Karnataka High Court
Naveen S/O Kondayya vs H Yellappa Bongale on 13 July, 2022
Bench: P.Krishna Bhat
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MFA No. 21656 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE P.KRISHNA BHAT
MISC. FIRST APPEAL NO. 21656 OF 2010 (MV-I)
BETWEEN:
NAVEEN S/O KONDAYYA
AGE 21 YEARS, OCC:COOLIER/O ANAVATTI, NOW
AT, UMASHANKAR NAGARRANEBENNUR
...APPELLANT
(BY SRI.NAVEEN B CHATRAD, ADVOCATE)
AND:
1. H YELLAPPA BONGALE
S/O HANUMANTAPA AGE MAJOR OCC:OWNER OF
TRACTOR TRAILOR UNIT BEARING NO.KA 15/T0-
861TRAILER KA 15/T-971R/O MAIN ROAD
ANAVATTITQ:SORAB
2. THE DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD
Digitally signed L.E.A.COMPLEXDHARWAD
by JAGADISH T
R
Location: HIGH
COURT OF ...RESPONDENTS
KARNATAKA,
DHARWAD
Date: 2022.07.14 (BY SRI. S.C. JAINAR, ADV. FOR R2) (R1-SERVED)
10:17:30 +0530
THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST
THE JUDGMENT AND AWARD 19-02-2009 PASSED IN MVC
NO.555/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN) &
MEMBER, ADDL. MACT, RANEBENNUR, PARTLY ALLOWING THE
CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING.
-2-
MFA No. 21656 of 2010
JUDGMENT
This appeal is at the instance of the claimant seeking
enhancement of compensation awarded under judgment
and award dated 19.02.2009 in MVC No.555/2003 by the
learned Civil Judge (Sr.Dn.) & Addl. MACT, Ranebennur
(for short, 'Tribunal').
2. Brief facts are that on 12.01.2003 at about
10.30 a.m., while the claimant, who is a minor, was
proceeding on his bicycle near Anavatti Bus stand, Tractor-
Trailer bearing registration No.KA-15/T-861 & 971 driven
by its driver in a rash and negligent manner and in high
speed came and dashed against the bicycle of the claimant
resulting in serious injuries to him.
3. Before the learned Tribunal, owner of the
Tractor-Trailer in question remained exparte. The
Insurance Company contested the proceedings by filing its
statement of objections.
MFA No. 21656 of 2010
4. During trial, mother of the claimant was
examined as PW1 and Medical Expert was examined as
PW2 and Exs.P1 to P114 were marked. The respondents
did not examine any witness but Policy of Insurance was
marked as Ex.R1.
5. Learned Tribunal upon hearing the learned
counsel on both sides and perusing the records, allowed
the claim petition in part awarding a compensation of
Rs.4,40,000/- with interest thereon at 6% per annum from
the date of petition till date of payment.
6. Learned counsel appearing for the
appellant/claimant submits that the claimant having
suffered amputation of right leg above the knee on
account of the accident, will not be in a position to engage
himself in gainful employment and he being a semi literate
minor, disability caused to him should be assessed in a
realistic manner and if so viewed, he has suffered 100%
disability in terms of his earning capacity and therefore,
MFA No. 21656 of 2010
the learned Tribunal ought to have computed
compensation based on the said touch stone and
compensation awarded is on the lower side and therefore,
appeal is required to be allowed.
7. Sri. S.C. Jainar, learned counsel appearing for
the respondent/Insurance Company, per contra,
vehemently contends that the claimant was a minor and
since he has suffered amputation of right leg above the
knee, he is not rendered totally disfunctional for all
purposes and he can engage himself in some useful
activities and therefore, compensation awarded by the
learned Tribunal by taking his physical disability at 40% is
just and reasonable which does not call for any
interference. He therefore, submits there is no merit in
the appeal and it is liable to be dismissed.
8. I have given my anxious consideration to the
submissions made on both sides and I have also perused
the records carefully.
MFA No. 21656 of 2010
9. There is no dispute insofar as the fact that the
claimant who was a minor at the time of the accident had
suffered amputation of right leg above the knee in the
motor vehicle accident. As a matter of fact, Ex.P7 is
Disability Certificate issued by Surgeon, Mc.Gann Hospital,
Shimoga, where the claimant had undergone treatment.
It clearly mentions that there was above knee amputation
of right leg of the claimant. Medical Officer has assessed
the disability to the extent of 65% to 70% to the whole
body.
10. In a similar case, this Court in MFA
No.25028/20101 has held that in such cases, it is unjust
and harsh to hold that the claimant would be in a position
to engage in some activities and earn his/her livelihood
albeit to a lesser extent than a normal person. Once it is
not disputed that the accident has resulted in minor
claimant suffering amputation of right leg above the knee,
it follows that even for his mobility he has to rely on
Ms. Priyanka Pradeep Gavade Vs. Divisional Manager, New India Assurance Co.
Ltd., disposed off on 28.06.2022
MFA No. 21656 of 2010
crutches. For such a person, there will be little or no
demand in the labour market so as to enable him to earn
his livelihood when the fact of life is that there are large
number of youth unemployed in this country looking for
any kind of employment. Therefore, this Court in the
aforesaid case by placing reliance on a decision of the
Hon'ble Apex Court in the case of Kajal v. Jagdish Chand
and others2 and Master Ayush v. Branch Manager,
Reliance General Insurance Co. Ltd., and another3,
has held that the functional disability suffered by the
claimant should be taken at 100%. Accordingly, in this
case also, the functional disability of the claimant is
required to be assessed at 100%.
11. Insofar as notional income of the claimant is
concerned, since he is a minor, again following the
decision of the Hon'ble Apex Court in Kajal (supra),
notional income of the claimant has to be taken at
Rs.4,846/- per month. 40% of the said income is required
(2020) 4 SCC 413
3 2022 SCC online SC 375
MFA No. 21656 of 2010
to be added towards loss of future prospects by following
the decision of the Hon'ble Apex Court in National
Insurance Company Limited Vs. Pranay Sethi and
Others4, Jagadish Vs. Mohan & Others5, Sandeep
Khanuja Vs. Atul Dande6, Erudhaya Priya Vs. State
Express Transport Corporation Limited7 and also
decision of Division Bench of this Court in New India
Assurance Company Ltd. Vs. Abdul M Tahasildar8.
Appropriate multiplier applicable to his age is '18'
(claimant was aged 14 years at the time of the accident).
Therefore, compensation towards loss of earning is
required to be recomputed as follows:
Rs.4,846 + 40% x 12 x 18 = Rs.14,65,430/- which is
rounded off to Rs.14,66,000/-
12. Under the head of pain and suffering,
Rs.1,00,000/- is required to be awarded. Learned
Tribunal has awarded Rs.30,000/- towards medical
4 AIR 2017 SC 5157
(2018) 4 SCC 571
6 (2017) 3 SCC 351
7 2020 SCC Online SC 601
8 MFA 103807/2016 & MFA 103835/2016, dated 27.05.2022
MFA No. 21656 of 2010
expensed and it is maintained. Learned Tribunal has
awarded a sum of Rs.10,000/- under the head of
attendant charges and it is maintained. Another sum of
Rs.10,000/- is required to be awarded towards
conveyance, food & nourishment charges. Under the head
of loss of amenities and future happiness, Rs.2,00,000/-
is required to be awarded. Further, on account of severe
disability, his marriage prospects is definitely affected and
therefore, a sum of Rs.2,00,000/- is awarded towards
loss of marriage prospects. Thus, in all, the claimant shall
be entitled to compensation under the following heads:
HEADS AMOUNT
(in Rs.)
Towards pain and suffering 1,00,000/-
Towards Medical expenses 30,000/-
Attendant charges 10,000/-
Conveyance & nourishment expenses 10,000/-
Loss of future earning capacity due to 14,66,000/-
permanent disability
Loss of amenities and future happiness 2,00,000/-
Loss of marriage prospects 2,00,000/-
Total 20,16,000/-
MFA No. 21656 of 2010
13. Thus, the claimant shall be entitled to total
compensation of Rs.20,16,000/- as against
Rs.4,40,000/- awarded by the learned Tribunal.
14. Accordingly, the appeal is allowed in part and
the compensation amount is enhanced by
Rs.15,76,000/- which shall carry interest at the rate of
6% per annum from the date of petition till the date of
payment.
15. The Insurance Company shall deposit the
differential amount with interest thereon before the
learned Tribunal within a period of six weeks from today.
16. Registry to send back the records forthwith. No
order as to costs.
Sd/-
JUDGE
JTR
