Bhavaneppa vs Aishwarya
2022 Latest Caselaw 1128 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 25 T H DAY OF JANUARY, 2022

                       BEFORE

   THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

             M.F.A.CROB No.100059/2016
                        C/W
             M.F.A.No.100703/2015 (MV)

IN M.F.A.CROB No.100059/2016

BET WEEN

SRI.B HAVANEPPA S/O SHIVAJEPPA DAVLE,
AGE: 40 YEARS, OCC: SERVICE,
R/O:KARJIGI, T Q: DIST: HAVER I.
                                          ...APPELLANT
(BY SRI. M.H.PATIL AND SRI. V.S.GADAD ADVOCATE FOR
CROSS OB JECTOR)

AND

KU MARI. AISHWARY A D/O ADIVEPPA PEDDAR,
AGE: 13 YEARS, OCC: STU DENT,
SINCE MINOR REPRESENTED B Y HER NEXT FRIEND
NATU RAL GUARDIAN FATHER SRI.ADIVEPPA S/O
DURAGAPPA PEDD AR,
AGE: 34 YEARS, OCC: COOLIE,
R/O. MOTEBENNUR VILLA GE, T Q: BY ADAGI,
DIST: HAVER I.
                                         ...RESPONDENT
(BY SRI.SIDDA PPA SAJJ AN, ADVOCATE FOR R1)

      THIS M.F.A. CROB IS FILED U /O 41 RULE 22 OF CPC
R/W SEC.173( 1) OF MOTOR VEH ICLE S ACT, 1988, AGA INST
THE JUDGMENT AND AWARD DAT ED 01.01.2015, PASSED IN
MVC No. 239/2012 ON T HE FIL E OF THE PRL. SENIOR CIVL
JUDGE AND MEMBER ADDIT IONAL M OTOR ACCIDENT CLAIMS
TRIB UNAL, HAVERI, AWARDING T HE COMPENSAT ION OF
`53,500/- WITH INT EREST AT 6% P .A. FROM THE DATE OF
                            2




PET IT ION T ILL THE      DATE   OF   DEPOSIT ING    OF
COMPENSATION A MOU NT .

IN M.F.A.No.100703/2015 (MV)

BETWEEN

KU MARI. AISHWARY A D/O ADIVEPPA PEDDAR,
AGE: 12 YEARS, OCC: STU DENT,
SINCE MINOR REP B Y M/G FATHER,
SRI. ADIVEPPA S/O DURARAPPA PEDDAR,
AGE: 33 YEARS, OCC: COOLIE,
R/AT: MOT EB ENNUR, T Q: B YADAGI,
DIST: HAVER I.
                                           ...APPELLANT
(BY SRI.SIDDA PPA S. SAJJ AN, ADVOCATE)

AND

  1.   SRI. MARU TI SHANKRAPPA S INDE,
       AGE: 39 YEARS, O CC: DRIVER OF THE VEHICLE,
       R/AT: KANAVALLI, TQ AND DIST : HAVERI.

  2.    SRI. B HAVANEPPA S/O SIVAJEPPA DA VLE,
        AGE: 39 YEARS, O WNER OF THE VEHICLE,
        R/AT: KARJIGI, TQAND DIST: HAVERI.
                                        ...RESPONDENTS
(BY SRI. R.H.ANGADI, ADVOCAT E FOR R1 AND R2)
(BY SRI M.H. PATIL, ADVOCATE FOR R1)
(NOC OB TAINED)

      THIS MISCELLANEOUS FIRST APPEA L IS FILED UNDER
SECTION.173( 1) OF MOTOR VEH ICLES ACT, 1988, AGA INST
THE JUDGMENT AND AWARD DAT ED 01.01.2015, PASSED IN
MVC No. 239/2012 ON T HE FIL E OF THE PRL. SENIOR CIVL
JUDGE AND MEMBER ADDIT IONAL M OTOR ACCIDENT CLAIMS
TRIB UNAL,   HAVERI,  PART LY  AL LOWING   T HE   CLAIM
PET IT ION   FOR     COMPENSATION      AND      SEEKING
ENHANCEMENT OF COMPENSATION.

     THESE A PPEA LS COMING ON FOR ADMISS ION, T HIS
DAY THE COU RT DELIVERED THE FOLLOW ING:
                                    3




                             JUDGMENT

The claimant and the owner of the offending

vehicle have p referred this appeal and cross appeal

challenging the judgment and award d ated 01.01.2015

passed by Princip al Senior Civil Judge and Member,

Addl.M.A.C.T., Haveri in MVC NO.239/2012.

2. Though the matters are listed for orders,

with the consent of the learned counsels appearing

for the parties, the same are taken up for final

disposal. The parties to these appeals are referred to

by their rankings before the Tribunal for the sake of

convenience.

3. Brief facts of the case that would be

relevant for the purpose of disposal of these appeals

are:

The minor claimant had filed MVC No.239/2012

under section 166 of the Motor Vehicles Act, 1988

(hereinafter referred to as the 'Act', for brevity),

claiming compensation of `10,50,000/- with interest

from the respondents on account of injury sustained

by her in the road traffic accident that had taken

place on 04.11.2011. It is the case of the claimant

that on 04.11.2011 at about 5.00 p.m. when she was

walking along with her grandfather near a Darga in

Karjagi Village, the offending motorcycle bearing

registration No.KA-27/K-9811 which was driven in a

rash and negligent manner dashed against the minor

claimant and caused the accident. The minor claimant

was grievously injured in the said accident and she

had suffered a compound fracture in her right leg.

Immediately thereafterwards she was shifted to the

hospital, wherein she was treated as an indoor

patient. It is under these circumstances, the claim

petition was filed claiming compensation from the

driver and the owner of the offending motorcycle.

The tribunal partly allowed the claim petition

awarding compensation of `53,500/- with interest at

6% per annum from the date petition till realization

and saddled the liability to pay the compensation

amount jointly on respondent Nos.1 and 2. Being

aggrieved by the quantum of compensation awarded

by the tribunal, the claimant as well as the owner of

the motorcycle have preferred the appeal and cross

appeal before this Court.

4. Learned counsel for the claimant submits

that having regard to the injury suffered by the

claimant, the compensation awarded is very meager.

He submits that though the doctor has assessed the

disability to the limb at 30 to 40%, the tribunal has

taken the disability at 15% to the whole body which

is on the lower side. He submits the tribunal has also

not granted any compensation towards loss of income

to the parents during laid up period and accordingly

he prays to allow the appeal.

5. Per contra, learned counsel appearing for

the owner of the offending vehicle submits that the

tribunal had granted excess compensation. He

submits that the doctor examined before the tribunal

had not treated the injured claimant and therefore no

reliance can be placed on his evidence. Therefore he

prays to reduce the compensation awarded by the

tribunal.

6. I have carefully appreciated the arguments

addressed on both sides and also perused the

material available on record.

7. The undisputed facts of the case are that

on 04.11.2011, the claimant had met with an

accident and had suffered grievous injuries. In the

said accident, the motorcycle bearing registration

No.KA-27/K-9811 which belongs to the 2nd

respondent-owner was involved. The claimant had

suffered compound fracture injury on her right leg

and she was admitted in the hospital for a period of

28 days. She had undergone treatment for the

fracture injuries and also other simple injuries

suffered by her in the accident. PW.2 doctor on the

basis of medical records of the claimant has assessed

the disability of the injured claimant in respect of the

particular limb at 30 to 40%. Even if the disability to

the limb is taken at 30% and compared to the whole

body, the disability is required to be taken at 10%.

The Hon'ble Supreme Court in the case of Master

Mallikarjun Vs. Divisional Manager, National

Insurance Company Limited and another reported

in AIR 2014 SCC 736 has held that in case of

children suffering disability if the permanent

disability is up to 10%, a sum of `1,00,000/- is

required to be awarded as compensation. In addition

to the said amount, the minor claimant is entitled for

the actual medical expenses incurred by him.

Therefore the compensation of ` 5,000/- awarded by

the tribunal towards medical expenses stands

undisturbed. The minor claimant was admitted in the

hospital for a period of 28 days. Even

thereafterwards she would have been laid up in her

house for the purpose of follow up treatment.

Therefore the parents of the minor claimant would

have lost their income during the laid up period of

the minor claimant. Accordingly a sum of `20,000/- is

awarded towards loss of income to the parents during

laid up of the claimant. Under the circumstances, the

claimant is entitled for a total compensation of

`1,25,000/- as against sum of `53,500/- awarded by

the tribunal.

8. The enhanced compensation amount shall

also carry interest at 6% per annum from the date of

petition till realization. Admittedly the offending

vehicle is not covered under the insurance policy and

therefore respondent Nos.1 and 2 are jointly and

severally liable to pay the compensation amount to

the claimant and they are directed to deposit the

entire compensation amount with interest within a

period of six weeks from the date of receipt of

certified copy of this order.

9. The amount in deposit in Cross Objection

No.100059/2016 filed by the owner of the offending

vehicle is directed to be transferred to the tribunal

for the purpose of disbursement.

Out of the total compensation amount, 50% of

amount shall be realized in favour of the minor

claimant and the balance 50% of award amount shall

be deposited in nationalized bank till the minor

attains age of majority. Accordingly, the appeal filed

by the claimant is allowed in part and the cross

appeal filed by the owner is dismissed.

Sd/-

JUDGE

AC/ CL K