Kiran Jotiba Ghevade vs Parasram Laxman Rajai
2022 Latest Caselaw 3095 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 23 R D DAY OF FEBRUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

                M.F.A. No.101396/2016
         C/W M.F.A. CROB No.100165/2016 (MV)

IN MFA No.101 396/2016

BET WEEN

NATIONAL INSURANCE CO.LT D.,
DIV IS IONAL OFFICE
RAMDEV GALLI, B ELAGAVI,
REP.T HROU GH ITS REGIONAL OFF ICE,
ARIHANT A COMPLEX ,
KU SUGAL ROAD, HUBB ALLI,
REP.B Y ITS MANAGER.
                                            ...APPELLANT

(BY SRI N.R.KU PPELU R, ADVOCATE)

AND

1.    KUMAR KIRAN JOTIBA GHEVADE,
      AGE: 6 YEARS, OCC: NIL,
      SINCE MINOR REP.BY HIS NATU RAL FATHER,
      SRI JOT IB A B HAGANNA GHEVADE,
      AGE: 33 YEARS, OCC: MASON,
      R/O KALMESHAWAR GALLI, AGASAGA,
      TQ. & DIST: B ELAGAVI.

2.    MR.PARASRAM S/O LAXMAN RAJAI,
      AGE: MAJOR, OCC: BUSINESS,
      R/O RAJAI GALL I KEDNU R VILLAGE,
      TQ. & DIST: B ELAGAVI.
                                          ...RESPONDENTS

(BY SMT.GEETHA K.M. @ PAWAR, ADVOCAT E FOR R1;
 NOTICE TO R2 SERVED)
                             2




      THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION 173(1) OF MOTOR VEH ICLES ACT, 1988, AGAINST
THE J UDGMENT AND AWARD DATED 04.02.2 016 PASS ED IN
MVC No.1346/2015 ON THE FILE OF THE VI ADDL.DIS TRICT
AND SESSIONS J UDGE AND MEMBER, ADDIT IONAL MOTOR
ACCIDENT CLAIMS TRIBU NAL, B ELAGAVI, AWARDING THE
COMPENSATION OF ` 3,75,000/- WIT H INT EREST AT THE
RATE OF 9% P.A. FROM 27.06. 2015 TILL REAL IZ ATION AND
`15,000/- WHICH SHALL B E DEPOSIT ED B EFORE THE
TRIB UNAL, WITHIN ONE MONTH FROM THE DATE OF THIS
ORDER.

IN MFA CROB No.100165/ 2016

BET WEEN

KU MAR KIRAN JOTIB A GHEVADE,
AGE: 6 Y EARS, OCC: NIL,
SINCE MINOR REP.B Y HIS NAT URAL FAT HER,
SRI JOT IB A B HAGANNA GHEVADE,
AGE: 33 YEARS, OCC: MASON,
R/O KALMESHAWAR GALL I, AGASAGA,
TQ. & DIST: B ELAGAVI.
                                     ...CROSS OB JECTOR

(BY SMT.GEETHA K.M. @ PAWAR, ADVOCAT E)

AND

1.    SHRI PARAS RAM LAX MAN RAJAI,
      AGE: MAJOR, OCC: BUSINESS,
      R/O RAJAI GALL I, KEDNUR VILLAGE,
      TQ. & DIST: B ELAGAVI- 590010.

2.    THE DIV IS IONAL MANAGER,
      NAT IONAL INSU RANCE CO.LTD.,
      RAMDEV GALL I, B ELAGAV I.
                                        ...RESPONDENTS
(BY SRI N.R.KU PPELU R, ADVOCATE FOR R2)

     THIS    MISCEL LA NEOU S    FIRST   APPEA L    CROSS
OB JECTION IN MFA No.101396/ 2016 IS FILED UNDER
ORDER 41 RU LE 22 OF C.P.C., AGAINST THE JUDGMENT
AND    AWARD    DATED    04. 02.2016   PASS ED   IN   MVC
No.1346/ 2015 ON THE FILE OF THE VI ADDL.D ISTRICT AND
SESSIONS JU DGE AND MEMBER, ADDITIONAL MOTOR
                                    3




ACCIDENT   CLAIMS   TRIBU NAL,    B ELAGAV I, PARTLY
ALLOWING THE CLAIM PET IT ION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL AND CROSS-OB JECTION COMING ON FOR
FINAL H EAR ING, THIS DAY T HE COURT DELIV ERED THE
FOLLOWING:

                            JUDGMENT

The insurer of the offending vehicle and the

claimant have preferred this appeal and cross-ob jection

resp ectively challeng ing the judgment and award

dated 04.02.2016 passed by the Court of VI

Addl.District and Sessions Judge and Addl.M.A.C.T.,

Belagavi (hereinafter referred to as the 'Tribunal', for

brevity) in MVC No.1346/2015 questioning the

quantum of compensation awarded by the Tribunal.

2. Though this appeal and cross-objection are

listed for admission, with the consent of the learned

counsels appearing for the parties, the same are

taken up for final disposal. The parties are referred

to by their rankings before the Tribunal for the sake

of convenience.

3. The undisputed facts of the case are, on

01.06.2015 at about 8.30 a.m. the rider of the

offending motorcycle bearing registration No.KA-22/

EE-7952 who was riding the said vehicle in a rash

and negligent manner dashed the motorcycle to the

minor claimant and caused the accident. In the said

accident, the minor claimant was grievously injured

and he was admitted in a hospital as an inpatient,

wherein he was treated for the injuries suffered by

him. It is under these circumstances, the minor

claimant represented by his father and natural

guardian had filed a claim petition under Section 166

of the Motor Vehicles Act, 1988 claiming

compensation of `7,00,000/- with interest from the

owner and insurer of the offending motorcycle

bearing registration No.KA-22/EE-7952. The said

claim petition was partly allowed by the Tribunal and

a compensation of `3,90,000/- with interest at 9%

per annum was awarded. Being aggrieved by the

quantum of compensation awarded, the insurer as

well as the claimant are before this Court.

4. Learned counsel for the insurer submits

that the compensation awarded by the Tribunal on all

heads is on the higher side. He submits that having

regard to the judgment of the Hon'ble Supreme Court

in the case of Master Mallikarjun V/s Divisional

Manager, the National Insurance Company

Limited and another reported in AIR 2014 SCC

736, the claimant is not entitled for separate

compensation towards loss of future amenities and

towards loss of future income when compensation is

awarded towards pain and suffering. He submits that

the rate of interest awarded by the Tribunal is also

on the higher side.

5. Per contra, learned counsel appearing for

the claimant submits that the compensation awarded

by the Tribunal is on the lower side and prays to

enhance the compensation.

6. I have carefully considered the arguments

addressed on both sides and also perused the

material available on record.

7. The only question that arises for

consideration in these cases is with regard to the

quantum of compensation and the rate of interest on

the same awarded by the Tribunal. The claimant was

aged about 4 years at the time of accident. The

medical evidence available on record would go to

show that the claimant had suffered fracture of upper

shaft of 3 r d left femur in addition to the other simple

injuries. The claimant was operated for the said

injury suffered by him and the evidence on record

would also go to show that the implants were fixed at

the time of operation. The doctor who has treated the

minor claimant was examined as PW2 and he has

stated before the Tribunal that the disability suffered

to the particular limb by the claimant as a result of

the injury was to the extent of 15%. Therefore, the

whole body physical disability is required to be taken

into consideration at 5%. In view of the judgment of

the Hon'ble Supreme Court in the case of Master

Mallikarjun (supra), the claimant would be therefore

entitled for a compensation of `1,00,000/- towards

pain and suffering, discomfort and loss of future

amenities in life etc. In addition to the same, the

claimant is entitled for a sum of `33,000/- towards

medical expenses and also another sum of `25,000/-

towards incidental expenses. The parents of the

claimant would have lost their income during the

period of treatment of the minor claimant and also

during the course of follow up treatment. Therefore,

a sum of `30,000/- is awarded to the minor claimant

towards loss of income of the parents during the

treatment period. The doctor has stated that the

implants fixed are required to be removed and

therefore towards future medical expenses, the

Tribunal has awarded a compensation of `15,000/-

which remains unaltered. In all, the claimant is

entitled for a total compensation of `2,03,000/- as

against `3,75,000/- awarded by the Tribunal.

8. The compensation awarded towards future

medical expenses will not carry any interest. The

remaining compensation amount of `1,88,000/- shall

carry interest at 6% per annum from the date of

petition till realization.

9. The insurer of the offending motorcycle is

directed to deposit the compensation amount with

interest before the Tribunal within a period of six

weeks from the date of receipt of certified copy of

this order.

10. The amount in deposit in MFA

No.101396/2016 filed by the insurer is directed to be

transferred to the Tribunal for the purpose of

disbursement. The order passed by the Tribunal

insofar as it relates to disbursement, deposit etc.,

remains unaltered. Accordingly, Miscellaneous First

Appeal filed by the insurer is partly allowed and

cross-objection is dismissed.

Sd/-

JUDGE

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