Karnataka High Court
Kum Inchara vs Yum Restaurants India Pvt Ltd on 13 January, 2021
Author: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD
MFA No.9236 OF 2013(MV)
BETWEEN:
KUM. INCHARA
D/O BASAVARAJU D
AGED ABOUT 5 YEARS
APPELLANT BEING MINOR
IS REPRESENTED BY HER FATHER
AND NATURAL GUARDIAN
BASAVARAJU D, S/O MAYAPPA @ DODDANNA
AGED ABOUT 36 YEARS
R/O NO.121, KATHANAGARA
NEAR GURUDWARA, JALAHALLY WEST
BENGALURU-560 015.
... APPELLANT
(BY SRI. PARAMESHWARAPPA, ADV. )
AND
1. YUM RESTAURANTS INDIA PVT LTD.,
KFC SHOP NO.117,
AG'S LAYOUT, NEW EL ROAD
BENGALURU-94
BY ITS MANAGER.
2
2. THE MANAGER
IFFCO TOKIO GENERAL INS. CO. LTD.,
NO.2, I FLOOR, SNR ARCADE,
AYYAPPA TEMPLE ROAD
JALAHALLI CROSS, PEENYA
BENGALURU-57.
... RESPONDENTS
(BY SRI. D.S.SRIDHAR, ADV. FOR R2:
NOTICE IS NOT ORDER IN RESPECT OF R1)
THIS MFA IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD
DATED: 24.05.2013 PASSED IN MVC NO.3668/2012
ON THE FILE OF THE 21ST ACMM & 23RD ADDITIONAL
SMALL CAUSES JUDGE, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHACEMENT OF COMPENSATION.
THIS MFA COMING ON FOR ORDER 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 24.5.2013 passed by the Motor
Accident Claims Tribunal.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 4.4.2012, the claimant along
with her father were crossing the 7th Cross road, near
Titatnic Hair Style Shop, MSR nagar, at that time,
motorcycle bearing registration No.KA-01-EP-5538 being
ridden by its rider 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, being a minor, represented by
her father filed a petition under Section 166 of the Act
seeking compensation. It was pleaded that he 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 and filed written statements in which the
averments made in the petition were denied.
Respondent No.1 has pleaded that the petition itself is
false and frivolous in the eye of law. It was further
pleaded that the accident was not due to the rash and
negligent riding of the vehicle by the rider. The medical
expenses are denied. Hence, he sought for dismissal of
the petition.
Respondent No.2 has pleaded that the petition
itself is false and frivolous in the eye of law. It was
further pleaded that the accident was not due to the
rash and negligent riding of the vehicle by the rider.
The driver of the offending vehicle did not have valid
driving licence as on the date of the accident. The
liability is subject to terms and conditions of the policy.
Hence, he sought for dismissal of the petition.
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.Purushotham V.J. as PW-2
and got exhibited documents namely Ex.P1 to Ex.P22.
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 riding of the offending vehicle by its rider, as a
result of which, the claimant sustained injuries. The
Tribunal further held that the claimant is entitled to a
compensation of Rs.1,58,500/- 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 is a minor child aged about
4 years. As per wound certificate, she has sustained a)
right arm splint in situ, deformity present, X-ray shows
fracture humerus b) lacerated wound over ventral
aspect right wrist radial pulse not felt. Finger
movements restricted. PW-2, the doctor has stated in
his evidence that the claimant has suffered permanent
physical disability of 23% to right upper limb. She was
treated as inpatient for a period of 5 days in the
hospital. The compensation awarded by the Tribunal is
on the lower side. 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
Tribunal considering evidence of doctor and injuries
mentioned in the wound certificate, 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.
As per wound certificate Ex.P-7, the claimant has
sustained a) right arm splint in situ, deformity present,
X-ray shows fracture humerus b) lacerated wound over
ventral aspect right wrist radial pulse not felt. Finger
movements restricted. PW-2, the doctor has stated in
his evidence that the claimant has suffered permanent
physical disability of 23% to right upper limb. She was
treated as inpatient for a period of 5 days in the
hospital.
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 -v- Divisional Manager,
National Insurance Company Limited and Another
(2014) 14 SCC 396 has awarded compensation of
Rs.3,00,000/- under the head of "pain and suffering
already 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" wherein the disability to whole
body was above 10% and upto 30%.
In the instant case, the claimant is aged about 4
years at the time of the accident. As per the evidence of
PW-2, the claimant has suffered disability to right upper
limb to the extent of 23%. Then the disability to whole
body is one-fourth of the said disability, which comes to
5.75%. Therefore, considering the evidence of the
doctor, injuries mentioned in the wound certificate and
in view of the decision of the Apex Court in the case of
Mallijkarjun (supra), I am inclined to enhance the total
compensation of Rs.1,58,500/- awarded by the Tribunal
to Rs.2,00,000/-.
10. Thus, the claimant is entitled to a global
compensation of Rs.2,00,000/-.
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
