Kum Aishwarya H vs Sri Abdul Khader
2021 Latest Caselaw 3832 Kant

                          1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF NOVEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE E.S.INDIRESH

              M.F.A. NO.8521/2015 (MV)

BETWEEN:

KUM AISHWARYA H
D/O HANUMAN SINGH,
AGED ABOUT 13 YEARS,
R/AT NO.50, KHAJIHOSAHALLI,
HOSAKOTE TALUK,
BENGALURU

PETITIONER BEING MINOR
REPRESENTED BY HIS FATHER
HANUMAN SINGH,
S/O GOPALA SINGH,
AGED ABOUT 41 YEARS,
AS A NATURAL GUARDIAN
WORKING AT
E-8 SUB DIVISION,
BESCOM KALYANNAGAR,
BANGALORE-560 043
                                         ... APPELLANT

(BY SRI GURUDEVA PRASAD, K T, ADVOCATE)

AND:

1. SRI ABDUL KHADER
   S/O ISMAIL KHADER
   R/AT S. NO.193, 9TH BLOCK
   KATTIPALLA, SURATHKAL
   MANGALURU - 578 128.
                                2


2. UNITED INDIA INSURANCE CO. LTD
   TP-HUB, NO.18, KRUSHIBHAVAN
   6TH FLOOR, NRUPATHUNGA ROAD
   OPP. HUDSON CIRCLE
   BENGALURU-560 001.

                                    ... RESPONDENTS
(BY SRI RAVISH BENNI, ADVOCATE FOR R2;
R1 SERVED)

     THIS MISCELLANEOUS FIRST APPEAL IS FILED
UNDER SECTION 173(1) OF MOTOR VEHICLE ACT AGAINST
THE JUDGMENT & AWARD DATED 28.02.2015 PASSED IN
MVC NO.1011/2014 ON THE FILE OF THE V ADDITIONAL
SMALL CAUSES JUDGE AND XXIV ACMM, MEMBER, MOTOR
ACCIDENT CLAIMS TRIBUNAL, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL COMING ON FOR FURTHER ORDERS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

This appeal is preferred by the claimant challenging

the judgment and award dated 28.02.2015 passed in MVC

No.1011/2014 on the file of Motor Accident Claims Tribunal

and V Additional Small Causes Judge and XXIV ACMM,

Bangalore, (for short hereinafter referred to as 'Tribunal')

seeking enhancement of compensation.

2. For the sake of convenience, the parties in this

appeal shall be referred to in terms of their status and

ranking before the Tribunal.

3. Facts in brief for the adjudication of this appeal

are that, on 28.12.2013 at about 01.30 p.m., the claimant

was proceeding as a pillion rider on the motorcycle bearing

registration No.KA-08/EN-3038, being driven by her father-

Hanuman Singh, on Hosakote-Khajihosahalli main road,

and when they reached near Kere-kodi cross, a car bearing

registration No.KA-29/MC-5154 dashed against the

motorcycle and due to said impact, the claimant sustained

severe injuries. Immediately, she was shifted to Hosmat

Hospital for treatment. It is the case of the claimant that

on account of the alleged accident, she suffered permanent

disability and as such, filed MVC No.1011/2014 on the file

of the Tribunal, seeking compensation.

4. After service of summons, respondent No.1

unrepresented and placed ex-parte. Respondent No.2-

Insurance Company entered appearance and filed written

statement denying the averments made in the claim

petition and sought for dismissal of the claim petition.

5. On the basis of rival pleadings, the Tribunal has

formulated issues for its consideration. In order to prove

the case, father of claimant examined as PW1 and

examined Doctor as PW2 and got marked 16 documents as

Exs.P1 to P16. On the other hand, no oral or documentary

evidence was adduced on behalf of respondents. The

Tribunal, after considering the material on record, by its

judgment and award dated 28.02.2015 allowed the claim

petition in part and awarded compensation of Rs.1,09,000/-

with interest at the rate of 6% p.a. from the date of the

petition till realisation. Being not satisfied with the

quantum of compensation awarded by the Tribunal, the

claimant has presented this appeal seeking enhancement of

compensation.

6. I have heard Sri Gurudeva Prasad K.T., learned

counsel appearing for the appellant and Sri Ravish Benni,

learned counsel appearing for respondent No.2-Insurance

Company.

7. Sri Gurudev Prasad K.T., learned counsel for

the appellant contended that the compensation awarded by

the Tribunal is on the lower side and requires to be

enhanced as per the law declared by the Hon'ble Supreme

Court in case of Mallikarjuna Vs. National Insurance

Company reported in (2014)14 SCC 396.

8. Sri Ravish Benni, learned counsel for

respondent No.2-Insurance Company contended that the

award made by the Tribunal is just and proper and does not

call for interference in this appeal.

9. Heard the learned counsel appearing for the

parties and considered the finding recorded by the Tribunal

and perused the records. The perusal of Ex.P8-Wound

Certificate, shows that the claimant has sustained left

compound vertical fracture Patella with CLW over right

knee, which is grievous in nature. It is also forthcoming

from the finding recorded by Tribunal that claimant was

aged about 12 years at the time of accident and therefore, I

find force in the submission of learned counsel appearing

for the appellant with regard to placing the reliance on the

law declared by the Hon'ble Apex Court in the case of

Mallikarjuna referred supra. Considering the deposition of

PW2-Doctor, who assessed disability of the victim at 11%

to the whole body and following principle laid down by the

Hon'ble Apex Court in the case of Mallikarjuna (supra),

the claimant is entitled for compensation of Rs.3,00,000/-,

as against Rs.1,09,000/- awarded by the Tribunal. In that

view of the matter, judgment and award of the Tribunal

passed in MVC No.1011/2014 is accordingly modified. The

claimant is entitled for a total compensation of

Rs.3,80,000/- along with interest at the rate of 6% p.a.

from the date of the petition till realisation.

Sd/-

JUDGE

SB