Karnataka High Court

Heeru S/O Soma @ Pomma Chavan And ... vs The Divisional Controller, Msrtc on 2 June, 2022

Bench: Rajendra Badamikar

                           1




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 02ND DAY OF JUNE 2022

                        BEFORE

  THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
              MFA No.32973/2013 (MV)
                       C/w
                MFA No.32974/2013
                MFA No.32975/2013

IN MFA.No.32973/2013

BETWEEN:

01.   HEERU S/O SOMA @ POMMA CHAVAN
      AGE: 41 YEARS OCC: CLOTH BUSINESS

02.   ANIL S/O HEERU CHAVAN
      AGE: 13 YEARS M.G. BY PETITIONER NO.1

03.   ANJALI D/O HEERU CHAVAN
      AGE: 11 YEARS M.G. BY PETITIONER NO.1

04.   SUNIL S/O HEERU CHAVAN
      AGE: 10 YEARS M.G. BY PETITIONER NO.1

05.   BAVANA D/O HEERU CHAVAN
      AGE: 04 YEARS M.G. BY PETITIONER NO.1

06.   JAY S/O HEERU CHAVAN
      AGE: 08 YEARS M.G. BY PETITIONER NO.1
      ALL ARE R/O: BABA NAGAR,
      TQ: BIJAPUR.
                                        .....APPELLANTS
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
                              2



AND:

THE DIVISIONAL CONTROLLER, MSRTC
SOLAPUR DIVISION
SOLAPUR - 416 416.
                                          .....RESPONDENT

(BY SRI. M.A. KAKHANDKI AND
SRI. S. H. MANUR, ADVOCATES)

       THIS MFA IS FILED UNDER SECTION 173(1) OF THE

MOTOR VEHICLES ACT PRAYING TO ALLOW THIS APPEAL,

MODIFY THE JUDGMENT AND AWARD DATED 20.08.2013

PASSED     BY   THE   MACT       NO.V,   AT   BIJAPUR   IN

MVC.NO.1240/2010.


IN MFA.NO.32974/2013

BETWEEN:

MEGHA D/O SURESH WAGHARE
AGE: 15 YEARS OCC: STUDENT
M/G BY MANJULA W/O SURESH WAGHARE
R/O: BABA NAGAR, TQ & DIST: BIJAPUR.
                                     .....APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)

AND:

THE DIVISIONAL CONTROLLER, MSRTC
SOLAPUR DIVISION
SOLAPUR - 416 416.
                                          .....RESPONDENT

(BY SRI. M.A. KAKHANDKI AND
SRI. S. H. MANUR, ADVOCATES)
                            3



       THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT PRAYING TO ALLOW THIS APPEAL,
MODIFY THE JUDGMENT AND AWARD DATED 20.08.2013
PASSED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL NO.V,
AT BIJAPUR IN MVC.NO.1236/2010.


IN MFA.NO.32975/2013
BETWEEN:
REKHA D/O SURESH WAGHARE
AGE: 13 YEARS OCC: STUDENT.
M/G BY MANJULA W/O SURESH WAGHARE
R/O: BABA NAGAR,
TQ: & DIST: BIJAPUR - 586 101.
                                      .....APPELLANT
(BY SRI. SANGANAGOUDA V. BIRADAR, ADVOCATE)
AND:

THE DIVISIONAL CONTROLLER, MSRTC
SOLAPUR DIVISION
SOLAPUR - 416 416.
                                      .....RESPONDENT

(BY SRI. M.A. KAKHANDKI AND
SRI. S. H. MANUR, ADVOCATES)


      THIS MFA IS FILED UNDER SECTION 173(1) OF THE
MOTOR VEHICLES ACT PRAYING TO ALLOW THIS APPEAL,
MODIFY THE JUDGMENT AND AWARD DATED 20.08.2013
PASSED BY THE MOTOR ACCIDENTS CLAIMS TRIBUNAL NO.V,
AT BIJAPUR IN MVC.NO.1239/2010.

       THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                             4




                       JUDGMENT

These three appeals are filed challenging the

judgment and award passed in MVC Nos.1236, 1239

and 1240 of 2010 by the MACT-V, Bijapur, by

common judgment dated 20.08.2013.

2. As these appeals are arising out of the

same judgment and award passed by the tribunal,

they are heard together and common order is being

passed.

3. For the sake of convenience, parties are

referred with the ranks occupied by them before the

Tribunal.

4. The brief facts leading to the case are that

on 03.06.2010 the injured minor petitioners Megha,

Rekha and deceased Padma were traveling in an Auto

Rickshaw bearing registration No.MH-13/B-1010

towards Kegaon from Solapur. When they were

proceeding near old Puna Naka at about 6.20 a.m., at

that time, a bus bearing registration No.MH-20/D-

7461 came from opposite direction with high speed in

a rash and negligent manner and hit the Auto

rickshaw resulting in the accident. Due to this

accident, the petitioners Megha and Rekha sustained

bodily injuries while Padma sustained severe injuries

and succumbed because of the injuries. In this

regard, the driver of the bus was prosecuted in

Fouzdarchoudi Police in Crime No.111/2010.

5. The petitioner Megha suffered fracture of

right femur, right knee, joint, right clavicle and other

injuries and she is aged about 12 years. The

petitioner Rekha suffered head injury. They were

shifted to civil hospital, Solapur, wherein they

obtained treatment. That the deceased Padma is the

wife of petitioner No.1 and mother of petitioner Nos.2

to 6 in MVC No.1240/2010, who succumbed to the

injuries and the petitioners have lost the support of

wife and mother. Hence, these claim petitions came to

be filed seeking compensation under Section 166 of

M.V.Act.

6. The respondent appeared through his

counsel and filed objections denying the allegations

and assertions made thereunder. Further it is denied

the age, income and occupation of the petitioners and

deceased including that of rash and negligent driving

on the part of the driver. It is contended that the

accident is due to actionable negligence on the part of

the driver of Auto rickshaw bearing registration

No.MH-13/B-1010. Hence, Corporation disputed the

claim.

7. After appreciating the oral and

documentary evidence, the claim petitions came to be

allowed in part by awarding compensation of

Rs.1,08,000/- to the petitioner-Megha in MVC

No.1236/2010, while in MVC No.1239/2010 the

petitioner-Rekha was awarded compensation of

Rs.5,000/-. The petitioners in MVC No.1240/2010

were awarded compensation of Rs.4,79,000/- by

fastening the liability on respondent-Corporation.

8. Being aggrieved by the judgment and

award passed by the tribunal, these appeals were filed

seeking enhancement of compensation

9. The petitioner in MVC No.1236/2010 has

filed in MFA No.32974/2013, the petitioner in MVC

No.1239/2010 has filed MFA No.32975/2013 and the

petitioners in MVC No.1240/2010 have filed MFA

No.32973/2013.

10. Heard the arguments advanced by the

learned counsel for the appellants-petitioners and

learned counsel for respondent-Corporation. Perused

the records.

11. Learned counsel for the appellants would

contend that the tribunal has awarded lower

compensation under the head of pain and suffering,

loss of amenities, conveyance and medical expenses.

Further, he would contend that the tribunal has taken

the income of the deceased on lower side and further

contended that no compensation was awarded under

the head loss of consortium. Hence, he would contend

that the award passed by the tribunal calls for

interference by enhancing the same.

12. Per contra, learned counsel for the

respondent-Corporation would support the award of

the tribunal.

13. Having heard the arguments and perusing

the records, it is not in dispute that on 03.06.2010,

when the two minor petitioners and deceased Padma

were traveling in the Auto rickshaw, it met with an

accident as it was hit by bus bearing registration

No.MH-20/D-7461.

14. After appreciating the oral and

documentary evidence, the tribunal has come to the

conclusion that the accident has occurred because of

the actionable negligence on the part of the driver of

the bus. This finding of the tribunal is not at all

challenged by the respondent-Corporation. As such,

now it is not open to raise an issue regarding liability

which is admitted by the Corporation.

15. In MFA No.32973/2013 arising out of MVC

No.1240/2010, the petitioners are husband and minor

children of deceased Padma, the tribunal has taken

the income of deceased @ Rs.3,000/- per month. As

per the Lok Adalath Chart, this Court is consistently

taking the notional income of Rs.5,500/- per month

for the accident occurred in the year 2010. Hence, the

income of the petitioner is required to be taken @

Rs.5,500/- per month.

16. Further, the tribunal has not considered

future prospects. Since the deceased does not have an

permanent avocation, considering her age as 29

years, 40% of the future prospects are required to be

added as per the decision of the Supreme Court in the

case of National Insurance Co., Ltd., vs. Pranay

Sethi and others reported in AIR 2017 SC 5157.

Thus, the monthly income comes to Rs.7,700/-. Since

there are more than five dependants, it is appropriate

to deduct 1/4th towards personal expenses and

therefore, the monthly income comes to Rs.5,775/-

(7,700-1925) and as such the deceased would have

been contributed Rs.5,775/- towards the family.

Since, the petitioner was aged about 29 years and as

such the multiplier 17 is applicable. Hence, the loss of

future income would works out to Rs.11,78,100/-

(Rs.5,775 x 12 x17).

17. Further, as per the decision of the Hon'ble

Supreme Court in the case of United India

Insurance Co. Ltd., Vs. Satinder Kaur @

Satwinder Kaur & Others, reported in AIR 2020

SC 3076, each children and husband are entitled for

consortium of Rs.40,000/-. Hence, the petitioners are

entitled for compensation of Rs.2,40,000/- under the

head of loss of consortium (Rs.40,000 x 6). Further,

they are entitled for compensation of Rs.15,000/-

each under the head of loss of estate and funeral

expenses.

18. Hence, in MFA No.32973/2013 arising out

of MVC No.1240/2010, the petitioners are entitled for

compensation of Rs.14,48,100/- as against

Rs.4,79,000/- awarded by the tribunal under the

following heads.

Sl.No.           Heads                   Amount
1.          Loss of consortium           Rs.2,40,000/-
2.          Loss of future income        Rs.11,78,100/-
3.          Loss of estate               Rs.15,000/-
4.          Funeral expenses             Rs.15,000/-
                 Total                   Rs.14,48,100/-

19. In MFA No.32974/2013 arising out of MVC

No.1236/2010, the petitioner-Megha the injured was

awarded compensation of Rs.1,08,000/-. The tribunal

has awarded a sum of Rs.40,000/- towards pain and

suffering, Rs.30,000/- towards loss of amenities of

life, happiness, frustration etc., and Rs.5,000/-

towards conveyance, attendant charges. Admittedly,

the victim was aged about 14 years and minor as on

the date of the accident. She has suffered fracture of

shaft of right femur, right shoulder fracture, fracture

of lateral end of right clavicle with right Acromantratic

dislocation etc. Pw.2 the doctor assessed the disability

to an extent of 20-25% as regards right lower limb

and 10-15% as regards right upper limb. However,

the cross examination reveals that he is not a treated

doctor. Learned counsel would contend that

considering this disability, the total disability would

works out more than 15% to the whole body, but the

said arguments holds no water. Considering the

nature of injuries sustained and age of the victim the

disability to the whole body can be taken @ 10%.

20. As per the decision of the Hon'ble Supreme

Court in the case of Master Mallikarjun Vs.

Divisional Manager, The National Insurance

Company Limited and Another reported in ILR

2013 KAR 489, wherein the Hon'ble Apex Court has

laid down the guidelines in paragraph No.12 to assess

the disability on the basis of percentage in the case of

minors. Paragraph No.12 reads as under;

"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the

appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents".

21. Considering this aspect and as per the

guidelines laid down by the Hon'ble Apex Court, the

petitioner-Megha is entitled for compensation of

Rs.1,00,000/- under the said head.

22. The records disclose that the petitioner has

suffered four fractures and she was admitted in

General Hospital, Solapur from 03.10.2010 to

17.06.2010, the petitioner ought to have suffered

discomfort, inconvenience and the parents ought to

have lost their earning during this period of

hospitalization and subsequently attending the minor.

Hence, I propose to award a sum of Rs.25,000/-

under the said head.

23. Further, the parents of the petitioner ought

to have spent sufficient amount towards medical

expenses and considering the nature of treatment, I

propose to award a sum of Rs.15,000/- under the

head of medical expenses and Rs.5,000/- under the

head of incidental charges.

24. Further, towards future medical expenses

for removal of implant and ancillary, medical

expenses, I propose to compensation of Rs.15,000/-

under the said head.

25. As such the petitioner is entitled for total

compensation of Rs.1,60,000/- as against

Rs.1,08,000/- awarded by the tribunal under the

following heads is as under;

Sl.No.            Heads                             Amount
1.          Pain & suffering                        Rs.1,00,000/-
2.          Discomfort, inconvenience               Rs.25,000/-
            and etc
3.          Medical expenses                        Rs.15,000/-
4.          Incidental charges                      Rs.5,000/-
5.          Future medical expenses                 Rs.15,000/-
                  Total                             Rs.1,60,000/-



      26.   In MFA No.32975 arising out of                 MVC

No.1239/2010,         the       tribunal      has       awarded

compensation of Rs.5,000/- to the petitioner. The

petitioner was aged about 10 years. Ex.P2 disclose

that the petitioner has suffered two injuries; (1) cut

lacerated wound over forehead and (2) blunt trauma

on chest. Considering her age and nature of injuries

being simple, she is entitled for global compensation

of Rs.10,000/- as against Rs.5,000/- awarded by the

tribunal.

27. Under these circumstances, the appeals

needs to be allowed in part. Accordingly, I proceed to

pass the following;