IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH M.F.A.No.7724/2012 (MV) BETWEEN:
SRI BHARATH, S/O SRI. RAVI, AGED ABOUT 17 YEARS, SINCE MINOR REPRESENTED BY HIS FATHER NATURAL GUARDIAN SRI RAVI, R/O KARIKALLUDODDI VILLAGE, HOSUR POST, BIDADI HOBLI, RAMANAGARA TALUK AND DISTRICT.
PRESENTLY RESIDING AT No.70, 3RD CROSS, PRAGATHI BADAVANE, BEHIND KHODAY’S CALL CENTRE, VAJARAHALLI, KANAKAPURA ROAD, BENGALURU-560 062. … APPELLANT (BY SRI L. RAJANNA, ADVOCATE) AND:
1. THE MANAGING DIRECTOR, BENGALURU METROPOLITAN TRANSPORT CORPORATION, HEAD OFFICE AT SHANTHINAGAR, K.H. ROAD, BENGALURU-560 027.
2. UNITED INDIA INSURANCE CO. LTD., No.40, LAKSHMI COMPLEX, K.R. ROAD, BENGALURU-560 002. ... RESPONDENTS (RESPONDENTS SERVED AND UNREPRESENTED) THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 27.3.2012 PASSED IN MVC.NO.4852/2010 ON THE FILE OF THE XX ADDITIONAL JUDGE AND XVIII ACMM AND MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS M.F.A. COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed challenging the judgment and award dated 27.3.2012 passed in M.V.C.No.4852/2010, on the file of the XX Additional Judge and XVIII ACMM, Bengaluru (ACMM-18), questioning the quantum of compensation awarded by the Tribunal contending that the compensation awarded by the Tribunal is very meager.
Brief facts of the case:
2. It is the case of the claimant that on 27.5.2010, the claimant and the claimant in M.V.C.No.4851/2010 were standing by the side of the road near Karekalludoddi Cross, Byramangala, Hosur Road, Bidadi Hobli of Ramangara Taluk. At that time, the driver of the BMTC bus bearing No.KA-01-F-2506 drove the same in a high speed and in a rash and negligent manner and dashed against both of them. As a result, both sustained injuries. Hence, both claimed compensation. The claimant in order to substantiate his claim examined his father as P.W.2 and also examined the doctor as P.W.3 and relied upon the documents at Ex.P.9 – wound certificate and other documents – Exs.P.18 to 23 for having taken the treatment. The Tribunal, after considering both oral and documentary evidence, awarded compensation of Rs.56,000/- with interest at 6% per annum. Hence, the present appeal is filed before this Court.
3. The main contention in the appeal memorandum is that the claimant has suffered fracture of right femur and the doctor who has been examined before the Court has deposed that the claimant has sustained disability of 56% to particular limb and 28% to the whole body. The Tribunal has committed an error in not considering the evidence of the doctor and awarded meager compensation.
4. In pursuance of this appeal, this Court issued notice against the respondents and the respondents did not choose to appear before this Court and contest and matter.
5. The learned counsel for the appellant has reiterated the grounds urged in the appeal memo and also relied upon the judgment in the case of MASTER MALLIKARJUN v.
DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER reported in AIR 2014 SC 736. The Apex Court in this judgment held that in a case of minor claimant, the compensation to be paid calibrated on percentage of disability. The counsel referring this judgment would contend that the doctor assessed the disability of 28% to the whole body. Hence, he is entitled for a compensation of Rs.3,00,000/- under the head pain and suffering and also entitled for compensation under the head discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization and also for future medical expenses. Hence, the judgment and award requires to be modified.
6. Having heard the arguments of the learned counsel for the appellant, the points that arise for the consideration of this Court are:
(i) Whether the Court below has committed an error in not awarding just and reasonable compensation and it requires interference of this Court?
(ii) What order?
Point Nos.(i) and (ii):
7. It is the case of the claimant that he has suffered the fracture of femur and patella. He was an inpatient for a period of 20 days and he was subjected to surgery. As a result of the injuries, he has suffered permanent disability. The claimant in order to substantiate his claim, examined the doctor as P.W.3.
P.W.3 in his evidence deposed that he has suffered the disability of 56% to a particular limb and 28% to the whole body. The Tribunal while considering the evidence of P.W.3 has observed that admittedly as on the date of occurrence of the accident, age of the minor claimant is 12 years and therefore there is a possibility of improvement in the future. Therefore, the evidence of P.W.3 about the disability of the petitioner cannot be considered in this case. The very approach of the Tribunal is erroneous. When the documentary evidence is placed before the Court that he has suffered the fracture of femur and patella and when the doctor who has been examined has assessed the disability, the Tribunal ought to have taken note of the evidence of the doctor and considered the same.
8. The Apex Court in the case of Master Mallikarjun (supra) considering the claim of a minor held that the Court has to take note of the nature of injuries and also the disability sustained by the minor petitioner. In paragraph No.12 of the judgment it is held that 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 upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick.
9. In the case on hand, the claimant has suffered disability of 56% to a particular limb and 28% to the whole body as deposed by doctor P.W.3. Having considered the principle laid down in the judgment referred supra, the claimant is entitled for a compensation of Rs.3,00,000/- under the head pain and suffering.
10. The Tribunal awarded an amount of Rs.18,000/- based on the medical bills under the head medical expenses. Hence, I do not find any reasons to interfere with the finding of the Trial Court.
11. Taking into note that the minor claimant was in the hospital for a period of 20 days, it is appropriate to award an amount of Rs.25,000/- under the head discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.
12. In view of the discussions made above, I pass the following:
ORDER (i) The appeal is allowed.
(ii) The judgment and award of the Tribunal is modified granting compensation of Rs.3,43,000/- as against Rs.56,000/- with interest at 6% per annum.
(ii) The Insurance Company is directed to pay the compensation amount within eight weeks from today.
(iv) The office is directed to send back the records forthwith.
Sd/- JUDGE MD