Karnataka High Court

Kumar Netra @ Netravati vs Paulraj S/O P. Devakumar on 21 February, 2022

Bench: S.Vishwajith Shetty

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 21 S T DAY OF FEBRUARY, 2022

                          BEFORE

      THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

               M.F.A. No.103416/2017 (MV)

BET WEEN

KU MARI NETRA @ NETRAVATI,
D/O LINGAPPA UDBAL,
AGE: 08 YEARS,
OCC: STU DENT, MINOR,
UNDER THE GU ARDIANSHIP
OF HER FATHER, LINGA PPA,
S/O HANU MAPPA UDB AL,
AGE: 43 YEARS, OCC: COOLIE,
R/O: RANGAPU R CAMP,
POST: GANDH INA GAR,
TQ: SINDHANUR,
DIST: RAICHU R,
NOW RESID ING AT
C/O: V. KANAKAPPA,
NEAR SRI B ASAVANNA TEPLE,
HIR EJANTAKAL,
GANGAVATH I-58 3227,
DIST: KOPPAL.
                                            ...APPELLANT
(BY SRI HARISH S .MAIGU R, ADVOCATE)

AND

1 .    PAU LRAJ S/O P.DEVAKU MAR,
       AGE: 32 YEARS, OCC: DRIVER,
       R/O: 4 T H WARD, S.N.PET
       AT KAMPLI-583132,
       TQ: HOSPET , DIST : B ALLARI.

2 .    T.KALLESHWARA,
       S/O MAHAB ALESHWARA @ MAHANTESHWARA,
       AGE: 28 YEARS,
                              2




      OCC: OWNER,
      R/O: MAHAJANADAHALLI,
      TQ: HADAGAL I-583220,
      DIST: B ALLARI.

3 .   THE MANAGER,
      SHREERAM GENER AL INSU RANCE
      COMPANY LIMITED,
      S-5, 3 R D FLOOR,
      MONARCH CHAMBERS,
      INFANTR I ROAD,
      SHIVAJ INAGAR,
      B ENGALU RU-560051.
                                        ...RESPONDENTS
(BY SRI NAGARAJ C.KOLLOOR I, ADVOCAT E FOR R3;
 NOTICE TO R1 AND R2 DISPENSED WITH)

     THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 18.03.2 017 PASS ED IN
MVC No.326/ 2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND MEMBER, MOTOR ACCIDENT CLAIMS TRIB U NAL,
GANGAVATH I, PAR TLY ALLOWING THE CLAIM PET IT ION FOR
COMPENSATION      AND    SEEKING  ENHANCEMENT       OF
COMPENSATION.

     THIS APPEA L COMING ON FOR ADMISSION, TH IS DAY
THE COU RT DELIVERED THE FOLL OWING:

                       JUDGMENT

The claimant b eing not satisfied with the quantum

of comp ensation awarded by the Court of Senior Civil

Judge and M.A.C.T., Gangavathi (hereinafter referred

to as the 'Tribunal', for brevity) in MVC No.326/2014

vide its judgment and award dated 18.03.2017 has

approached this Court seeking enhancement of

compensation.

2. Though this appeal is listed for admission,

with the consent of the learned counsels appearing

for the parties, the appeal is taken up for final

disposal. The parties to this appeal are referred to by

their rankings before the Tribunal for the purpose of

convenience.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

On 01.04.2013 at about 5.45 p.m. when the

minor girl Kumari Netra @ Netravathi was traveling in

Hero-Honda motorcycle bearing registration

No.KA-36/R-6775 as a pillion rider from Sathyavathi

Camp to Gandhinagar, the offending lorry bearing

registration No.KA-35/C-9927 which was driven in a

rash and negligent manner dashed against the

motorcycle in which the minor girl was traveling

along with one Sri Amaresh and caused the accident.

In the said accident, Amaresh suffered grievous

injuries and died while the minor claimant who

suffered grievous injuries was admitted initially in a

Government Hospital, Sindhanur and subsequently in

a private hospital. The right hand of the minor girl

was amputated below shoulder as a result of the

injury suffered by her in the accident in question. It

is in this background, the minor claimant represented

by her natural guardian and father had filed a claim

petition under Section 166 of the Motor Vehicles Act,

1988 (for short, the 'Act') claiming compensation of

`15,50,000/- with interest from the driver, owner and

insurer of the offending lorry bearing registration

No.KA-35/C-9927. The said claim petition was partly

allowed by the Tribunal and a compensation of

`1,09,831/- with interest at 6% per annum from the

date of petition till realization was awarded and the

owner and insurer of the offending lorry were held

jointly and severally liable to pay compensation and

the insurer of the offending vehicle was directed to

deposit the compensation amount with interest. Being

not satisfied with the quantum of compensation

awarded, the claimant is before this Court.

4. Learned counsel for the claimant submits

that the compensation awarded by the Tribunal

compared to the injury and disability suffered by the

minor claimant is very meager. He submits that the

minor girl was aged about 4 years as on the date of

accident and as a result of the injury suffered in the

accident, she has lost her right hand which was

amputated below the shoulder. He submits that the

marriage prospects of the girl has diminished and she

will be incurring recurring expenses for the purpose

of artificial limb, future treatment etc., and

accordingly prays to enhance the compensation

amount.

5. Per contra, learned counsel appearing for

the insurer of the offending vehicle has argued in

support of the impugned judgment and award and

submits that the compensation awarded by the

Tribunal is just and proper. He submits that the

injured claimant is a minor girl and there cannot be

any loss of income as such, as she is a non-earning

member. However, he does not dispute the fact that

her marriage prospects have been diminished and

that she may also have to incur the expenses for the

purposes of artificial limb.

6. I have given my anxious consideration to

the arguments addressed on both sides and also

perused the material available on record.

7. The undisputed facts of the case are that in

a road traffic accident that had occurred on

01.04.2013 in which admittedly the offending lorry

bearing registration No.KA-35/C-9927 was involved,

the minor girl Kumari Netra @ Netravati was

grievously injured and as a result of the injury

suffered by her in the accident, her right hand was

amputated below the shoulder. It is not in dispute

that the offending lorry was duly insured by the 3 r d

respondent/Insurance Company and as on the date of

accident, the said policy was in force and therefore

the liability of the Insurance Company is not in

dispute.

8. The only question that arises for

consideration in this appeal is with regard to the

adequacy of compensation awarded by the Tribunal to

the claimant having regard to the injuries and

disability suffered by her in the accident. The

claimant was aged about 4 years as on the date of

accident and as a result of the injury suffered by her

in the accident, her right hand has been amputated

below the shoulder. As per Schedule III of the

Employees' Compensation Act, 1923 in respect of

amputation below shoulder with stump less than 8"

from tip of acromion, the permanent total

disablement is required to be considered at 80%. In

the said event, having regard to the judgment of the

Hon'ble Supreme Court reported in AIR 2014 SC 736

in the case of Master Mallikarjun V/s Divisional

Manager, the National Insurance Company

Limited and another, the claimant would be entitled

for a compensation of `5,00,000/- towards pain and

suffering already undergone and also towards

hardship, inconvenience, discomfort and loss of

amenities in life on account of permanent disability

etc. The injured claimant is a girl who was aged

about 4 years as on the date of accident and since

her right hand was amputated below shoulder, as

rightly contended by the learned counsel for the

claimant, her marriage prospects is definitely

diminished and therefore towards loss of marriage

prospects, she is awarded a compensation of

`3,00,000/-. Towards future medical expenses, there

is no medical evidence available on record. However

this Court cannot loose sight of the fact that the

claimant would be incurring recurring expenses for

the purpose of artificial limb in addition to other

future medical expenses. Therefore, a compensation

of `1,00,000/- is awarded to the claimant towards

future medical expenses which would include the

expenses of an artificial limb. The claimant has

produced the medical bills to the tune of `63,629/-

before the Tribunal and she is entitled for

reimbursement of the same and therefore

compensation of `63,629/- is awarded towards

medical expenses. During the treatment period of the

claimant and also subsequently during the follow up

treatment period, the parents of the claimant would

have lost their income and therefore a sum of

`35,000/- is awarded towards loss of income of the

parents during the treatment period. In all, the

claimant is held to be entitled for a sum of

`9,98,629/-, which is rounded off to `10,00,000/-,

which would be as follows:

       1        Towards       pain       and               `5,00,000/-
                suffering, discomfort, loss
                of future amenities etc.
       2        Towards loss of marriage                   `3,00,000/-
                prospects
       3        Future medical expenses                    `1,00,000/-
       4        Medical expenses                             `63,629/-
       5        Towards loss of income of                    `35,000/-
                the      parents     during
                treatment period
                Total                                      `9,98,629/-
                Rounded off to                            `10,00,000/-

9. The claimant is entitled for interest at 6%

per annum on the compensation amount from the

date of petition till realization. Accordingly, the

following:

ORDER

The Miscellaneous First Appeal is

allowed in part.

The claimant is entitled for a total

compensation of `10,00,000/- as against

`1,09,831/- awarded by the Tribunal. The

compensation amount awarded shall carry

interest at 6% per annum from the date of