Karnataka High Court

Master Mohan vs Boregowda on 6 July, 2021

Author: H.P.Sandesh

                              1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 6TH DAY OF JULY, 2021

                           BEFORE

            THE HON'BLE MR. JUSTICE H.P. SANDESH

                   M.F.A.NO.6312/2012 (MV)
BETWEEN:

MASTER MOHAN
S/O BASAVARAJU
NOW AGED ABOUT 11 YEARS
PERMANENT RESIDENT OF:
TUPPADAHALLI, HIRISAVE HOBLI
C.R.PATNA TALUK
NOW RESIDING AT JENUKAL NAGAR
2ND CROSS, ARSIKERE TOWN
ARSIKERE, HASSAN DISTRICT
(SINCE THE APPELLANT IS MINOR HE IS
REP. BY HIS FATHER BASAVARAJU).              ... APPELLANT

              (BY MRS.KAMALA D.K., ADVOCATE)
AND:

1.     BOREGOWDA
       S/O BASAVEGOWDA
       AGED ABOUT 57 YEARS
       ANATHI VILLAGE
       CHANNARAYAPATNA TALUK
       HASSAN DISTRICT

2.     M/S. UNITED INDIA INS. CO. LTD.,
       REP. BY ITS BRANCH MANAGER
       RAGAVENDRA COLONY
       B.H. ROAD, TIPTUR.                 ... RESPONDENTS

       (BY MRS.BHARATI GANGADHAR, ADVOCATE FOR R2;
                                 2



                NOTICE TO R1 IS DISPENSED WITH
                 VIDE ORDER DATED 10.07.2015)

     THIS M.F.A IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 27.07.2011
PASSED IN MVC.NO.81/2009 ON THE FILE OF SENIOR CIVIL
JUDGE, JMFC, MACT, ARSIKERE, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT
OF COMPENSATION.

     THIS M.F.A. COMING ON FOR ADMISSION THROUGH
'VIDEO CONFERENCE' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                        JUDGMENT

Though the matter is listed for admission today, with the

consent of the learned counsel for both the parties, it is taken up

for final disposal.

This appeal is filed challenging the judgment and award

dated 27.07.2011, passed in M.V.C.No.81/2009, on the file of

the Senior Civil Judge and JMFC, MACT at Arsikere, ('the

Tribunal' for short) questioning the quantum of compensation.

2. The parties are referred to as per their rankings

before the Tribunal to avoid confusion and for the convenience of

the Court.

3. The factual matrix of the case is that the claimant, who

is the minor aged about 9 years, had met with an accident on

07.11.2008 at about 8.30 a.m. in front of Ayodya Hotel near

Arsikere while passing the road on its right-side due to the rash

and negligent driving of the motorcycle bearing registration

No.KA-13-Q-312 by its driver. Due to the accident, he suffered

fractures of linear temporal bone and lacerated wound over left

eye measuring 3cmx2cm and other bodily injuries. In order to

substantiate his claim, examined his father as P.W.1 and also

examined the doctor as P.W.4, who assessed the disability at

10% to the whole body. The respondent neither examined any

witness nor marked any documents. The Tribunal though

discussed in para No.19 of the judgment with regard to the

disability, not accepted the same. Hence, the Tribunal has

committed an error in not considering the disability assessed by

the doctor and also erred in granting compensation of

Rs.25,000/- towards disability taking note of the nature of

injuries. The Tribunal also awarded an amount of Rs.3,000/- on

the head of 'pain and sufferings'; an amount of Rs.2000/-

towards 'nourishment and attendant charges' and an amount of

Rs.2,000/- on the head of 'conveyance and other incidental

expenses' and the same is on the lower side. The Tribunal erred

in awarding the total compensation of Rs.32,000/-, which is

meagre. Being aggrieved by the quantum of compensation, the

claimant has preferred an appeal before this Court.

4. The main contention of the learned counsel

appearing for the appellant is that Tribunal awarded an amount

of Rs.3,000/- on the head of 'pain and sufferings' and also not

awarded any compensation on the 'loss of amenities'. The

Tribunal also not awarded any compensation for the permanent

disability suffered by the claimant. The compensation of

Rs.2,000/- awarded on the head of 'conveyance and other

incidental expenses' is also meagre. Hence, it requires

interference of this Court.

5. Per contra, learned counsel appearing for the

respondent/Insurance Company would submit that the Tribunal

taking note of the nature of injuries, has rightly not accepted the

disability stated by P.W.4. The Tribunal has also not committed

any error in awarding the compensation, which is just and

reasonable. Hence, the same does not require any interference

of this Court.

6. Having heard the arguments of the learned counsel

for the appellant and the learned counsel for the respondent-

Insurance Company, the points that would arise for the

consideration of this Court are:-

(i) Whether the Tribunal has committed an error in not awarding the just and reasonable compensation and whether it requires interference of this Court ?

      (ii)       What order?



Points No.(i) and (ii):-

7. Having heard the respective counsel and also on

perusal of the records, it discloses that the claimant was an

inpatient for a period of 3 days. Ex.P8-wound certificate also

discloses the nature of injuries sustained by the minor claimant

i.e., linear temporal bone and lacerated wound over left eye

measuring 3cmx2cm and other bodily injuries and he was

treated conservatively. In order to substantiate the disability,

the claimant examined the doctor as P.W.4, who assessed the

disability at 10% to the whole body. But the Tribunal not

accepted the same on the ground that the disability is disputed

and the doctor has not properly assessed the disability.

8. Having perused the nature of injures sustained by

the claimant i.e., linear temporal bone fracture, the Tribunal

ought not to have rejected the evidence of the doctor-P.W.4.

Thus, the Tribunal committed an error in not accepting the

disability of the claimant at 10% which has been rightly assessed

by the doctor-P.W.4. That apart, only an amount of Rs.32,000/-

is awarded as the compensation without taking note of the

nature of injuries i.e., head injury sustained by the claimant.

When the claimant has sustained head injury and fracture of

temporal bone, the Tribunal ought not to have discarded the

evidence of the doctor.

9. In view of the recent judgment of the Apex Court in

Mallikarjun v. Divisional Manager, National Insurance

Company Limited and another, reported in (2014) 14

Supreme Court Cases 396, if the disability of the minor

claimant is upto 10%, the Court has to award an amount of

Rs.1,00,000/- towards disability. In the case on hand, the

claimant was an inpatient for a period of 3 days and also took

conservative treatment. When such being the case, the Tribunal

ought to have considered the 'loss of income of the parents' who

have taken care of the minor boy aged about 9 years. Hence, an

amount of Rs.10,000/- is awarded towards 'loss of income of the

parents' taking into note of the fact that the claimant was an

inpatient for a period of 3 days.

10. The Tribunal has not considered Ex.P22-medical bills

on the ground that the same does not bear the name of the

injured claimant. Hence, I do not find any error committed by

the Tribunal in not accepting the said medical bills, which do not

disclose the name of the claimant. When the medical bills are

not reflecting the name of the claimant, the Tribunal is right in

rejecting those bills and not awarding the compensation towards

medical expenses.

Accordingly, in all, the claimant is entitled for the

compensation of Rs.1,10,000/- as against Rs.32,000/-.

11. In view of the discussion made above, I pass the

following:-

ORDER

(i) The appeal is allowed in part.

(ii) The judgment and award passed by the Tribunal is modified by granting compensation of Rs.1,10,000/- with interest at the rate of 6% per annum from the date of petition till realization as against Rs.32,000/-.