Manoj S/O. Megharaj Gotur vs Jayasheel Kumar Ullatti
2022 Latest Caselaw 11546 Kant

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     IN THE HIGH COURT OF KARNATAKA, DHARWAD
                         BENCH

      DATED THIS THE 26TH DAY OF AUGUST, 2022

                        BEFORE
        THE HON'BLE MR JUSTICE H.P.SANDESH
              M.F.A. NO.24781/2013 (MV)

BETWEEN


MANOJ S/O. MEGHARAJ GOTUR
AGE: 08 YEARS, OCC :NIL
SINCE MINOR, R/BY HIS MOTHER
SAVITRI @ PRIYA W/O. MEGHARAJ GOTUR
AGE: 38 YEARS, OCC:HOUSEHOLD WORK
R/O.LAXMESHWAR
NOW AT NEKAR COLONY, BETAGERI, GADAG
                                          ...APPELLANT
(BY SRI.HARISH S MAIGUR, ADVOCATE)

AND

1.     JAYASHEEL KUMAR ULLATTI
       AGE: MAJOR, OCC: BUSINESS
       R/O. NEELAGAR PETH, BASTI BANA
       LAXMESHWAR

2.     THE DIVISIONAL MANAGER
       THE CHOLAMANDALAM GENERAL INSURANCE
       CO. LTD., DESHPANDE NAGAR, HUBLI

                                        ...RESPONDENTS
(BY SRI. MAHESH WODEYAR AND
SRI.NAVEEN CHATRAD, ADVOCATES BY GPA HOLDER OF R1,
SRI.S.K.KAYAKAMATH, ADVOCATE FOR R2)
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        THIS APPEAL IS FILED U/SEC.173(1) OF MV ACT 1988,
AGAINST JUDGMENT AND AWARD DTD:01.10.2013, PASSED IN
MVC.NO.90/2012 ON THE FILE OF THE ADDITIONAL DISTRICT
AND SESSIONS JUDGE AT GADAG, PARTLY ALLOWING THE
CLAIM        PETITION   FOR    COMPENSATION        AND   SEEKING
ENHANCEMENT OF COMPENSATION.


        THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT,        COMING       ON    FOR     'PRONOUNCEMENT    OF
JUDGMENT',       THIS   DAY,       THE    COURT   DELIVERED   THE
FOLLOWING:

                              JUDGMENT

Heard learned counsel for the appellant and learned

counsel for respondents.

2. This appeal is filed by the claimant challenging

the quantum of compensation awarded in judgement and

award passed in MVC No.90/2012 dated 01.10.2013 on the

file of Additional District and Sessions Judge at Gadag.

3. Factual matrix of the case of the claimant

represented by guardian before the Tribunal is that when

the minor victim was proceeding along with his mother on

the left side of the road, at that time the offending vehicle

came from backside of the claimant and dashed against

him, as a result he fell down and sustained fracture of

femur and also head injury. Immediately he was shifted to

Government Hospital, Laxmeshwar and thereafter to KIMS

Hospital for further treatment. The claimant took

treatment as an inpatient and has spent Rs.1,00,000/- and

as a result of the said injuries, he has become permanently

disabled and hence, claimed compensation of

Rs.8,00,000/-.

4. In pursuance of the notice issued by the

Tribunal, respondent Nos.1 and 2 have appeared,

represented through their counsel and filed their separate

written statements denying the contents of the claim

petition. The claimant in order to substantiate the claim,

examined natural guardian as P.W.1 and got marked

documents as Exs.P.1 to P.10 and also examined doctor as

P.W.2. The respondents have not led any evidence.

5. The Tribunal after considering both oral and

documentary evidence, allowed the claim petition in part

and awarded compensation of Rs.93,000/- with interest at

the rate of 6% p.a.

6. Being aggrieved by the said judgement and

award, the claimant has preferred the present appeal

seeking enhancement of compensation.

7. The main contention of the learned counsel for

the claimant is that the claimant spent an amount of

Rs.75,000/- as medical expenses and the Tribunal has

failed to consider Ex.P.10 i.e. discharge summary, wherein

it is clear that the claimant was admitted to hospital as

inpatient from 01.03.2012 to 26.05.2012 i.e. for a period

of 86 days and was subjected to surgery and the same has

not been considered by the Tribunal and only Rs.10,000/-

has been awarded towards medical expenses.

8. It is also his contention that the evidence of

P.W.1 was clear that prior to the accident the injured

minor was studying in school and he took treatment for a

period of three months and he was subjected to surgery to

his head since the blood was clotted and he was

unconscious upto three months and also surgery was

conducted to left leg and he also took treatment in

different hospitals. It is also contended that there is no

movements in all four limbs and he is in need of an

assistant and the Tribunal ought to have taken disability at

100% and not considered the evidence of doctor who has

spoken that the victim has suffered 70% disability to whole

body. Counsel would also contend that the compensation

awarded under all other heads are very meager and hence

this Court has to revisit material on record and award

appropriate compensation.

9. Counsel in support of his argument, has relied

upon the judgement of Hon'ble Apex Court reported in

(2022) Acci.C.R.473 (S.C.) in the case of Master Ayush

vs. Branch Manager, Reliance General Insurance

Company Limited and Another, wherein the Apex Court

in respect of minor victim comes to the conclusion that he

has lost his childhood and he is dependent on others for

his routine work and mental and physical loss cannot be

computed in terms of money but there is no other way to

compensate the victim except by making payment of just

compensation. The Apex Court awarded compensation of

Rs.49,93,000/- along with 7.5% interest. Counsel would

submit that the victim was aged about 5 years as on the

date of the accident in the said case. The Apex Court has

taken the minimum wages at Rs.3,708 and also added

40% towards future prospects and applied multiplier of 18

and awarded the compensation. Hence, the said judgment

is applicable to the case on hand also.

10. Counsel also relied upon the judgement in

Master Mallikarjun vs. Divisional Manager, The

National Insurance Company Limited and Another

reported in AIR 2014 SC 736, wherein also it is observed

that though it is difficult to have an accurate assessment

of compensation in the case of children suffering disability

on account of motor vehicle accident, having regard to the

relevant factors precedents and the approach of various

High Courts and considering the age of disability, awarded

the compensation.

11. Counsel also relied upon judgement reported in

2020 ACJ 1042 in the case of Kajal vs. Jagdish Chand

and Others, wherein also Apex Court took the income at

Rs.4,846/- per month as per the minimum wages payable

to skilled workmen, added 40% of income towards future

prospects, adopted multiplier of 18 and in all awarded

compensation of Rs.62,27,000/- and it was the accident of

the year 2007 and hence he submits that just and

reasonable compensation needs to be awarded in the

present case also.

12. Per contra, learned counsel for the respondent-

insurance company would vehemently contend that the

Tribunal has not committed any error in appreciating the

material on record and doctor who has been examined

before the Tribunal is not the treated doctor and hence he

cannot assess the actual disability and in the cross-

examination it is elicited that he only assessed the

disability.

13. Counsel in support of his argument, has relied

upon the order passed by this Court in MFA

No.23374/2011 dated 20.01.2017 and this Court made an

observation that the claimant has examined the treating

doctor and a person from KLE Societies Hospital and

Research Centre in order to prove the contents of Exs.P.4

and P.6 and set aside the order with regard to extent of

disability of whole body and directed the Tribunal to

examine the said witness within period of two months.

Counsel also relied upon the judgement of Apex Court

reported in (2011) 1 SCC 343 in the case of Raj Kumar

vs. Ajay Kumar and Another, wherein the Apex Court

held that functional disability as operative criterion

distinguished from physical disability. The Apex Court held

with regard to disability certificate extent of disability of a

limb (or part of the body) cannot be assumed to be extent

of disability of whole body, Tribunal should not

mechanically apply percentage of permanent physical

disability as percentage of economic loss or loss of earning

capacity, but must assess functional disability and

directions given to Tribunals in respect of procedure/steps

to be followed in such cases and failed to take note of

functional disability of the body and hence, the very

contention of the counsel for the claimant that the Tribunal

has not awarded just and reasonable compensation,

cannot be accepted.

14. In view of the rival contentions of the parties,

the following points would arise for consideration:

i. Whether the Tribunal has committed an error in not awarding just and reasonable compensation as contended by the appellant?

ii. What order?

15. Regarding Point No.1: Having heard the

learned counsel for the parties and on perusal of the

material on record, this Court has to consider the oral and

documentary evidence on record. On perusal of the claim

petition, it is contended in column No.11 that injured had

sustained fracture of right tibia and fibula and fracture of

left femur and fracture of right leg and injury to head. The

claimant in order to substantiate the claim examined the

mother of the injured and she has reiterated the contents

of the claim petition in the affidavit stating that he was

inpatient from 01.03.2012 to 25.06.2012 and surgery was

conducted in respect of head injury and he was

unconscious for a period of two months and he was also

subjected to surgery in respect of fracture and claimed

Rs.1,00,000/- towards medical expenses. She has also

reiterated about the disability suffered by the victim i.e.

70% and marking of documents, Exs.P.1 to P.10. She was

subjected to cross-examination. In the cross-examination

it is suggested that they got their son discharged from the

hospital against the medical advice and the said suggestion

was denied.

16. In support of their claim, they also examined

doctor as P.W.2 and doctor says that he examined the

injured and also considered the discharge card and true

copy of case paper and patient OPD case papers and also

latest x-ray dated 22.03.2010. In his affidavit he says with

regard to taking of treatment with regard to road traffic

accident in KIMS hospital. He was diagnosed to have

primary brain injury with distal third femur fracture left. He

was treated conservatively for fracture of brain injury and

he was discharged on request. On examination he found

reduced strength in limbs, inability to sit or stand, inability

to control urine or defecation and deformity, shortening of

left thigh did not subside even on regular physiotherapy

and medication. He further deposed that based on latest x-

ray report which was taken from Gadag Scan Centre shows

malunited fracture of femur. He assessed the disability of

70% physical impairment.

17. He was subjected to cross-examination. In the

cross-examination he admits that he has perused the

inpatient records and he examined him on 22.02.2013 for

the first time. He also admits that he has not given any

treatment. He denies the suggestion that he is not having

such disability. It is also suggested that he has got

disability to particular limb and the said suggestion was

also denied.

18. Having considered both oral and documentary

evidence, particularly, wound certificate which is marked

as Ex.P.4, he has suffered the fracture of frontal bone i.e.

head injury which is grievous in nature and also cut and

lacerated wound on the scalp and also cut and lacerated

wound on ear and apart from that medical records Ex.P.9-

scan report and Ex.P.10-KIMIS Hospital inpatient records

clearly reveal that he had also suffered fracture of distal

1/3rd of femur. The inpatient records of KIMS Hospital at

the first instance disclose that patient was unconscious and

treated in the hospital for a period of 86 days and x-ray

scan report of KIMS Hospital disclose that previously noted

left frontal hemorrhagic contusion resolving, previously

noted subdural haematoma along falx appear to be

resolving and rest of the brain parenchyma depicts normal

attenuation and ventricular system is normal, no evidence

of midline shift. The doctor who has been examined before

the Tribunal is not the treated doctor and the same is

elicited from the mouth of P.W.2 and only he assessed the

disability.

19. On perusal of evidence of P.W.2, he is an

orthopedician and assessed disability at 70% to whole

body and nothing is elicited in the cross-examination with

regard to disability is concerned except the suggestions.

But he says that the injured was initially treated at CHC,

Laxmeshwar and thereafter he was referred to KIMS

Hospital, Hubballi. His evidence is clear that at KIMS

Hospital he was diagnosed for primary head injury with

distal third femur fracture and his evidence is clear that

there is reduced strength in limbs and the injured is unable

to sit and stand and there was shortening of left thigh and

in the cross-examination of P.W.2 regarding disability is

concerned, except suggestions, nothing is elicited.

20. It is important to note that the Tribunal while

passing the order, failed to take note of this material on

record particularly while appreciating the disability while

answering issue No.2. The Tribunal also considered the

admission records from 01.03.2012 to 26.05.2012 nearly

for a period of three months but awarded an amount of

Rs.3,000/- on the head attendant charges and Rs.20,000/-

on pain and suffering and Rs.10,000/- on loss of

amenities, Rs.10,000/- towards food and nourishment and

Rs.10,000/- towards medical expenses. Regarding

disability is concerned, considering evidence of P.W.2, he

has assessed the disability at 70% but the Tribunal has

comes to the conclusion that it is on higher side and comes

to the conclusion that claimant is aged 7 years and

disability would reduce when he reaches the young age

and awarded Rs.40,000/- on the head of disability and in

all granted Rs.93,000/-. The very approach of the Tribunal

is erroneous when the injured has suffered the brain injury

and frontal bone was fractured and there was hematoma

as per the CT scan report. No doubt, in terms of evidence

of P.W.2, the injured was treated conservatively and no

surgery was conducted but the Tribunal has failed to take

note of evidence of P.W.2. Though he is not treated

doctor, nothing is elicited in the cross-examination of

P.W.2 to disbelieve his evidence. The quantum of

compensation awarded on all other heads are also very

meager and hence, this Court has to revisit and reassess

the disability and award just and reasonable

compensation.

21. Counsel appearing for the appellant-claimant

apart from relying upon the jdugement in Master

Mallikarjun, supra, has relied upon the judgement of

Kajal, supra where the girl aged was aged 12 years and

became totally disabled due to head injury and hence the

Apex Court taken the minimum wages and awarded

compensation and this is not the case in the present case

and the injured is not totally disabled and so also in the

case of Master Ayush, supra which has been referred by

the counsel for the appellant, wherein also though injured

was 15 years, the Apex Court has observed that he has

lost his childhood and he is dependent on others for his

routine work and hence taken the minimum wages and

awarded compensation and not found total disability. In

the case on hand, the very assessment made by the doctor

is 70%. However, he deposed that he lost strength in all

the limbs but he is not the treated doctor and the same

has been disputed by the Insurance Company and no

material is placed before the Court to establish that the

injured is totally disabled and not examined the expert

with regard to disability to all the limbs and doctor

examined is also an orthopedician and hence the very

contention of the counsel for the appellant cannot be

accepted. However, the Court can rely upon judgment of

Master Mallikarjun, supra.

22. The other document of x-ray which has been

placed before the Court i.e. Gadag Scan Centre report

dated 22.03.2010, it shows mal united fracture of femur

and I have already pointed out with regard to loosing of

strength in all he limbs and there is no report except the

oral evidence of P.W.2 and hence the same cannot be

accepted as total disability in order to apply the judgement

of the Apex Court in Kajal and Master Ayush.

23. In respect of pain and suffering, the Tribunal

has awarded Rs.10,000/- and having taken note of the

disability, the Apex Court in the judgement of Master

Mallikarjun awarded compensation based on the disability

wherein the disability was up to 18% and an amount of

Rs.3,00,000/- has been awarded. In the case on hand

also, though he is not a treated doctor, the Tribunal ought

to have taken disability of 70% since as per P.W.2 he was

not having strength in all the limbs and the same is on

account of head injury he had sustained and also he had

sustained injury of fracture of femur. If the disability at

70% is taken, the compensation payable on pain and

suffering would be Rs.5,00,000/- upto 90% disability.

The claimant is the minor and mother of claimant is a

natural guardian and she has lost her income during

treatment period. Hospital records disclose that injured

was inpatient for a period of 86 days and when such being

he case, it is appropriate to award Rs.50,000/- on the

head loss of income during treatment period and as well

taking care of minor.

24. The Tribunal awarded Rs.10,000/- on medical

head and having perused the medical bills though it is not

to the tune of Rs.10,000/-, the Tribunal has awarded

Rs.10,000/- and hence I do not find any interference with

regard to quantum of compensation awarded on the head

of medical bills.

25. The doctor who has been examined as P.W.2

has not deposed anything about future medical expenses

and also nothing is suggested with regard to future

medical expenses. However, the injured is aged about 8

years and had sustained facture of femur, which is also

malunitted and in order to provide future treatment in view

of malunion, an amount of Rs.25,000/- is awarded.

Accordingly, point No.1 is answered.

26. Regarding point No.2: In view of the

discussions made above, I pass the following:

ORDER

Appeal is allowed in part.

In modification of the impugned judgment and award

passed by the Tribunal, the claimant is entitled for a sum

of Rs.5,85,000/- as against Rs.93,000/- awarded by the

Tribunal in the impugned judgment and award.

Enhanced compensation shall carry interest at 6%

p.a. from the date of petition till realization and payable

within six weeks from the date of this order.

The compensation of 80% has to be kept in fixed

deposit in any nationalized bank, in the name of the minor,

till he attains the age of majority and remaining 20% is to

be released in favour of the natural guardian of the

claimant along with proportionate interest.

The registry is directed to transmit the trial court

records forthwith.

Sd/-

JUDGE

SH