IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S.G. PANDIT MISCELLANEOUS FIRST APPEAL NO.789 OF 2013 (MV-I) BETWEEN:
SRI YASHWANTH R SIDDESH, S/O RAJESHEKAR MURTHY, AGED ABOUT 9 YEARS, REP. BY NATURAL GUARDIAN, FATHER RAJESHEKAR MURTHY, R/AT SHILVANTHAPURA VILLAGE, GUNDALPET –TALUK, CHAMRAJNAGARA DISTRICT – 571313. …APPELLANT (BY SRI H.V.DARSHAN, ADVOCATE FOR SRI H.V.BHANUPRAKASH, ADVOCATE) AND:
1. SRI RAJAKUMAR, S/O KUPPASWAMY P, AGED ABOUT 31 YEARS, D.NO.525, 1ST MAIN, MARUTHI TEMPLE ROAD, KUMVEMPUNAGAR, MYSORE – 570 001. (OWNER OF MOTOR-CYCLE BEARING NO.KA-09-EM-9858).
2. THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., MUSLIM HOSTEL COMPLEX BUILDING, SARASWATHIPURAM, MYSORE – 570 001, (INSURER OF MOTOR-CYCLE BEARING NO.KA-09-EM-9858) POLICY NO.422802/31/2011/1316 VALID FROM 10.06.2010 TO 09.06.2011.
...RESPONDENTS (BY SRI H.C.BRUSHABHENDRAIAH, ADVOCATE FOR R2, R1- NOTICE DISPENSED WITH VIDE ORDER DATED: 21.10.2014) **** THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED:27.08.2012 PASSED IN MVC NO. 67/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-2, MEMBER, ADDITIONAL MACT, MYSORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The claimant is in appeal not being satisfied with the quantum of compensation awarded under the judgment and award dated 27.08.2012 passed in M.V.C. No.67/2012 by the Presiding Officer, Fast Track Court-II and Member, Additional Motor Vehicles Accident Claims, Mysore.
02. The claim petition was filed under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘Act’ for short), claiming compensation for the injuries suffered by the claimant - Master Yashwanth R.Siddesh who was aged eight years as on the date of the incident in a road traffic accident. It is stated that, on 18.03.2011 when the claimant was walking on the left side of the road and at that time, motor cycle bearing registration No.KA-09-EM-9858 came in a rash and negligent manner and dashed against him, due to which, he sustained injuries on the right temporal bone and other parts of the body, who was treated at B.G.S. Apollo Hospital, Mysore.
03. On issuance of notice, respondent No.2 – Insurance Company appeared and filed objections denying the entire claim petition averments, but admitted the issuance of the Policy. It is further stated that, the rider of the motor cycle was not having effective and valid Driving Licence as on the date of the accident. It is also stated that the claimant himself was responsible for the accident. On behalf of the claimant, the father of the claimant was examined as PW1 and also examined PW2 and PW3, apart from marking Exhibits-P1 to P14. On behalf of the respondents, Exhibit-R1 was got marked.
04. The Tribunal based on the materials made available before it, awarded a total compensation of Rs.1,40,000/- with interest at the rate of 6% per annum from the date of petition till realization, on the following heads:
The claimant not being satisfied with the quantum of compensation awarded by the Tribunal, is before this Court in this appeal, praying for enhancement of compensation.
05. Heard the learned counsel for the appellant and the learned counsel for the respondent – insurer. Perused the materials on record.
06. The learned counsel for the claimant/ appellant submits that the quantum of compensation awarded by the Tribunal for the injuries sustained by the claimant is on the lower side. He submits that, the Doctor – PW3 has deposed that the claimant – minor suffers from 20% whole body disability, whereas, the Tribunal has assessed the whole body disability at 10%, without there being any reason. He further submits that, the head injuries suffered by the claimant has affected the further studies of the claimant. As he has suffered whole body disability at 20%, as deposed by the Doctor, the claimant would be entitled for a compensation of Rs.3,00,000/- as per the decision of the Hon’ble Apex Court in the case of Master Mallikarjun vs. Divisional Manager, National Insurance Company Ltd. & another, reported in AIR 2014 SC 736.
07. Per contra, learned counsel for the respondent –Insurer submits that, the compensation awarded by the Tribunal is just and proper and there is no need to interfere with the judgment and award passed by the Tribunal. He further submits that, the Tribunal committed an error in assessing the whole body disability at 10% when the Doctor states that the claimant has suffered whole body disability at 20% and that the Tribunal ought to have taken 1/3rd of the assessment given by the Doctor. He further submits that, the compensation awarded on various heads are just compensation, which needs no interference.
08. Having heard the learned counsel for the parties and on perusal of the materials on record, including the lower court records, the following points arise for consideration in this appeal:
i. Whether the whole body disability assessed by the Tribunal at 10% is proper and correct?
ii. Whether the appellant/claimant would be entitled for enhanced compensation?
The answer to the above points is in the affirmative for the following reasons.
09. The accident occurred on 18.03.2011 and accidental injuries suffered by the claimant involving motor cycle bearing registration No.KA-09-EM-9858 are not in dispute in this appeal. The claimant/appellant has preferred this appeal for enhancement of compensation.
10. The claimant has placed on record Exhibit- P8 – Discharge summary with lab reports; Exhibit-P9 – Inpatient record and Exhibit-P4 – Wound Certificate, to establish the injuries suffered by him. Further, the claimant has examined PW3 – Dr. Ramesh Ranganathan, who is said to be the Doctor who has treated the claimant. As per the Discharge summary – Exhibit-P8, the claimant has suffered the following injuries:
i. Post traumatic seizures.
ii. Fracture right temporal bone extending to right – petrous bone with right cerebellar contusion and thin right posterior fossa Sub dural hematona.
iii. Hemangioma liver (right lobe) 11. PW3 – Doctor, in his evidence has stated that the claimant was admitted to his Hospital with history of road traffic accident with severe head injury and post traumatic seizures. Further, the Doctor has deposed that the claimant suffers from 15% mild memory loss which affects his education. Further, he has stated that the claimant suffers 20% permanent disability to the whole body in view of the head injury, which is both function and physical. He also stated that he has assessed the disability based on the W.H.O. guidelines.
12. In the cross-examination, nothing adverse has been elicited from PW3 – Doctor. He has reiterated in the cross-examination that the claimant suffers from 20% whole body disability. The Doctor has adviced that on clinical examination of the claimant, he has come to the conclusion that the claimant suffers from 15% mild memory loss.
13. The Tribunal assessed the whole body disability of the claimant at 10% on the ground that the father of the claimaint-PW1 has not deposed that the petitioner gets headache while studying and also while traveling and on the ground that no documents are produced to prove the memory loss and headache. The Doctor has categorically stated that the claimant suffers from 20% whole body disability due to head injury and 15% memory loss, which affects the education of the claimant, that too an young boy of eight years of age as on the date of the accident. As such, the Tribunal committed an error in considering the whole body disability at 10% against the evidence of the Doctor. The Doctor’s evidence is explicit that the claimant suffers from 20% whole body disability. The Hon’ble Apex Court in Master Mallikarjun’s case supra, has held at para 12 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 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 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:-
Sl.
No.
Particulars Amount 01 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.
Rs.3,00,000/-
02 Discomfort, inconvenience Rs.25,000/-
and loss of earnings to the parents during the period of hospitalization.
03 Medical and incidental expenses during the period of hospitalization for 58 days.
04 Future Medical expenses for correction of the mal union of fracture and incidental expenses for such treatment.
Rs.25,000/-
TOTAL Rs.3,75,000/-
14. As the claimant has suffered 20% whole body disability, as per the above decision, if the disability is between 10% upto 30%, one would be entitled for a sum of Rs.3,00,000/-. In the instant case also, as the claimant suffers from 20% whole body disability, he would be entitled to a sum of Rs.3,00,000/- on the head of pain and suffering, discomfort, loss of amenities, etc. In addition, the claimant would be entitled for actual medical expenses and incidental expenses. Thus, the claimant would be entitled for the following modified compensation:
15. Thus, the claimant would be entitled for a total sum of Rs.3,75,000/- (Rupees Three Lakhs Seventy Five Thousand only) with interest at the rate of 6% per annum from the date of petition till realization, as against a sum of Rs.1,40,000/- awarded by the Tribunal.
The Miscellaneous First Appeal is allowed in part.
The judgment and award dated 27.08.2012 passed in M.V.C. No.67/2012 by the Presiding Officer, Fast Track Court-II and Member, Additional Motor Vehicles Accident Claims, Mysore, is modified to the above extent.
Out of the compensation of Rs.3,75,000/-, a sum of Rs.2,00,000/- shall be kept in Fixed Deposit in any nationalized or scheduled Bank for a period of five years in the name of the minor claimant, with liberty to draw periodical interest.
Sd/- JUDGE SJ