IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE S.G.PANDIT MISCELLANEOUS FIRST APPEAL No.7058/2015 (MV-I) C/W MISCELLANEOUS FIRST APPEAL No.7658/2015 IN M.F.A.No.7058/2015 BETWEEN:
The Managing Director, K.S.R.T.C. Central Office, K.H.Road, Shanthinagar, Bengaluru – 27.
Now through Chief Law Officer, K.S.R.T.C., Bangalore.
(By Sri. Nagaraja K., Advocate) AND:
Master. Harshath Gowda V.R., S/o Ramaiah, Aged about 16 years, R/at Valagerepur Village and Post, Amruthur Hobli, Kunigal Taluk, Tumkur District.
(Permanent Address), ...Appellant The Claimant being minor, Represented by his father And Natural Guardian, Mr.B.S.Ramaiah, S/o late Kullappa Shanegowda, Aged about 43 years, Presently R/at No.45, 2nd Cross, 4th Main, Vrushabhavathi Layout, Kamkshipalya, Bengaluru – 79. (Present Address).
…Respondent (By Smt.Sree Vidya G.K., for Sri. T.N.Viswanatha, Advocates) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 15.06.2015 passed in MVC No.4287/2014 on the file of the Judge, Court of Small Causes, 26th MACT, ACMM, (SCCH – 09), Bengaluru, Awarding a compensation of Rs.2,53,000/- with interest @ 6% p.a. from the date of petition till its realization.
IN M.F.A.No.7658/2015 BETWEEN:
Master. Harshath Gowda V.R., S/o Ramaiah, Aged about 16 years, R/at Valagerepur Village and Post, Amruthur Hobli, Kunigal Taluk, Tumkur District.
(Permanent Address), Appellant being minor, Represented by his father And Natural Guardian, Mr.B.S.Ramaiah, S/o late Kullappa Shanegowda, Aged about 43 years, Presently R/at No.45, 2nd Cross, 4th Main, Vrushabhavathi Layout, Kamkshipalya, Bengaluru – 79.
(By Smt. Sree Vidya G.K., for Sri. T.N.Viswanatha, Advocates) AND:
The Managing Director, K.S.R.T.C. Central Office, K.H.Road, Shanthinagar, Bengaluru – 560 027.
...Appellant …Respondent (By Sri. Nagaraja K., Advocate) This Miscellaneous First Appeal is filed under Section 173(1) of MV Act against the Judgment and Award dated 15.06.2015 passed in MVC No.4287/2014 on the file of the Judge, MACT, Court of Small Causes, 26th ACMM, (SCCH – 09), Bengaluru, partly allowing the claim petition for compensation and seeking enhancement of compensation.
These Miscellaneous First Appeals coming on for Admission, this day, the Court delivered the following:
J U D G M E N T Both claimant and KSRTC are in appeal aggrieved by the judgment and award dated 15.06.2015 in MVC No.4287/2014 on the file of Court of Small Causes and MACT, Bengaluru.
2. Claim petition was filed under Section 166 of the Motor Vehicles Act, claiming compensation for the accidental injury sustained by the claimant in a road traffic accident. Claimant was a minor as on the date of accident. It is stated that on 22.09.2014, the claimant was traveling in KSRTC bus bearing registration No.KA- 06-F-635. Due to rash and negligent driving of the driver of the said bus, tyre got burst and mud guard of the bus came in contact with wheel axel. Due to which, the accident took place and claimant sustained grievous injuries. Claimant was hospitalized and he took treatment as inpatient.
3. On issuance of notice the respondent- Corporation appeared before the Tribunal and filed its written statement denying the claim petition averments. Respondent-KSRTC also denied the occurrence of accident and denied the accident having taken place due to rash and negligent driving of the driver of the bus. It is also stated that the compensation claimed is exorbitant and excessive. The claimant examined himself as PW1 and PW2-Doctor, apart from marking Ex.P1 to P19. Respondent examined RW1-Driver of KSRTC bus.
4. Tribunal on appreciating the material placed on record awarded total compensation of Rs.2,53,000/- (Rupees Two Lakhs Fifty Three Thousand Only) with interest at the rate of 6% p.a. from the date of petition till its realization on the following heads;
SI.No. Heads Amount in (Rs.) 1. Non pecuniary damages like pain and sufferings, loss of future income and amenities and happiness 2. Attendant charges, nutritious expenses and transportation charges 2,00,000 2,000 3. Medical expenses 31,000 4. Future medical expenses 20,000 Total 2,53,000 5. Tribunal while awarding the above compensation assessed the whole body disability at 14.7%. The respondent-Corporation on the ground of grant of excessive compensation is before this Court. Whereas the claimant not being satisfied with the compensation awarded by the Tribunal, is before this Court in appeal praying for enhancement of compensation.
6. Heard the learned counsel for the appellant- claimant and the learned counsel for respondent-KSRTC and perused the appeal papers including lower Court records.
7. Learned counsel for the respondent- Corporation would submit that the compensation awarded by the Tribunal is on the higher side and prays for reduction of the same. It is his submission that the Doctor has opined that the claimant suffers from 29.4% disability to a particular limb, whereas the Tribunal has considered the whole body disability at 14.7%, which is improper. It is further submitted that the whole body disability is to be assessed at 1/3rd to a particular limb. Therefore, the Tribunal ought to have assessed the whole body disability at 9.5%. It is further submitted that the Tribunal committed an error in awarding excess compensation on the other heads . Thus prays for allowing the appeal.
8. Per contra, learned counsel for the claimant would submit that the compensation awarded by the Tribunal is on the lower side when compared to the injuries sustained by the claimant. Tribunal failed to assess the disability. He further submits that as per the decision of the Hon’ble Apex Court reported in 2013 ACJ 2445 (ILR 2013 Karnataka 4891) in the case of Master Mallikarjuna Vs Divisional Manager, National Insurance Co., Ltd., and another the claimant would be entitled for a sum of Rs.3,00,000/- on the head of pain and suffering, physical shock, hardship, inconvenience and discomforts, apart from compensation on other heads. Thus prays for enhancement of compensation.
9. Having heard the learned counsel for the parties and on perusal of the entire record, including lower Court records, the only point which arises for consideration in the facts and circumstances of the case is;
“Whether the compensation awarded by the Tribunal is just compensation in the facts and circumstances of the case””
The answer to the above point is in the ‘negative’ for the following reasons;
10. The accident is of the year 2014. The occurrence of the accident involving KSRTC bus bearing registration No. KA-06-F-365 and accidental injuries sustained by the claimant are not in dispute in this appeal. The appellant-KSRTC submits that the compensation awarded by the Tribunal is on the higher side. It is submitted that the Doctor has opined that claimant suffers from 29.4% disability to a particular limb and the whole body disability assessed by the Tribunal at 14.7%, is improper and is on the higher side. It is stated that while assessing the whole body disability, 1/3rd of the disability to a particular limb is to be taken into account. In the present case, PW-2-Doctor who examined on behalf of the claimant states that the claimant suffers from 29.4% disability to a particular limb. Claimant has suffered injury to right ankle joint.
Normally whole body disability would be assessed at 1/3rd of the disability to a particular limb. In the instant case the Doctor has opined that the claimant suffers from 29.4% disability to a particular limb and if 1/3rd of the disability to a particular limb is taken, the whole body disability would come to 9.8%. The Hon’ble Apex Court in the case of Master Mallikarjun quoted supra held in 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 Re.1 lakh, unless there are exceptional circumstances to take different yardstick.”
11. On reading of the above decision of the Hon’ble Apex Court makes it clear that wherever the claimant-minor suffered disability upto 10% he would be entitled for a sum of Rs.1,00,000/- (Rupees One Lakh Only) on the head of pain and suffering undergone, mental and physical shock, hardship and inconvenience and discomforts apart from Rs.20,000/- for the discomfort, inconvenience and loss of earning to the parents during the period of hospitalization, Rs.25,000/- towards medical and incidental expenses incurred during the hospitalization, apart from Rs.25,000/- for future medical expenses. In the instant case, as the claimant has suffered 9.8% disability to the whole body and as the claimant was inpatient for four days, I am of the view that the claimant would be entitled for modified compensation as follows:
12. Thus, the claimant would be entitled for a total compensation of Rs.1,81,000/- (Rupees One Lakh Eighty One Thousand Only) with interest at the rate of 6% per annum from the date of petition till the date of realization as against the amount of Rs.2,53,000/- awarded by the Tribunal.
The judgment and award dated 15.06.2015 passed in MVC No.4287/2014 is modified to the above extent. Appeal of the corporation in MFA No.7058/2015 is allowed in part, whereas, the appeal of the claimant in MFA No.7658/2015 is dismissed.
Amount in deposit be transmitted to the concerned Tribunals.
Sd/- JUDGE BVK