Karnataka High Court
Mahesh S/O Sanjay Kotagi vs P Shiva S/O Palanivelu on 2 December, 2021
Bench: Ravi V.Hosmani
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 2 N D DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAVI V.HOSMANI
M.F.A.No21462/2013(MV)
BETWEEN:
MAHESH S/O SANJ AY KOTAGI,
AGE: 17 YEARS , OCC: MILK VENDIN G AND ST UDENT,
MINOR R/BY M/G NATURAL FATHER,
SHRI. SANJAY S/O BASAVANNI KOTA GI,
AGE: 40 YEARS , OCC: MASON ,
R/O CHAVADI GALLI, PANT BALEK UNDRI,
TQ: DIST: BELGA UM.
... APPELLANT
(BY SRI.HARIS H S . MAIGUR, ADVOCATE)
AND
1. SHRI.P.SHIVA S/O PA LANIVALU,
AGE: MAJOR, OCC: BUSINESS ,
R/O NIRMAL NIWAS, 1 S T CROSS ,
NEHRU NAGAR, BELGAUM.
2. THE DIVISIONAL MANAGER,
NEW INDIA ASSURANCE CO. LTD.,
D.O., CLUB ROAD, BELGAUM .
... RES PONDENTS
(BY SRI.VITTHAL S.TELI , ADV OCATE FOR R1)
(BY SRI. S.V .YAJI, ADVOCATE F OR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOT OR
VEHICLES A CT, 1988, PRAYING TO MODIFY THE JUDGMENT
AND AWARD PASS ED IN M.V .C. No .13/ 2011, ON THE FILE OF
PRL. SR. CIVIL J UDGE AND ADDL. M.A.C.T ., BELGA UM, AT:
BELGA UM, DATED 31.07.2012 BY A LLOWING THIS APPEAL.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT , D ELIV ERED THE F OLLOW ING:
2
JUDGMENT
Challenging the judgment and award dated
31.07.2012 passed by Prl. Senior Civil Judge and Addl.
M.A.C.T., Belagaum (for short, 'the Tribunal') in MVC
No.13/2011, this appeal is filed by claimant seeking for
enhancement of compensation.
2. Though this appeal is listed for admission, with
the consent of learned counsel for parties, it is taken up
for final disposal.
3. Sri.Harish S.Maigur, learned counsel for
claimant/appellant submits that in an accident that
occurred on 09.09.2010, minor Mahesh Kotagi sustained
injuries when the bus bearing Registration no.KA-22/B-
1409 dashed against minor, while he was riding bicycle. In
accident, minor sustained injuries and admitted to
hospital. Despite treatment, he sustained physical
disability.
4. As per Ex.P4-wound certificate and P.12-
disability certificate, claimant sustained disability to right
upper limb due to decaying injuries and also fracture of
upper 1/3 r d of right alna. It was submitted that claimant
had also examined doctor S.R.Angadi, Orthopedic who
deposed about examining claimant and issuing disability
certificate.
5. Relying upon decision of Hon'ble Supreme Court
in case of MASTER MALLIKARJUN Vs. DIVISIONAL
MANAGER, THE NATIONAL INSURANCE COMPANY
LIMITED AND ANOTHER reported in AIR 2014 Supreme
Court 736, learned counsel submitted that award of total
compensation of Rs.1,03,352-00 was not commensurate
and sought for enhancement.
6. On the other hand, Sri.Vittal S.Teli, learned
counsel for respondent no.1/owner on whom liability was
fastened by Tribunal supported award and opposed
enhancement. It was submitted that disability sustained
by claimant was not severe and over all consideration,
compensation awarded is just and proper and no
enhancement was called for.
7. Learned counsel Sri.S.V.Yaji for insurer
submitted that Tribunal has absolved the liability of
insurer that there was no insurance as on date of accident
and therefore, insurer was rightly discharged.
8. From above submissions, occurrence of accident
due to rash and negligent driving by bus driver and
claimant sustaining injuries therein are not in dispute.
Tribunal has assessed compensation and passed award
against respondent no.1/owner. Owner has not filed
appeal challenging award. Therefore, liability of owner to
pay compensation is also not in dispute. Claimant was a
minor who sustained physical disability which is also not
in dispute. Dispute is only regarding quantum of
compensation. Recognizing improbabilities of determining
compensation in respect of non-earning minor children
due to sustaining permanent physical disability, Hon'ble
Supreme Court has involved structured formula for award
of compensation. PW.2 has assessed limb disability to an
extent of 35% due to malunited fracture of lateral
condoyle of right humerus and malunited fracture
olecranon process of the right alna. There are implants in
situ. Claimant is a young boy of 15 years. Whole body
disability would be within 10 to 30%. Therefore, as per
decision in the case of MASTER MALLIKARJUN would be
entitled to a compensation of Rs.3,00,000/-. Tribunal has
awarded Rs.33,352/- towards medical and other incidental
expenses. Claimant would be entitled to a sum of
Rs.33,352/- in addition to sum of Rs.3,00,000/-.
Therefore, claimant would be entitled for total
compensation of Rs.3,33,352/-.
9. In the result, I pass the following:
ORDER
Appeal is allowed.
Claimant is entitled for total
compensation of Rs.3,33,352/- along with
interest at the rate of 6% per annum from
the date of claim petition till deposit.
On deposit, 50% of compensation
amount is to be released in favour of
claimant and remaining 50% of amount
should be kept in fixed deposit in any
nationalized bank for a period of three years.
Sd/-
JUDGE
H MB
