Swathy vs H.S. Manjunatha
2021 Latest Caselaw 113 Kant

                        1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 5TH DAY OF JANUARY 2021

                     BEFORE

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

            MFA No.5311 OF 2013(MV)

BETWEEN:

SWATHY
D/O VENKATESH
AGED ABOUT 17 YEARS
MINOR REPRESENTED BY HER
FATHER, VENKATESH
S/O RAMAKRISHNA SHETTY
NAIDU WORKSHOP ROAD
NEAR HEMAVATHI HOSPITAL
NORHERN EXTENSION
HASSAN-573201.
                                    ... APPELLANT
(BY SRI.NAGARAJ DAMODAR, ADV. )

AND

1.    H.S.MANJUNATHA
      S/O SUNDARESH
      NO.EWS 395, KUVEMPU NAGARA
      11TH CROSS, HOUSING BOARD
      HASSAN-573201.

2.    THE NEW INDIA ASSURANCE CO. LTD.,
      REPT. BY ITS BRANCH MANAGER
      HARSHA MAHAL ROAD
                            2



     HASSAN-573201.
                                 ... RESPONDENTS
(BY SRI. S.SHRISHAILA, ADV. FOR R2:
NOTICE TO R1 IS DISPENSED WITH)

    THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 09.10.2012 PASSED IN MVC NO.1286/2009
ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE, MEMBER, ADDITIONAL MACT, HASSAN,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.

    THIS MFA COMING ON FOR ADMISSION,
THROUGH VIDEO CONFERENCE,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 9.10.2012 passed

by the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 22.3.2009 the claimant

along with her brother were proceeding in TVS XL

Super motorcycle bearing KA-13-S-1676 near Zilla

Panchayat Office, Hassan, at that time, lorry bearing

registration No.CRX-7730 being driven by its driver at

a high speed and in a rash and negligent manner,

dashed to the vehicle of 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 on the ground that she was aged about

12 years at the time of the accident and studying in VI

Std. It was pleaded that she also 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 respondent No.2

filed written statement in which the averments made

in the petition were denied. It was pleaded that the

petition itself is false and frivolous in the eye of law.

It was further pleaded that the accident was due to

the rash and negligent riding of the motorcycle by the

rider of the motorcycle. The age, avocation and

income of the claimant and the medical expenses are

denied. It was further pleaded that the driver of the

lorry was not having valid driving licence. Hence, he

sought for dismissal of the petition. The respondent

No.1 did not appear before the Tribunal inspite of

service of notice and was placed ex-parte.

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 was

examined as PW-1 and Dr.Sundar Raj Elluru as PW-2

and got exhibited documents namely Ex.P1 to Ex.P10.

On behalf of the respondents, no witness was

examined and got exhibited document namely Ex.R1.

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.2,10,000/- 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

submitted that the claimant was aged about 12 years

at the time of the accident and was studying VI Std.

As per wound certificate Ex.P-2, she has sustained

deglove injury to left thigh. PW-2, Dr.Sundar Raj

Elluru has deposed that the claimant has suffered

permanent physical disability of 21% and he has

further deposed that she has got pain left leg, left

knee joint weakness and got problem to get up walk

and there problem of movement of left side ankle

joint. The compensation awarded by the Tribunal

towards physical disability is on the lower side. Due to

the accident, the claimant has sustained grievous

injuries. She was treated as inpatient for a period of

20 days. Even after discharge from the hospital, she

was not in a position to discharge his regular work.

She has suffered lot of pain during treatment.

Considering the same, the compensation granted by

the Tribunal under the heads of 'loss of amenities',

'pain and sufferings' and other heads are on the lower

side. In support of his case, he has relied upon the

decision of the Apex Court in the case of Mallikarjun

-v- Divisional Manager, National Insurance

Company Limited and Another (2014) 14 SCC

396. Hence, he sought for allowing the appeal.

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.

The disability stated by the doctor at 21% is to the

particular limb and not to the whole body. The

disability to whole body comes to 7%. She has

continued her studies. Therefore, considering the oral

and documentary evidence, the Tribunal has granted

just and reasonable compensation and it does not call

for interference. Hence, he sought dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the accident has

occurred due to rash and negligent driving of the

offending vehicle by its driver.

10. Regarding awarding of just and fair

compensation to a minor child aged about 12 years,

who sustained injuries in the road traffic accident, the

Apex Court in the case of Mallikarjun (supra) in

paragraphs 12 and 13 has held 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."

13. 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: -

Compensation Head Amount Pain and suffering already 3,00,000 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 Discomfort, inconvenience and 25,000 loss of earnings to the parents during the period of hospitalization Medical and incidental 25,000 expenses during the period of hospitalisation for 58 days Future medical expenses for 25,000 correction of the mal union of fracture and incidental for such treatment TOTAL 3,75,000

11. In the present case, as per wound

certificate Ex.P-2, the claimant has sustained deglove

injury to left thigh. PW-2, Dr.Sundar Raj Elluru has

deposed that the claimant has suffered permanent

physical disability of 21%. Taking into consideration

the evidence of the claimant and PW-2 and injuries

mentioned in the wound certificate, the whole body

disability can be taken at 12%.

In view of the decision of the Apex Court in the

case of Mallikarjun (supra), the claimant is entitled to

the following compensation:

Compensation under Compensation different Heads Amount (Rs.) Pain and suffering already 3,00,000 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 Food, nourishment, conveyance 10,000 and attendant charges Medical expenses 95,000 Total 4,05,000

The claimant is entitled to a total compensation

of Rs.4,05,000/- as against Rs.2,10,000/- awarded

by the Tribunal.

The Insurance Company is directed to deposit

the compensation amount along with interest at 6%

p.a. within a period of four weeks from the date of

receipt of copy of this judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is allowed in part.

Sd/-

JUDGE

DM