Karnataka High Court
Arun Kumar S/O Veluswamy vs Chinnaswamy @ Madesha on 4 July, 2022
Bench: Anant Ramanath Hegde
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04 TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
MFA.NO.1768/2012 (MV-I)
BETWEEN:
ARUN KUMAR
S/O VELUSWAMY
AGED 7 YEARS
REPRESENTED BY
HIS NATURAL FATHER
VELUSWAMY,
S/O PALANISWAMY
AGED 29 YEARS,
R/AT AMBIKAPURA VILLAGE,
KOLLEGAL TALUK,
CHAMARAJANAGAR DISTRICT
... APPELLANT
(BY SMT. P. C. SUNITHA, ADVOCATE FOR BSPS
ASSOCIATES)
AND:
1. CHINNASWAMY @ MADESHA
S/O CHENNIYAPPA GOUNDER @ NALLAPPA
AGED ABOUT 38 YEARS
R/AT AMBIKAPURA VILLAGE,
KOLLEGAL TALUK
CHAMARAJANAGAR DISTRICT
2. S NAGENDRA
S/O SEETHARAMASHETTY
AGED ABOUT 45 YEARS
R/AT RAMAPURA VILLAGE,
KOLLEGAL TALUK
CHAMARAJANAGAR DISTRICT
2
3. THE MANAGER
ROYAL SUNDARAM ALLIANZ
INSURANCE CO LTD
1ST MAIN,
SARASWATHIPURAM,
MYSORE.
... RESPONDENTS
(BY SRI. H B NAGARAJA, ADVOCATE FOR R2,
SRI. O. MAHESH, ADVOCATE FOR R3,
V/O DTD: 06.02.2017, NOTICE TO R1 IS DISPENSED)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MV ACT AGAINST THE JUDGMENT AND AWARD DATED
24.07.2010 PASSED IN MVC NO.25/2009 ON THE FILE OF
THE PRESIDING OFFICER, FAST TRACK COURT, MACT,
KOLLEGAL, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned advocate appearing for the
appellant-claimant and the learned advocate
appearing for respondent No.3-Insurance Company.
Notice to respondent No.1 is dispensed with. The
liability of the insurer is not in dispute. The dispute is
on quantum.
2. Brief facts of the case are as under:
That on 21.11.2008 at about 9.00 a.m. when the
claimant, who is a five-year-old boy along with his
mother and grandfather were proceeding to
Bhadrakali Temple in M.M.Hills, Kollegal Main Road, a
bus bearing Reg.No.KA-10-3110 came at a high speed
and in rash and negligent manner and dashed against
the appellant-claimant. The boy fell and sustained
grievous injuries. He was shifted to Mysore
J.S.S.Hospital and thereafter to Apollo Hospital and he
was inpatient for more than ten days.
The claimant filed a claim petition in MVC
No.25/2009 before the Presiding Officer, Fast Track
Court and Motor Accident Claims Tribunal, Kollegal
(hereinafter referred to as 'the Tribunal' for short).
The tribunal by judgment and award dated
24.07.2010 has awarded compensation of
Rs.4,05,000/- along with interest @ 6% per annum
from the date of the petition till the date of deposit.
3. The claimant is dissatisfied with the award
and before this Court seeking enhancement of
compensation. Admittedly, the claimant was aged 5
years at the time of the accident and the claimant
suffered the following injuries:
1. Concussive head injury with a right
partial bone fracture with diffuse
cerebral oedema
2. Open fracture of the left leg with crush
injury with vascular injury.
4. The claimant was inpatient for 10 days and
the doctor assessed the disability of the claimant at
60% to the lower limb. The tribunal has not the
assessed disability of the claimant, however, has
awarded a sum of Rs.1,00,000/- towards disability.
The Tribunal has awarded compensation of
Rs.50,000/- under the head 'pain and suffering' and
no compensation is awarded under the head 'loss of
amenities in life'.
5. The learned counsel for the appellant would
submit that the compensation awarded by the
Tribunal is on the lower side and requires
enhancement. It is her submission that applying the
ratio in the case of Mallikarjun Vs. Divisional
Manager, the National Insurance Company Limited &
Another (2014) 14 SCC 396 , the compensation under
the head of the 'permanent disability' would be around
Rs.3,00,000/- even if the disability is taken at 20% to
the whole body. The disability assessed to the lower
limb is 60%. This Court is of the view that the
disability is to be assessed at 20% to the whole body.
Applying the ratio of the aforementioned case, the
claimant is entitled to compensation of Rs.3,00,000/-
under the aforementioned head.
6. It is also noticed that no compensation is
awarded under the head 'loss of income and
inconvenience to the parents'. Considering the age of
the claimant, number of days of hospitalization
Rs.20,000/- is awarded under the head of 'discomfort,
inconvenience and loss of income to the parent during
hospitalisation'.
7. The tribunal has awarded compensation of
Rs.1,00,000/- under the head of 'permanent disability'
and Rs.50,000/- under the head of 'pain and
suffering'. Since, Rs.3,00,000/- is awarded following
the laid down in Mallikarjun's case supra, the award
of Rs.1,00,000/- under the head 'permanent disability'
and Rs.50,000/- under the head 'pain and suffering' is
required to be set-aside. The compensation of
Rs.2,55,000/- towards medical expenses awarded by
the tribunal is retained.
8. Thus, the compensation awarded by this
Court is as under:
1 Medical Expenditure : Rs. 2,55,000-00
2 Permanent Disability : Rs. 3,00,000-00
3 discomfort, inconvenience : Rs. 20,000-00
and loss of income to the
parent during
hospitalisation
TOTAL : Rs. 5,75,000-00
9. With these observations, the following is
passed:
ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and award
dated 24.07.2010 passed in MVC
No.25/2009, on the file of the
Presiding Officer, Fast Track Court
and Motor Accident Claims Tribunal,
Kollegal, is modified.
(iii) The appellant/ claimant is entitled to
compensation of Rs.5,75,000/- with
interest at 6% per annum from the
date of petition till the date of
realization, excluding 475 days,
delayed period in filing the appeal.
(iv) The respondent-insurer shall deposit
the amount within eight weeks from
the date of receipt of a certified copy
of this order after deducting the
amount, if any, already paid.
(v) Rs.2,00,000/- is ordered to be paid to
the guardian of the minor claimant in
terms of the order of the tribunal.
Balance is ordered to be kept in fixed
deposit in any nationalized bank in
the name of the minor till he attains
majority. The excess compensation
ordered by this Court be kept in fixed
deposit in any nationalized bank in
the name of the minor till he attains
majority.
(vi) Registry to send back the TCR.
Sd/-
JUDGE
DL
