Karnataka High Court

Kumar Sachin S/O Mahantesh ... vs Shri. Sanjay S/O Basavanni Kamble on 13 January, 2022

Bench: S.Vishwajith Shetty

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 13 T H DAY OF JANUARY, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S.VISHWAJITH SHETTY

              M.F.A. No.100609/2018 (MV)

BET WEEN

1.    KUMAR SACHIN,
      S/O MAHANTESH BEDASU R,
      AGE: 12 YEARS,
      OCC: STUDENT. NOW NIL L,
      R/O: H.NO-154, 3 R D CROSS,
      VANTAMU RI COLONY, B ELAGAVI,
      TQ AND DIST: B ELAGAVI, PIN: 590005.

      SINCE MINOR REPRESENT ED B Y MINOR
      GU ARDIAN NATURAL FATHER-

      SHRI. MAHANT ESH S/O BASAPPA B EDASU R,
      AGE: 40 YEARS,
      OCC: CONSTRUCT ION COOLIE,
      R/O: H.NO-154, 3 R D CROSS,
      VANTAMU RI COLONY, B ELAGAVI,
      TQ AND DIST: B ELAGAVI, PIN: 590005.
                                           ...APPELLANT

(BY SRI.HANAMANT R. LATU R, ADVOCATE)

AND

1.    SHRI SANJAY S/O B ASAVANNI KAMBLE,
      AGE: 50 YEARS, OCC: BU SINESS,
      R/O: H.NO.313, ASHRAYA COLONY,
      RUKMINI NAGAR, BELAGAVI,
      PIN:590 001, TQ AND DIST: B ELAGAVI.

2.    HDFC ERGO GENERAL INSURANCE COMPANY LTD.,
      NO.25/ 1, B UILDING NO.2, 2 N D FLOOR,
      SHANKAR NARAYAN BU ILDIN G, M.G.ROAD,
                                  2




     B ENGALU RU-560001, DIST:B ENGALU RU,
     R/B Y BY ITS MANAGER.
                                         ...RESPONDENTS

(BY SRI.NAGARAJ C.KOLLOOR I, ADVOCATE FOR R2)
(NOT ICE T O R1 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 04.11.2 017 PASS ED IN
MVC No. 621/2015 ON THE FILE OF THE X- ADDIT IONAL
DISTR ICT SESSIONS JU DGE AND MEMBER, ADDIT IONAL
MOTOR ACCIDENT CLAIMS TRIB UNAL, B ELAGAVI, PARTLY
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 being not satisfied with the

comp ensation amount award ed by The Additional MACT,

Belag avi, in MVC No.621/2015, vid e the impugned

judgment and award d ated 04.11.2017, has p referred

this appeal seeking enhancement of the comp ensation

amount.

2. Though this appeal is listed for admission

with the consent of learned advocates appearing on

both sides the same is taken up for hearing.

3. Brief facts of the case that would be

relevant for the purpose of disposal of this appeal

are:

On 27.02.2015 at about 5.30 p.m. when the

minor claimant was walking on the side of the road,

the rider of the offending motor cycle bearing

registration No.KA-22/X-8527 who was riding the

motor cycle in a rash and negligent manner, dashed

against the minor claimant causing the accident in

question, in which the minor-claimant suffered

grievous injuries. The minor claimant was aged about

nine years at the time of accident. He was

immediately shifted to private hospital for treatment.

Thereafter he had filed claim petition under section

166 of the Motor Vehicles Act, 1988, claiming

compensation from the respondents towards injuries

suffered in the accident in question. The offending

vehicle was insured by 2 n d respondent-insurer and

the same was valid at the time of accident. The

tribunal vide the impugned judgment and award

partly allowed the claim petition and granted

compensation of `2,00,000/- with interest at 6% per

annum from the date of claim petition till realization.

The insurer of the offending vehicle was saddled with

the liability to pay the compensation amount.

4. Learned counsel appearing for the claimant

submits that the compensation awarded by the

tribunal is on the lower side. He submits that the

tribunal ought to have taken into consideration the

notional income of the minor and accordingly granted

compensation towards loss of future earning

capacity. He has relied upon the judgment of the

Hon'ble Apex Court in Civil Appeal No.735 of 2020 in

the case of Kajal Vs. Jagadishchand in AIR 2020

sc 776 AIROnline 2020 SC 136 and others, and he

submits that the doctor has assessed the disability

to the lower limb at 30% and the fracture of left

Parietal bone has been completely lost sight of the

tribunal while awarding compensation. He also

submits that the compensation awarded under other

heads is also on the lower side.

5. Per contra learned counsel for the insurer

has argued in support of the impugned judgment and

award and submits that there is no error in the

judgment and award passed by tribunal. He submits

that judgment of the Hon'ble Apex Court in the case

of Kajal (Supra) would not be applicable to the facts

of the present case and the said judgment has been

passed under exceptional circumstance, having

regard to the facts of the said case. Accordingly, he

prays to dismiss the appeal.

6. I have carefully considered the rival

arguments and also perused the material evidence

available on record. The accident in question and

involvement of the offending motorcycle in the said

accident is undisputed and so also the fact that the

minor-claimant was injured in the said accident and

the offending vehicle was duly insured by insurer as

on date of accident is also not in dispute. In the

accident in question the minor claimant had suffered

the following injuries:

1. fracture of proximal 1/3 r d femur with butterfly fragments.

2. fracture of left parietal bone.

          3.     swelling   and   deformity     of    left
                 thigh.

          4.     lacerated wound     of   2x    1    cm.,
                 behind left ear.

Out of the said injuries the injury number one and

two are termed to be grievous in nature. The doctor

who has been examined on behalf of claimant has

spoken to the treatment and the injuries suffered by

the claimant and has assessed the permanent

disability to the left lower limb of the minor claimant

at 30%. Taking the same in to consideration the

tribunal has assessed the whole body disability at

10% and thereafter relying upon judgment of Hon'ble

Apex Court in the case of Master mallikarjun Vs.

Divisional Manager National Insurance Company

Ltd., and another reported in ILR 2013 Karnataka

4841 has awarded a compensation of ` 1,00,000/- to

the claimant while assessing the non pecuniary

damages. The judgment of the Hon'ble Supreme

Court in the case of Kajal (supra) was in case where

minor girl aged about 12 years had suffered 100%

disability and it is under said circumstances the

Hon'ble Supreme Court had made a departure from

the normal rule while considering the grant of

compensation towards non pecuniary damages, as

held in the case of Master Mallikarjun's case

referred to supra. In Kajal's case the Hon'ble

Supreme Court has said that, it is only having regard

to the facts of the said case as an exception to the

normal rule a departure was made. In my considered

view having regard to the facts of this case and

considering the nature of injuries and the percentage

of disability suffered by the claimant herein, the

judgment of the Hon'ble Supreme Court in the case of

Kajal cannot be made applicable and on the other

hand, in this case the principles laid down by the

Hon'ble Supreme Court in Master Mallikarjun is

required to be followed. However, it has to be noticed

that the Tribunal has granted a compensation of

`1,00,000/- towards non-pecuniary damages only

taking into account the disability suffered by the

minor claimant on the left lower limb, the left

parietal bone fracture suffered by the claimant has

been completely lost sight of the Tribunal and no

compensation has been awarded by the Tribunal

towards the said injury. Under the circumstances, I

am of the considered opinion that the minor claimant

is entitled for additional sum of `25,000/- towards

pain and suffering in respect of the said injury.