Karnataka High Court
The Divisional Controller vs Abhishek S on 27 May, 2022
Bench: H T Prasad
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27th DAY OF MAY 2022
BEFORE
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
MFA No. 9168 OF 2018 (MV)
BETWEEN:
The Divisional Controller
K.S.R.T.C, Mysuru City Transport Division,
Bannimantap, Sathagalli Division,
Now by the Central Head Office,
K.H.Road, Double Road,
Shanthinagar, Bengaluru - 560 027.
Represented by Chief Law Officer.
... Appellant
(By Sri.Rajashekar S., Advocate)
AND:
Abhishek S,
S/o Shivashankar C,
Aged about 16 years,
Since minor represented by
Natural Guardian father
Shivashankar C,
S/o Chikkaramegowda,
Aged about 42 years,
Residing at Kurubara Street,
Vajamangala Village, Varuna Hobli,
Mysuru Taluk - 570 010.
... Respondent
(By Sri.K.M.Sanath Kumar, Advocate)
2
This MFA is filed under Section 173(1) of MV Act,
against the Judgment and Award dated 16/04/2018 passed
in MVC No.1017/2015 on the file of the Principal Judge,
Court of Small Causes and MACT, Mysuru, awarding
compensation of Rs.3,62,000/- along with interest at the
rate of 7% p.a. from the date of petition till its realization.
This MFA, coming on for Hearing, this day, this
Court, delivered the following:
JUDGMENT
This appeal under Section 173(1) of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'the Act',
for short) has been filed by the KSRTC (for short, 'the
Corporation') being aggrieved by the judgment dated
16.04.2018 passed by the Motor Accident Claims
Tribunal, Mysuru in MVC No.1017/2015.
2. Facts giving rise to the filing of the appeal
briefly stated are that on 23.12.2014 at about 2.15
p.m., the claimant in front of Vidya Jyothi School bus
stop on Mysuru - Bannur Road, the claimant was
boarding the bus. At that time the driver of KSRTC
bus bearing registration No.KA-13/F-1285 suddenly
drove the same without observing the passengers
boarding or getting down from the bus. As a result of
the aforesaid accident, the claimant sustained
grievous injuries and was hospitalized.
3. The claimant filed a petition through his
guardian under Section 166 of the Act on the ground
that he suffered lot of pain due to the injuries
sustained and he suffered 15% whole body disability.
It was pleaded that he also spent huge amount
towards medical expenses, conveyance, etc. It was
further pleaded that the accident occurred purely on
account of the rash and negligent driving of the
offending vehicle by its driver.
4. On service of notice, the respondent
appeared through counsel and filed written statement
in which the averments made in the petition were
denied. The age, avocation, income, accident and
amount spent towards medical expenses are denied. .
It was pleaded that the accident has not occurred due
to rash and negligent act on the part of the driver of
the offending vehicle. Hence, he sought for dismissal
of the petition.
5. On the basis of the pleadings of the parties,
the Claims Tribunal framed the issues and thereafter
recorded the evidence. The guardian of the claimant
was examined as PW-1 and Dr.K.Ravindranath as PW-
2 and got exhibited 19 documents namely Ex.P1 to
Ex.P19. On behalf of the respondents, one witness
was examined as RW-1 but no documents were
marked. The Claims Tribunal, by the impugned
judgment, inter alia, held that the accident took place
on account of rash and negligent driving of the
offending vehicle by its driver, as a result of which,
the claimant sustained injuries. The Tribunal further
held that the claimant is entitled to a compensation of
Rs.3,62,000/- along with interest at the rate of 7%
p.a. and directed the Corporation to pay the
compensation amount. Being aggrieved, this appeal
has been filed.
6. The learned counsel for the Corporation
claimant raised the following contentions:
Firstly, due to the accident the claimant has
suffered minor injuries. He was aged about 13 years
and he was studying in 7th standard. He has
examined the doctor who has assessed the functional
disability of 25% to left lower limb. But the Tribunal,
while assessing the whole body disability has assessed
the same at 15%, which is on the higher side.
Therefore, in view of the decision of the Apex Court in
the case of MASTER MALLIKARJUN -vs-
DIVISIONAL MANAGER, NATIONAL INSURANCE
COMPANY LIMITED AND ANOTHER reported in
(2014) 14 SCC 396, the compensation awarded by
the Tribunal is on the higher side.
Secondly, in view of the law laid down by a
Division Bench of this Court in the case of
MS.JOYEETA BOSE AND OTHERS vs.
VENKATESHAN.V AND OTHERS (MFA 5896/2018
and connected matters disposed of on
24.8.2020), the rate of interest awarded by the
Tribunal at 7% p.a. is on the higher side. Hence,
sought for reduction of compensation.
7. On the other hand, learned counsel appearing
for the claimant has contended that the injuries
suffered by the claimant are major in nature. At the
time of the accident, the claimant was studying in 7th
standard. Due to fractures there is restriction in the
leg movement. Therefore, considering the evidence of
the doctor and the wound certificate the Tribunal has
rightly assessed the whole body disability as 15% and
the overall compensation awarded by the Tribunal is
just and reasonable. Hence, he sought for dismissal
of the appeal.
8. Heard the learned counsel for the parties.
Perused the judgment and award and the original
records.
9. It is not in dispute that the claimant
suffered injuries in the accident that occurred due to
rash and negligent driving of the offending vehicle by
its driver.
At the time of the accident he was aged about
13 years and was studying in 7th standard. Due to the
accident the claimant suffered Type - II ephiphepeal
fracture of right lower femur, restriction of terminal
fixation at knee by 10 degree and restriction of
terminal extension by 5 degree. He has examined the
doctor, who has assessed the functional disability of
25% of left lower limb and he has not assessed the
whole body disability. Considering the evidence of the
doctor and considering the wound certificate, I am of
the opinion that the whole body disability can be
assessed at 9%. Since the claimant was a minor and
non-earning member of the family, compensation has
to be assessed in terms of the law laid down by the
Hon'ble Apex Court in the case of MASTER
MALLIKARJUN (supra). As per the said judgment,
if the whole body disability is less than 10% the
compensation for pain and suffering already
undergone and to be suffered in future, mental and
physical shock, hardship, inconvenience and
discomfort, etc has to be awarded at Rs.1.00 lakh.
Accordingly, the compensation awarded by the
Tribunal under the said head is reduced from Rs.3.00
lakhs to Rs.1.00 lakh. In addition, claimant is entitled
to Rs.25,000/- towards 'future medical expenses' and
Rs.25,000/- for 'loss of income during laid-up period
to the parents'. The compensation awarded by the
Tribunal under the head 'medical and incidental
expenses' at Rs.62,000/- is retained.
10. Thus, the claimant is entitled to the
following compensation:
Compensation under Amount in
different Heads (Rs.)
Pain and suffering, etc. 1,00,000
Loss of income to 25,000
parents
Future medical expenses 25,000
Medical and incidental 62,000
expenses
Total 2,12,000
11. The claimant is entitled to a total
compensation of Rs.2,12,000/- as against
Rs.3,62,000/- awarded by the Tribunal.
In view of the law laid down by a Division Bench
of this Court in the case of JOYEETA BOSE (supra),
the rate of interest awarded by the Tribunal is reduced
from 7% p.a. to 6% p.a.
The Corporation is directed to deposit the
compensation amount along with interest at 6% p.a.
from the date of petition till payment is made, within
a period of six weeks from the date of receipt of copy
of this judgment.
To the aforesaid extent, the judgment of the
Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
The amount in deposit is ordered to be
transferred to the Tribunal forthwith.
Sd/-
JUDGE
Cm/-
