Kum Devika vs Cholamandalam
2021 Latest Caselaw 6267 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 16TH DAY OF DECEMBER 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.1808 OF 2019(MV)

BETWEEN:

KUM DEVIKA
D/O MOODALAPPA
AGED ABOUT 16 YEARS
MINOR
REPTD. BY FATEHR AND
NATURAL GUARDIAN
FIRST FRIEND
SRI MOODALAPPA
S/O LATE KAMBANNA
AGED ABOUT 52 YEARS
R/O YADALADAKU VILLAGE
SIRA TOWN-572 137
TUMAKURU DISTRICT
                                    ...APPELLANT

(BY SRI.V B SIDDARAMAIAH, ADV.)

AND

1.    CHOLAMANDALAM
      MS GENERAL INSURANCE CO.LTD.,
      JAGALURU MAHALINGAPPA TOWERS
      OPP. SRIRAM MANDIRA TEMPLE
      6TH FLOOR
                            2



     GOLDEN HEIGHTS BUILDING
     RAJAJINAGAR
     BENGALURU-560 010
     REPRESENTED BY ITS
     BRANCH MANAGER.

2.   SRI VENKATESH H
     S/O LAKSHMANAPPA
     AGED ABOUT 42 YEARS
     R/O PARASHURAMPURA
     CHALLAKERE TALUK-577 522
     CHITRADURGA DISTRICT.
                                       ...RESPONDENTS

(BY SRI.B.PRADEEP, ADV. FOR R1:
NOTICE TO R2 IS D/W V/O DATED: 31.01.2020)

     THIS MFA IS FILED U/S 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED
30/08/2018, PASSED IN MVC NO.574/2017, ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC., AND
ADDITIONAL MACT, SIRA, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.

     THIS MFA COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                      JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 30.8.2018 passed

by the Motor Accident Claims Tribunal, Sira in MVC

574/2017.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 27.1.2017, the claimant was

proceeding on her bicycle on the extreme left side

footpath of Sira-Amarapura road from Kurubara

Ramanhalli to Yadaladaku and near

Veerabommanahalli gate, at that time, Mahindra

Bolero pickup luggage bearing registration No.KA-16-

C-0039 being driven by its driver at a high speed and

in a rash and negligent manner, dashed to the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that she spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. On service of notice, the respondents

appeared through counsel and on respondent No.1

filed written statement in which the averments made

in the petition were denied.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The father of the claimant

himself was examined as PW-1 and Dr.S.Sridhar was

examined as PW-2 and got exhibited documents

namely Ex.P1 to Ex.P16. On behalf of the

respondents, neither any witness was examined nor

any document was produced. The Claims Tribunal, by

the impugned judgment, inter alia, held that the

accident took place on account of rash and negligent

driving of the offending vehicle by its driver, as a

result of which, the claimant sustained injuries. The

Tribunal further held that the claimant is entitled to a

compensation of Rs.375,000/- along with interest at

the rate of 6% p.a. and directed the Insurance

Company to deposit the compensation amount along

with interest. Being aggrieved, this appeal has been

filed.

6. The learned counsel for the claimant has

contended that the claimant was aged about 14 years

at the time of the accident and she was a student

studying in VIII Std. She has sustained displaced bone

lower 1/3rd shaft of right humerus, fracture with

parietal bone fracture. PW-2, the doctor has stated in

his evidence that the claimant has suffered disability

of 51% and 17% to whole body. He has further

deposed that due to the injuries, there is restriction in

the movement of her right hand and the same will

affect her writing to the extent of 36%. The overall

compensation awarded by Tribunal is on the lower

side. Hence, he sought for enhancement of

compensation.

7. On the other hand, the learned counsel for

the Insurance Company has contended that the

injuries sustained by the claimant are minor in nature.

PW-2, the doctor has stated in his evidence that the

claimant has suffered disability of 51% and 17% to

whole body. The Tribunal considering the injuries

sustained by the claimant, has rightly assessed the

whole body disability at 17%. Further, the Tribunal

relying on the judgment of Apex Court in the case of

Mallikarjun -v- Divisional Manager, National

Insurance Company Limited and Another (2014)

14 SCC 396 has rightly awarded just and reasonable

compensation and it does not call for interference.

Hence, he sought for dismissal of the appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the claimant has

sustained injuries in the road traffic accident occurred

due to rash and negligent driving of the offending

vehicle by its driver.

The claimant was aged about 14 years at the

time of the accident and she was a student studying in

VIII Std. As per wound certificate, she has sustained

displaced bone lower 1/3rd shaft of right humerus,

fracture with parietal bone fracture. PW-2, the doctor

has stated in his evidence that the claimant has

suffered disability of 51% and 17% to whole body. He

has further deposed that right humerus is not united

and due to the injuries, there is restriction in the

movement of her right hand to the extent of 36%.

Since the claimant was a student studying in VIII

Std and the disability would affect her studies and

future, I am inclined to award a sum of Rs.50,000/- in

addition to compensation of Rs.3,75,000/- awarded by

the Tribunal.

10. In the result, the appeal is allowed in

part. The judgment of the Claims Tribunal is modified.

The claimant is entitled to a total compensation

of Rs.4,25,000/-.

The Insurance Company is directed to deposit

the compensation amount along with interest @ 6%

p.a. from the date of filing of the claim petition till the

date of realization, within a period of six weeks from

the date of receipt of copy of this judgment excluding

interest for the compensation awarded under the head

of 'future medical expenses'.

In view of disposal of the appeal, I.A.1/2021

filed for posting does not survive for consideration and

accordingly, it is dismissed.

Sd/-

JUDGE

DM