IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR MISCELLANEOUS FIRST APPEAL NO.2399/2012(MV) BETWEEN:
PRATHAP S/O DODDAMANI AGED ABOUT 14 YEARS.
SINCE MINOR REPRESENTED BY NATURAL GUARDIAN FATHER DODDAMANI S/O SHIVALALI AGED ABOUT 39 YEARS BOTH RESIDENT OF SANKENAHALLI VILLAGE MADIHALLY HOBLI, BELUR TAUK HASSAN – DISTRICT.
(BY SRI. CHETHAN B., ADVOCATE) AND:
1. R. RAVI VARMA S/O RAMAMURTHY MAJOR, R/O OLD NO. 34 NEW NO.118/34 JYOTHI COLONY, NEW PALAYAM COIMBATORE - 641 001 TAMILNADU.
2. THE MANAGER NATIONAL INSURANCE CO. LTD., CITY BRANCH-II, UNITED ... APPELLANT SHOPPING COMPLEX NO.94/34, DR. NANJAPPA ROAD COIMBATORE – 641 001 TAMIL NADU.
REPRESENTED BY THE MANAGER NATIONAL INSURNACE CO. LTD., MANJUNATHA COMPLEX BUS STAND ROAD HASSAN – 573 201.
... RESPONDENTS (BY SMT. GOWHAR UNNISA., ADVOCATE FOR R-2 NOTICE TO R-2 IS DISPENSED WITH VIDE ORDER DATED:23.06.2014) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:29.10.2011 PASSED IN MVC NO.1380/2007 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ADDITIONAL MACT, HASSAN, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is a claimant’s appeal questioning the correctness of quantum of compensation awarded by judgment and award dated 29.10.2011 by Additional Senior Civil Judge & Addl.MACT, Hassan in MVC.No.1380/2007 and has sought for enhancement of compensation.
2. I have heard the arguments of learned Advocates appearing for the parties and perused the records.
3. In a road traffic accident that occurred on 21.05.2007, appellant – claimant is said to have suffered injuries and he was aged about 9 years, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 and sought for compensation of Rs.8,00,000/-. Tribunal, after considering the pleadings and evidence of the parties, has awarded a total compensation of Rs.1,34,800/- with interest @ 6% p.a. from the date of petition till date of realization under the following heads:
4. There is no dispute with regard to accident in question and issuance of policy. Hence, these facts are not delved upon in this appeal as it would be repetition of facts.
5. Learned Advocate appearing for appellant –claimant contended that compensation awarded under all heads are abysmally on the lower side and he prays for enhancement of compensation.
6. Per contra, learned Advocate appearing for respondents would contend that compensation awarded by the Tribunal is just and proper and prays for dismissal of the appeal.
7. Having heard the learned Advocates appearing for parties and on perusal of the judgment and award passed by the Tribunal, it would indicate that in the road traffic accident that occurred on 21.05.2007, claimant had sustained following injuries:
(1) “Multiple grazed abrasions of various size and shape seen over face, right elbow and left elbow, chest and right thigh with sutured wound over left parietal region. C.T.shows right frontal contusion, traumatic SAH, Diffuse cerebral odema. Diagnosed as secure Axonal Injury (Diffuse).
(2) Blunt chest injury with bilateral Haemothrox (L/R) requiring left ICD.
(3) Casualty neuro surgery surgical and pedaling.”
As per Ex.P-3 – wound certificate would disclose that injuries sustained by claimant are grievous. Doctor – P.W.2 has deposed that he had multiple wounds over the scalp and limbs and also a blunt chest injury. Tribunal taking into consideration the gravity of the injuries suffered by the claimant, has awarded a compensation of Rs.40,000/- towards ‘pain and suffering’, which is abysmally on the lower side. Ex.P-4 – Discharge summary would disclose that he was an inpatient for 26 days and has underwent tracheostomy. Therefore, having regard to the injuries sustained and treatment taken, this Court is of the considered view that claimant would be entitled to additional compensation of Rs.20,000/- under the head ‘pain and suffering’ and accordingly, it is awarded.
8. So far as compensation awarded under ‘loss of earning on account of disability’ is concerned, Tribunal has awarded a sum of Rs.33,800/-. Claimant is a minor who was aged about 9 years at the time of accident. Tribunal has taken notional income of the claimant at Rs.15,000/- per year as per II Schedule of Motor Vehicles Act, 1988 and has taken whole body disability at 15% and arrived at the gross income of Rs.2,250/-. By applying the multiplier of ‘15’, has awarded compensation of Rs.33,750/- and rounded off to Rs.33,800/-. Hon’ble Apex Court in the case of MALLIKARJUN vs DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER reported in (2014)14 SCC 396 has held, while considering the claim by a victim child, it would be unfair to follow the structured formula as per the II Schedule to the Motor Vehicles Act; a child cannot be equated to non- earning person. It is also held, compensation is to be worked out under the non-pecuniary heads in addition to the actual amount incurred for treatment done, transportation, attendant charges etc. and if disability is above 10% and up to 30% to the whole body, compensation should be Rs.3 lakhs.
9. In the instant case, Doctor – P.W.2 has deposed that on account of injuries sustained, claimant minimum memory and cognition problem of which he is suffering had resulted in difficulty at academics and claimant has not completely recovered. He has assessed the disability at 15% to the whole body. Applying the parameters laid down in MALLIKARJUN’s case referred to hereinabove, this Court is of the considered view that claimant would be entitled to Rs.3 lakhs towards ‘loss of earning on account of disability’. Tribunal has awarded a sum of Rs.33,800/- and additional compensation to which claimant is entitled would be Rs.2,66,200/- (Rs.3,00,000/- (-) Rs.33,800/-).
Accordingly, it is awarded.
Tribunal has awarded just compensation under all other heads.
Thus, in all, claimant would be entitled to additional compensation of Rs.2,86,200/-.
10. Hence, I proceed to pass the following:
JUDGMENT (1) Appeal is allowed in part.
(2) Judgment and award dated 29.10.2011 passed by Additional Senior Civil Judge & Additional MACT, Hassan in MVC No. 1380/2007 is hereby modified and an additional compensation of Rs.2,86,200/- is hereby awarded which shall carry interest @ 8% p.a. from date of petition till date of payment or deposit whichever is earlier.
(3) Order for deposit and release made by the Tribunal shall hold good for the enhanced compensation also.
(4) Insurance company shall deposit the compensation amount with interest before the jurisdictional Tribunal within an outer limit of four weeks from the date of receipt of certified copy of the order.
(5) Registry is directed to transmit the records to the jurisdictional Tribunal forthwith.
SD/- JUDGE *sp