1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO MISCELLANEOUS FIRST APPEAL NO.6291 OF 2019(MV-I) BETWEEN:
THE MANAGER, HDFC ERGO GENERAL INSURANCE COMPANY LIMITED., NO.25/1, 2ND FLOOR, SHANKAR NARAYAN BUILDING, (2ND BUILDING) M.G.ROAD, BENGALURU-560001. BY ITS MANAGER (BY SRI. O.MAHESH, ADVOCATE) AND:
1. ROSHAN ZAMMER @ ROSHAN, AGED ABOUT 21 YEAR, S/O DADAPEER, R/O # 847, 14TH CROSS, BEEDI LAYOUT, DAVANAGERE-577001.
2. SHANMUKHAPPA.G.R. MAJOR, S/O RAMAPPA.H.C. RESIDING AT 3616/46, BALAJI NAGAR, ...APPELLANT KUNDAWADA, DAVANAGERE-577001. (R.C.OWNER) 3. SHAIK SABAN SAB, MAJOR, S/O SHAIK KBAR SAB 11TH CROSS, BEEDI LAYOUT, MAGANAHALL ROAD, DAVANGERE-577002. (INSURED) …RESPONDENTS THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT AGAINST THE JUDGEMENT AND AWARD DATED: 13.02.2019 PASSED IN MVC NO.501/2017 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & JMFC, MACT, DAVANAGERE, AWARDING COMPENSATION OF RS.1,20,714/- WITH INTEREST AT 9% PER ANNUM FROM THE DATE OF PETITION TILL THE DATE OF DEPOSIT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is listed for Orders on I.A.1/2019. In the nature and circumstances of this case I.A.1/2019 filed for condonation of delay of 42 days is allowed. Delay in filing is condone and the matter is taken up for final disposal.
2. This appeal is directed against the judgment and award passed in MVC No.501/2017, wherein the claim petition came to be allowed in part and the compensation of Rs.1,20,714/- came to be awarded together with interest at the rate of 9% per annum from the date of the petition till the date of deposit.
3. In order to avoid overlapping and confusion, parties are hereinafter referred to as per their rankings before the Tribunal.
4. The brief facts of the case are: on 31.07.2016, while the petitioner and his friends were going in two motor vehicles from Davanagere to Chitradurga, near Hebbal Toll Gate, on NH-4 road, the rider of motor cycle bearing Reg.No.KA-17/K-6049 rode the vehicle in a rash and negligent manner with high speed and hit against the first respondent’s vehicle bearing Reg.No.KA-17/Q-4464. As a result, the claimant and other persons sustained injuries. Immediately, he was taken to C.G.Hospital and given medical treatment.
5. The injured Roshan Zameer @ Roshan is stated to be a pillion rider of the vehicle on the date of accident and because of the impact of accident he sustained injury of fracture of right leg and the disability was calculated at 40% to the right lower limb and total disability of 10% was taken into consideration by the learned Member and disposed of the case, awarding the compensation as mentioned above. Against which, learned counsel is before this court.
6. Sri.O.Mahesh, learned counsel for the appellant would submit that in the oral evidence, the petitioner – pillion rider has admitted that the negligence was on the other vehicle and not the one on which the case is registered against the rider.
7. The compensation was worked out at Rs.1,20,714/- ie., the compensation of Rs.1,00,000/- under all heads and Rs.20,714/- being the medical expenses.
8. At page No.10, Paragraph No.2 of the judgment, the contentions are as under:
“Motor Vehicles Act, 1988, Section 166 – Claim of compensation – Disability – A child suffered disability in a vehicular accident – Determination of compensation – Principle of assessment – For permanent disability upto 10% appropriate compensation on all other heads in addition to actual expenditure for treatment, attendant etc., should be Rs.1 lakh unless there are exceptional circumstances – If disability in above 10% and upto 30% to whole body, Rs.3 lacs. – Upto 60%, Rs.4 lacs. – Upto 90%, Rs.5 lacs and above 90%, it should be Rs.6 lacs.”
9. It is necessary to place on record the age of the claimant as mentioned in the cause title is 19 years and the learned Member without perusing properly and due lack of application of mind has considered compensation at Rs.1,00,000/- on the basis of percentage plus medical expenses and disability at 10%. Such calculation is done in respect of petitioner – injured who is minor and not for the petitioner like the present one who is aged 19 years. No doubt there is a scope for granting compensation as global one on the merits of the claim.
10. Insofar as the quantum of compensation is concerned, considering the limb disability of 40% reimbursement of medical expenses was granted at Rs.20,714/- and on other heads Rs.1,00,000/-. However, considering the injured disability, the compensation amount Rs.1,20,714/- may be considered as global compensation and the rate of interest awarded by the learned Member deserves to be maintained.
11. In the circumstances of the case, there is no necessity for further proceedings in the case. Hence, the appeal is rejected by confirming the Judgment and Award of the II Additional Senior Civil Judge and JMFC, Davanagere passed in MVC No.501/2017 dated 13.02.2019.
Office is directed to send a copy of this judgment to the learned Member wherever she is working.
The amount in deposit to be transmitted to the Tribunal for disbursement.
Sd/-
JUDGE GH