Karnataka High Court
Sri Shreyas vs Sri Satappa on 11 March, 2022
Bench: J.M.Khazi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
M.F.A.NO.4187/2014 (MV)
BETWEEN:
SRI SHREYAS
S/O SHRINIVAS KALAL
AGED ABOUT 19 YEARS FROM 13.07.2014
OCC: STUDENT
ADVOCATE
R/O "SRI LAXMI NIVAS"
BEHIND RAILWAY STATION
HARIHAR-477 602
DISTRICT: DAVANAGERE
AGE OF APPELLANT AT TIME OF INQUIRY: 14 YEARS
... APPELLANT
(BY SRI. G.J. SUNKAPUR, ADVOCATE)
AND:
1. SRI SATAPPA
S/O BASAPPA
AGED ABOUT 34 YEARS
OCC: DRIVER OF THE CAR
REG.NO.DL.2C.AG.7137
D.L.NO.27770 FROM
09.02.2009 TO 08.02.2012
R/O AMMINABHAVI VILLAGE
TALUK: HUKKERI
DISTRICT: BELGAUM
2
2. M/S. DVS INDUSTRIES PVT.LTD
OWNER OF THE CAR DL.2C.AG.7137
NO.41, M.M.ROAD
RANI JHANSI MARGA
NEW DELHI-110 033
3. IFFCO-TOKIO GENERAL
INSURANCE COMPANY LTD.
A/2 1ST FLOOR, RELIANCE HOUSE
ISIDORIO BAPTIST ROAD MARGA
GOA-403801
REPRESENTED BY ITS BRANCH MANAGER
IFFCO-TOKIO GENERAL
INSURANCE COMPANY LTD., DAVANAGERE
A/2 1ST FLOOR, RELIANCE HOUSE
INSURANCE VALID FROM
14.04.2009 TO 13.04.2015
...RESPONDENTS
(BY SRI. D.VIJAYAKUMAR, ADVOCATE FOR R3
VIDE COURT ORDER DATED 05.06.2015
NOTICE TO R1 & R2 ARE DISPENSED WITH)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 23.01.2014 PASSED BY SENIOR
CIVIL & THE ADDL.MACT, HARIHAR IN MVC NO.204/2010, IN SO
FAR AS IT RELATES TO THE QUANTUM OF COMPENSTION
AWARDED BY THE TRIBUNAL AND ENHANCE THE SAME TO THE
EXTENT CLAIMED BY THE APPELLANT IN THE CLAIM PETITION,
TO MEET THE ENDS OF JUSTICE, ETC.,
THIS MFA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is posted for admission, with the
consent of learned counsel for both the parties the same is
taken up for final disposal.
2. This is petitioner's appeal for enhancement of
compensation granted for the personal injuries sustained by
him in a road traffic accident dated 22.02.2010 involving
car bearing registration No. DL-2C-AG-7137 (herein after
referred to as offending vehicle), belonging to respondent
No.2 company and insured with respondent No.3.
3. For the sake of convenience the parties are
referred to by their rank before the Tribunal.
4. Facts: It is the case of the petitioner that on
22.02.2010 he along with his family members was traveling
in the offending vehicle. It was driven by respondent No.1
in a rash or negligent manner. At 7.30 a.m. near Emmetti,
village of Chitradurga District, respondent No.1 hit the car
to a Lorry which was proceeding in the front, as a result of
which petitioner sustained grievous injuries.
5. Respondent No.2 has filed objections denying
the petition averments. However, he has contended that at
the time of alleged accident, the offending vehicle was duly
insured with respondent No.3 and respondent No.1 was
having valid driving license and as such respondent No.3 is
liable to pay the compensation.
6. Respondent No.3 has filed objections admitting
the coverage of the offending vehicle, but as the offending
vehicle is a private car and the policy is in respect of private
car and since respondent No.2 has used the same as a taxi
for carrying passengers there is violation of conditions of
the policy. The driver of the offending vehicle was not
having valid driving license and prays to dismiss the
petition against it.
7. Since in the said accident number of persons
were injured and there was also one death, all the petitions
arising out of the said accident were clubbed together and
common evidence was led. During enquiry on behalf of
petitioners, in all 8 witnesses were examined as PWs-1 to 8
and Ex.P1 to Ex.P74 are marked.
8. On behalf of respondents, no oral evidence is
led, but Ex.R1 to 6 were marked.
9. Vide impugned judgment and award, the
Tribunal has partly allowed the claim petition and granted
compensation in a sum of Rs.1,70,454/- and directed
respondent No.3 to pay the same, as detailed below:
Heads Amount in
Rs.
Pain and Suffering 1,00,000
Inconvenience to the parents 15,000
Medical expenses 45,454
Medical attendant charges and 10,000
Nourishment
TOTAL 1,70,454
10. The respondent No.3 Insurance company has not
challenged the impugned judgment and award.
11. Thus, petitioner is seeking enhancement
contending that the compensation granted is on the lower
side and the Tribunal should have taken the disability as
20% of the whole body and notional income at Rs.5000/-
for calculating future loss of income. The compensation
granted under all the heads requires enhancement.
12. On the other hand, learned counsel representing
respondent No.2 argued that at the time of accident
petitioner was aged 14 years and a non-earning person.
Since, the disability calculated is 20% of the concerned
limb, the whole body disability should have been taken as
1/3rd of it which may be around 7%. However, the Tribunal
has taken the disability of whole body at 10%. Since, the
petitioner was a child and a non-earning person the
notional income is to be confined to Rs.15,000/- p.a.
Therefore, the compensation granted is not only just and
proper, but on the higher side. At the most global
compensation in sum of Rs.30,000/- may be granted in
addition to what is already granted by the Tribunal.
13. In view of the specific contentions raised by the
petitioner it has become necessary to examine whether the
compensation granted is just and reasonable or whether it
is a fit case for interference by this Court.
14. Pain and sufferings already undergone and to be
suffered in future, mental and physical shock, hardship,
inconvenience and discomforts, etc. and loss of amenities in
life on account of permanent disability: Before adverting to
the nature of the injury sustained resulting in the disability
it is necessary to refer to the decision of the Hon'ble
Supreme Court in (2014) 14 SCC 3961(Mallikarjun's
case), wherein the Hon'ble Supreme Court dealing with
death or personal injury of a child in a motor vehicle
accident held that "in case of accident of child resulting in
disability, it would be unfair and improper to follow
structured formula as per the Second Schedule. The main
stress in structured formula is on pecuniary damages. For
children, there is no income. A child cannot be equated to a
non earning person as done in the Second Schedule taking
Mallikarjun vs Divisional Manager, National Insurance Company Ltd.
and Another
notional income as 15,000/- per year. Therefore,
compensation is to be worked out under non-pecuniary
head in addition to actual amount incurred for treatment
done/or to be done, transportation, assistance of attendant,
etc.". It further held that "in addition to treatment,
attendant, etc., the following compensation is to be granted
for disability of whole body(unless there are exceptional
circumstances to take a different yardstick):
Upto 10% - 1,00,000/-
10-30% - 3,00,000/--
Upto 60% - 4,00,000/-
Upto 90% - 6,00,000/-
15. In Mallikarjun's case referred to supra, having
regard to the fact that the petitioner therein had suffered
whole body disability of 18%, the Hon'ble Supreme Court
granted compensation in a sum of Rs.3,00,000/- under the
head pain and sufferings already undergone and to be
suffered in future, mental and physical shock, hardship,
inconvenience and discomforts, etc. and loss of amenitites
in life on account of permanent disability.
16. Admittedly, as on the date of accident petitioner
was a child aged 14 years. Therefore, the compensation is
to be calculated as per the decision in Mallikarjun's case
referred to supra. As per the wound certificate, the
petitioner has sustained fracture of left humorous and other
injuries PW-6 Doctor Anil S Nelevigi has deposed that
petitioner has suffered 20% disability of the left upper limb.
As per Rajkumar's case 1/3rd of which comes to about 7%
and therefore, 7% should have been taken as whole body
disability. However, the Tribunal has taken the whole body
disability as 10% which is on the higher side. Therefore, the
contention of the petitioner that the whole body disability is
to be taken at 20% cannot be accepted. Based on the
disability suffered by the petitioner and relying upon
Mallikarjun's case referred to supra the Tribunal has
rightly granted compensation in a sum of Rs.,1,00,000/-
and it calls for no interference.
17. Inconvenience to the parents: The Tribunal has
granted compensation of sum of Rs.15,000/- under this
head. Having regard to the nature of the injury sustained,
the disability suffered by the petitioner and period of
treatment, I hold that it is on the lower side and it would be
just and proper to grant additional sum of Rs.15,000/-
making the compensation under this head as Rs.30,000/-
as against Rs.15,000/- granted by the Tribunal.
18. Medical expenses: Based on the medical bills,
the Tribunal has rightly granted compensation in a sum of
Rs.45,454/- and I find no reason to interfere the same.
19. Medical attendant charges and nourishment: The
Tribunal has granted compensation of sum of Rs.10,000/-
under this head. Having regard to the nature of the injury
sustained, the disability suffered by the petitioner and
period of treatment, I hold that it is on the lower side and it
would be just and proper to grant additional sum of
Rs.15,000/- making the compensation under this head as
Rs.25,000/- as against Rs.10,000/- granted by the
Tribunal.
20. Thus in all petitioners are entitled for
compensation in a sum of Rs.2,00,454/- rounded off to
Rs.2,00,500/- with interest at 6% p.a. as against
Rs.1,70,454/- granted by the Tribunal as detailed below:
Heads Amount granted Amount granted
by the Tribunal by this Court
In Rs. In Rs.
Pain and sufferings 1,00,000 1,00,000
already undergone (Pain and
and to be suffered in suffering)
future, mental and
physical shock,
hardship,
inconvenience and
discomforts, etc. and
loss of amenities in
life on account of
permanent disability
Inconvenience to the 15,000 30,000
parents
Medical expenses 45,454 45,454
Medical attendant 10,000 25,000
charges and
nourishment
TOTAL 1,70,454 2,00,454
Rounded off to 2,00,500/-
21. Accordingly, I proceed to pass the following:
ORDER
(i) Appeal is allowed in part.
(ii) Appellant/petitioner is entitled for compensation
in a sum of Rs. 2,00,500/- as against
Rs.1,70,454/- granted by the Tribunal, with
interest at 6% p.a. from the date of petition till
realization (minus the amount already
paid/deposited)
(iii) The respondent No.3 Insurance company shall
deposit the compensation amount within a
period of six weeks from the date of this order.
Sd/-
JUDGE
RR
