/o Srinivasa N Kharvi, R/o Janatha Colony, Cherkadi Village, Udupi Taluk, Rep. by his Natural Guardian Father Srinivas Kharvi (By Sri. H.Pavana Chandra Shetty, Advocate) AND:
1. Yasmin Banu, Major, W/o Mohammed Mahazar, Chowtani, Main Road, Bhatkal, U.K.District 581 320.
2. National Insurance Company Limited, Div 10, B.M.C. House, New Delhi, Rep. by its Divisional Office, Shankar Building, Masjid Road, Udupi, Rep. by its Divisional Manager.
(By Smt.H.R.Renuka, Adv., for R2; R1 served) ...Appellant …Respondents This MFA is filed under Section 173 (1) of MV Act against the judgment and award dated 11.1.2012 passed in MVC No. 1050/2009 on the file of the Principal Senior Civil Judge, Additional MACT, Udupi, 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 This appeal is filed challenging the judgment and award passed in MVC No. 1050/2009 dated 11.1.2012 on the file of the Principal Senior Civil Judge and Additional MACT, Udupi, questioning the quantum of compensation.
2. The claimant is a minor boy represented by his natural guardian father. He filed the claim petition stating that on 4.6.2009 at about 9.05 hours the petitioner was proceeding in a motor cycle bearing No. KA47 E 9651 from Bunder to Bhatkal, one Harish Kharvi was riding the motor cycle. When they reached at Mugdam Colony near Jetaka Temple, at that time a Maruti Omni car bearing registration No.KA47 M 565 came from Bhatkal side towards Bunder side in a rash and negligent manner and dashed against the petitioner’s motor cycle. As a result, the petitioner sustained injuries and immediately he was shifted to Government Hospital, Bhatkal and thereafter to KMC Hospital, Manipal and he took intensive inpatient treatment. He spent money towards conveyance, attendant charges, nourishing, etc., and claimed compensation of Rs.16,60,000/-.
3. In response to the claim petition, the first respondent remained absent and second respondent appeared through a counsel and filed written statement denying the contents of the claim petition. It is contended that the accident occurred solely due to the negligent riding of the motor cycle.
4. The claimant to substantiate his claim examined one witness who is his father and also examined one witness, the doctor as PW2 and got marked Exs. P1 to P13. Respondents did not choose to examine any of the witnesses.
5. The trial Court considering both oral and documentary evidence allowed the claim petition in part granting compensation of Rs. 5,30,860/- with 8% interest.
6. Being aggrieved by the judgment and award of the Tribunal the claimant in this appeal contended that the Tribunal has committed an error in not awarding just and reasonable compensation. The Tribunal did not consider the evidence of the doctor-PW2 who assessed 75% of permanent disability to his left upper limb and there is no sensation in the left hand due to the brachial plexus injury with weakness of left upper limb and the same has not been considered properly and the compensation awarded under the other heads is very meager and hence it requires to re-visit the same.
7. Per contra, the learned counsel for the respondent No.2 would contend that the Tribunal considered the medical evidence of PW2 and so also calculated the future loss of income till the age of attaining majority and also after attaining the majority and not committed an error in awarding the compensation and hence it does not require interference by this Court.
8. Having heard the arguments of the appellant’s counsel and so also respondent No.2’s counsel and, also keeping the rival contentions, the points that arise for the consideration of this Court are : -
(i) Whether the Tribunal has committed an error in not awarding just and fair compensation and whether it requires interference by this Court?
(ii) What order?
9. Admittedly, the records disclose that the claimant was aged 4 years as on the date of the accident. The documents placed before this Court clearly discloses that he had suffered head injury as well as injury to his left hand. The claimant examining his father-PW1 reiterated the nature of injuries and also the treatment taken and apart from that also examined PW2-doctor. Though PW2 in his evidence assessed permanent disability at 75%, the Tribunal has taken the disability at 50% and calculated the future loss of income. Having taken note of the fact that the claimant is a minor, and the Apex Court, in the judgment rendered in the case of Mallikarjun vs Divisional Manager, National Insurance Company Limited and Another [(2014) 14 SCC 396], dealing with a case of minor, has given a table to award just and fair compensation. The Apex Court also discussed with regard to children suffering from disability and also assessing the just and fair compensation while considering the disability held that, having regard to the relevant factors, precedents and the approach of various High Courts, 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 whole body – Rs.3,00,000/-; up to 60% - Rs.4,00,000/-; up to 90% -
Rs.5,00,000/- and above 90% it should be Rs.6,00,000/-. Having considered the case on hand also, the claimant was aged about 4 years on the date of the accident and also it is clear that due to the accident he has suffered disability of 75% as deposed by PW2. The main grievance of the appellant is that even though PW2 deposed disability is 75%, the Tribunal has taken only 50%. Having considered the nature of injuries and also the principles laid down in the judgment referred to supra, it is appropriate to award compensation of Rs.6,00,000/- under the head of pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts, etc., so also loss of amenities on account of permanent disability.
10. Another amount of Rs.25,000/- is awarded under the heading of discomforts, inconvenience and loss of earnings to the parents during the period of hospitalization.
11. The claimant has also produced the medical bills to the tune of Rs.30,860/- and hence the medical expenses also has to be considered and therefore under the heading of medical and incidental expenses incurred during the period of hospitalization for a period of 21 days, an amount of Rs.30,860/- is awarded.
12. In view of the discussions made above and having considered the principles laid down in the judgment referred to supra, the compensation amount is modified and I pass the following : -
ORDER (a) Appeal is allowed in part.
(b) The judgment and award of the Tribunal is modified granting compensation of Rs.6,55,860/- as against Rs.5,30,860/-.
(c) The second respondent/insurance company is directed to pay the compensation amount within eight weeks from today.
(d) The registry is directed to transmit the LCR to the lower Court forthwith.
Sd/- JUDGE ckl