Kumari Tahren D/O Babajan ... vs Ashok S/O Basavaraj Hooli
2022 Latest Caselaw 4191 Kant

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH


       DATED THIS THE 11th DAY OF MARCH, 2022

                        BEFORE
     THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA

            M.F.A. NO. 24196 OF 2013 (MV-I)
BETWEEN:

     KUMARI TAHREEN D/O.BABAJAN BHAVIKATTI,
     AGE: 11 YEARS, OCC: STUDENT, NOW NIL,
     SINCE MINOR R/BY HER MOTHER
     BABAJAN S/O.HUSAINSAB BHAVIKATTI,
     AGE: 32 YEARS, OCC: BUSINESS,
     R/O.HULAGUR, TQ: SHIGGAON,
     DIST: HAVERI, NOW AT KEB QUARTERS,
     BELGAUM.
                                          ....APPELLANT
       (BY SRI. HANAMANT R. LATUR. ADVOCATE)
And:

1.   ASHOK S/O BASAVARAJ HOOLI
     AGE: 30 YEARS, OCC: BUSINESS,
     R/O.PLOT-NO-7333,SECTOR NO-10,
     ANJANEY NAGAR, BELGAUM
     DIST: BELGAUM.

2.   THE DIVISIONAL MANAGER,
     UNITED INDIA INSURANCE COMPANY LIMITED,
     MARUTI GALLI, BELGAUM.
                                     ...RESPONDENTS
(BY SRI. S.S.KOLIWAD, ADV. FOR RESPONDENT NO.2)
(NOTICE   TO   RESPONDENT         NO.1-SERVED     AND
UNREPRESENTED)
                                :2:



     THIS M.F.A. IS FILED U/SEC.173(1) OF M.V.ACT,
AGAINST THE JUDGMENT AND AWARD DATED 24-09-2012
PASSED IN M.V.C. NO.1366/2011 ON THE FILE OF THE III-
ADDL. SENIOR CIVIL JUDGE AND MEMBER, ADDL. MACT,
BELGAUM, 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

The fact that an accident occurred on 06.03.2011 when

a motorcycle collided with Tahreen Babajan Bhavikatti, a 09

years old girl, is not in dispute.

2. It is also admitted that the offending motorcycle

was insured.

3. The fact that she suffered grievous injuries is also

not in dispute.

4. The Tribunal despite the medical evidence to the

effect that the minor girl had suffered 80% disability to the

whole body, has stated that it would be appropriate to

consider 30% disability to the whole body. It has thereafter

applied a notional income of Rs.15,000/- per annum and

awarded a sum of Rs.67,500/- towards loss of future

income. It has also awarded the following sums.

1. Loss of future income Rs.67,500/-

 2.    Pain and suffering                          Rs.40,000/-

 3.    Medical expenses and other incidental      Rs.2,30,000/-
       expenses

 4.    Loss of happiness and amenities.            Rs.30,000/-

                                          Total   Rs.3,67,500/-

5. The victim i.e., Tahreen Babajan Bhavikatti is in

appeal seeking for enhancement of compensation. It is

contended that the victim had suffered serious internal

injuries apart from the major fractures to the right femur

and right tibia and of the mandible. It is contended that the

victim had also suffered lacerations to the liver and the

entire right kidney had been shattered and had been

removed and in this view of the matter, the assessment of

the disability was wholly incorrect.

6. It is also contended that the determination of

application of the notional income of Rs.15,000/- per

annum runs counter to the decision rendered by the Hon'ble

Apex Court in the case of Kajal Vs. Jagdish Chand &

Others, reported in AIR 2020 SCC 776, in which the

Hon'ble Apex Court had stated that the minimum wage

payable to the skilled workmen would be the appropriate

criteria for determination of the loss of future earning rather

than the application of the notional income for the purpose

of determination of loss of future earnings.

7. It is also contended that sums awarded towards

pain and suffering and loss of amenities are on the lower

side and they have also required to be enhanced.

8. Learned counsel Sri S.S.Koliwad, appearing for the

Insurance Company, on the other hand, most strenuously

urged that there is absolutely no merit in the appeal. He

contended that the argument of the claimant that the

application of notional income was incorrect and ought not

to be accepted. He submitted that it was the consistent

practice of all courts of applying the notional income and

therefore any deviation from the said principal would be

improper. He also contended that the decision rendered by

the Hon'ble Supreme Court in the Kajal's case was peculiar

to the context of that case and cannot be made the

yardstick for the purpose of determining the monthly

income. He highlighted the fact that in the Kajal's case the

Hon'ble Supreme Court was dealing with the case where a

12 years old girl was in a vegetative state and the entire

decision hinged on those peculiar facts. He submits that

since the Doctor had stated that the victim was healthy at

the time of discharge was also proved that the assessment

of whole body disability by the Tribunal was proper.

9. I have considered the submissions of the learned

counsel for the appellant and learned counsel appearing for

the 2nd respondent-Insurance Company and perused the

material on record.

10. The Wound Certificate Ex.P.5 records that the

victim suffered the following injuries

1. Fracture of right femur shaft 1/3rd.

2. Fracture of right tibia comprised type III.

3. Fracture of mandible.

4. Injury to (Laceration) right kidney and liver and

5. Multiple abrasions.

11. The doctor who was examined has stated as

follows:

"It is true that the petitioner's right kidney completely damaged and removed the said. It is true that in case surviving kidney gets damaged due to infection or any other cause i.e., excessive in take of drugs like pain killer she may loose her life.

It is true that petitioner is facing difficulty to pass urine as a normal person due to the injuries to liver.

It is true that due to shortening of Rt. Leg of 3.5 c.m. the petitioner cannot stand properly and cannot walk properly.

It is true that the petitioner has to suffer the permanent disability through out her future life, and it would affect her marriage prospectus."

12. The doctor has also opined that there was

shortening of Tahreen's right leg by 3.5 cms and she can

neither stand properly nor walk properly. In my view, the

injuries described by the doctor clearly indicate that the 9

year old girl would be physically impaired for life. The

consequences of loosing a kidney and shortening of a leg

would be debilitating to her future life. She would have to

live under the constant threat of her kidney being

susceptible for infection and if she were to suffer any

further damage, her entire prospects of leading a normal

life would dwindle dramatically. The fact that the 9 year

girl's right leg was shortened by 3.5 cms also renders her

handicapped of working normally. Given the social

background of the claimant that her father being a petty

businessman, her situation would become even more

fragile. I am therefore, of the view that this would be an

appropriate case to consider the whole body disability at

50% and not 30% as held by the Tribunal.

13. As regards the application of notional income of

Rs.15,000/- per annum, it has to be stated here that the

application of notional income as held in SARLA VERMA

VS. DELHI TRANSPORT CORPORATION AND ANOTHER

(2009 (6) SCC 121), cannot be considered as an absolute

Rule and would be automatically applicable to all cases. In

fact, the Hon'ble Apex Court in Kajal's case has specifically

held in case of a child of 12 years, the application of

notional income of Rs.15,000/- p.a. would be an incorrect

way of assessing the future loss of income. It has been

held that a girl would have earned some education and

would be earning more than Rs.15,000/- p.a. and each case

would have to be decided on its own evidence and taking of

notional income at Rs.15,000/- p.a. in all cases was not at

all justified.

14. The Hon'ble Apex Court has also taken into

consideration that the minimum wages payable to a skilled

workman as on the relevant date could be the criteria for

determining the minimum amount that a minor girl would

have earned on becoming a major. The Karnataka State

Legal Services Authority has prepared a chart to determine

the notional monthly income in respect of a motor vehicle

accident victim's for every year. For the year 2011, the

year in which the accident took place, the KSLSA has

determined Rs.6,000/- as the appropriate monthly notional

income. In other words, in the year 2011, the minimum

amount that an able bodied person would earn would be a

sum of Rs.6,000/- p.m. In my view, application of this

amount of Rs.6,000/- per month as the monthly income in

this case would be appropriate and just.

15. To this sum of Rs.6,000/-, future prospects of

40% would also have to be added and this would result in

the monthly income being Rs.8,400/-. Since, I have held

that the claimant has suffered 50% disability to the whole

body, for the purpose of determining loss of future income,

her monthly income would be Rs.4,200/-.

16. As the victim was 9 years old, the multiplier of

15 would have to be applied and this would result in the

victim being entitled to Rs.7,56,000/- towards loss of future

income.

17. In my view, the Tribunal has also erred in

awarding a sum of Rs.40,000/- only towards pain and

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

sums deserve to be increased to Rs.60,000/- and

Rs.40,000/- respectively.

18. The Tribunal has awarded a sum of Rs.2,30,000/-

towards medical expenses and this assessment being based

on documentary evidence the same is maintained.

19. Hence, the claimant is entitled to the modified

award which reads as under:

Sl.                   Heads                        Modified Award
No
 1    Towards future loss of income
      (Rs.4,200X12X15)                                Rs. 7,56,000/-
2     Towards pain and suffering                      Rs.   60,000/-
3     Towards medical expenses                        Rs. 2,30,000/-
4     Towards loss of amenities                       Rs.   40,000/-
                     Total                          Rs. 10,76,000/-

       20.    Thus,     the   claimant       is    entitled    for   total

compensation of Rs.10,76,000/- as against the sum of

Rs.3,67,500/- awarded by the Tribunal.

21. In view of the above, I pass the following:

ORDER

(i) The appeal is allowed in part,

(ii) The Judgment and Award dated 24.09.2012 passed in MVC No.1366/2011, on the file of the III Addl. Senior Civil Judge and Addl.

MACT, Belgaum, is hereby modified.

The claimant is entitled to a total compensation of Rs.10,76,000/- as against the sum of Rs.3,67,500/- awarded by the Tribunal. The enhanced compensation of

Rs.7,08,500/- shall carry interest @ 6% p.a. from the date of claim petition till the date of deposit,

(iii) The Insurance Company/2nd respondent is directed to deposit the enhanced compensation after deducting the compensation already paid along with interest before the Tribunal within a period of 90 days from the date of receipt of certified copy of this judgment,

(iv) Since the entire objective of this order is made considering the minor child's future, this would be a fit case to direct that the entire amount of compensation be kept in a fixed deposit in the name of the minor. This amount in fixed deposit shall be permitted to be withdrawn only on production of proof that her marriage has been scheduled by making an

appropriate application before this Court.

(v) The parents of the claimant are permitted to withdraw the interest that accrues on the amount in deposit periodically. They shall however not make any attempt to prematurely close the fixed deposit or pledge the fixed deposit to raise any loans.

Sd JUDGE

Ckk/ paragr aphs 1- 7 Jm/-paragraph 8 till end