Karnataka High Court
Kumari Basamma D/O Late Kallappa ... vs Salim S/O Mehaboobsab Loni on 20 September, 2022
Bench: H.P.Sandesh
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MFA No. 100420 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 20TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 100420 OF
2015 (MV-)
BETWEEN:
1. KUMARI BASAMMA D/O LATE KALLAPPA LOKUR
AGE: 10 YEARS,
OCC: STUDENT,
SINCE MINOR R/BY HER MOTHER
HANAMAVVA W/O LATE KALLAPPA LOKUR
AGE: 38 YEARS, OCC: HOUSEHOLD,
R/O. HUNASIKATTI VILLAGE,
TQ: NARAGUND, DIST: GADAG,
NOW R/O.C/O.L.C.MULLATTI,
ARATI BUILDING JAYANAGARA LAST CROSS, SAPTAPUR,
DHARWAD
...APPELLANT
(BY SRI. GURUBASAVARAJ S M, ADVOCATE)
AND:
1. SALIM S/O MEHABOOBSAB LONI
AGE: MAJOR, OCC: BUSINESS,
R/O. NEW KARNATKA TRANSPORT CO., STATION BACK
ROAD, SHAHPETI, VIJAYAPURA,
(OWNER OF THE OFFENDING VEHICLE)
2. THE BRANCH MANAGER
RELIANCE GENERAL INSURANCE
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MFA No. 100420 of 2015
CO.LTD., DESHPANDE NAGAR,
HUBBALLI, DHARWAD DIST
(INSURANCE COVE NOTE NO.109000877280
VALID FROM 20-10-2009 TO 19-10-2010)
...RESPONDENTS
(BY SRI. NARAYAN V YAJI, ADVOCATE FOR R1,
SRINAGARAJ C KOLLOORI, ADVOCATE FOR R2)
THIS APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGEMENT AND AWARD DATED 30.08.2014 PASSED
IN MVC NO.830/2012 ON THE FILE OF THE PRESIDING OFFICER
FAST TRACK AND MEMBER ADDITIONAL MACT, DHARWAD PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for both parties.
2. Factual matrix of the case of the claimant
before the Tribunal is that the girl who is aged about 5
years met with an accident, as a result she has lost her
right hand and the same was amputated and hence, laid a
claim before the Tribunal. The claimant also examined
doctor as P.W.2, who assessed the disability at 85%.
MFA No. 100420 of 2015
3. The Tribunal after considering both the oral and
documentary evidence on record, awarded compensation
of Rs.3,83,000/-. Being aggrieved by the impugned
judgment and award, the claimant is in appeal seeking
enhancement of compensation.
4. The main contention of the appellant's counsel
is that the Tribunal lost sight of in taking note of
amputation to right hand of a girl who is aged 5 years and
failed to award appropriate compensation and counsel
would contend that it is a case of total amputation of right
hand just below the shoulder and the Tribunal has not
awarded just and reasonable compensation.
5. In support of his argument, he has relied upon
the judgement reported in (2022) 7 SCC 738 in the case
of Master Ayush vs. The Branch Manager, Reliance
General Insurance Company Limited and Another
and counsel referring to this judgement, brought to notice
of this Court that in a case of similar circumstances of 5
years old girl the Apex Court enhanced the compensation
MFA No. 100420 of 2015
to Rs.49,93,000/- by taking the income of Rs.3,700/- per
month and adding 40% and adopting multiplier of 18 and
apart from that awarded compensation on other heads
also regarding future medical expenses i.e. purchase of
devices and also awarded compensation towards pain and
suffering and loss of amenities and marriage prospects
and so also on attendant charges and conveyance charges.
6. Counsel also brought to notice of this Court the
judgement of the Division Bench of this Court passed in
MFA No.3645/2014 disposed of on 03.08.2018 and this
Court considering the Master Mallikarjun's case, taken
note that in all cases Master Mallikarjun's case cannot be
considered and the Court has to take note of the fact of
performing marriage of physically challenged girl who is
aged about 5 years and awarded compensation of
Rs.32,00,000/- as against Rs.16,50,000/- awarded by the
Tribunal.
MFA No. 100420 of 2015
7. Counsel referring to these two judgements,
would contend that this Court has to award just and
reasonable compensation.
8. Per contra, learned counsel for the respondent-
Insurance Company would vehemently contend that in the
case of Master Ayush, it is a case of paraplegia and
hence, compensation awarded on attendant charges and in
the present case it is only amputation of right hand at the
level of shoulder and compensation should be just and
reasonable.
9. Counsel would submit that the Apex Court also
taken note of judgement in the case of Kajal vs. Jagdish
Chand and Others (2020) 4 SCC 413 while assessing
the compensation. The Division Bench also taken note of
90% disability in case of amputation above the knee and
hence, the factors of this case has to be taken note of,
wherein it is only injury to shoulder and amputation of
right hand and there are no other injuries and the present
MFA No. 100420 of 2015
case is not a case of status of vegetative and hence, Court
can award just and reasonable compensation.
10. In view of the rival contentions of the parties,
the following points would arise for consideration:
i. Whether the Tribunal has committed an error
in not awarding just and reasonable
compensation?
ii. What order?
11. Regarding Point No.1: Having heard the
learned counsel for the parties and having considered the
arguments and nature of injuries sustained by the
claimant, it is not in dispute that the accident has taken
place in 2009 and claim petition was filed in 2012 and at
the time of accident the claimant was aged 5 years. P.W.2
has assessed the disability at 85% and Tribunal has taken
the disability at 85% as deposed by P.W.2 and awarded
compensation as under:
Pain and suffering Rs.75,000
Loss of amenities Rs.75,000
Medical expenses Rs.5,000
MFA No. 100420 of 2015
Future medical Rs.1,53,000
expenses taking
notional income of
Rs.15,000/- p.a.
Loss of marriage Rs.75,000
prospects
12. In view of the judgements in Master Ayush
and Kajal, this Court has to reanalyze the material on
record. Having taken note of the material on record, it is
not in dispute that amputation was done at the level of
shoulder joint and in terms of ECA disability also comes to
80%. In the case of amputation below shoulder with
stump at the front tip of acromion and hence this Court to
accept the disability of 80%. However, the Tribunal failed
to take note of future prospects of the girl who is aged 5
years and also Division Bench in detail discussed with
regard to judgement of Master Mallikarjun and so also
taken note that in the accident the minor girl had suffered
fracture and in the case on hand also she has suffered
amputation and Court has to take note of performing
marriage of a physically challenged person in a
conservative like ours, is an impossible task. In para
MFA No. 100420 of 2015
No.10, it is observed that it is however the status of a
physically challenged is further aggravated by the fact that
the person is seen more as a financial burden, and an
emotional trauma upon the family. Ordinarily the
physically challenged person is not only ridiculed, but is
also neglected by the family. Such a person is neither
wholly accepted, nor wholly rejected by the family and the
society. Taking note of all these aspects of the matter,
enhanced the compensation from Rs.16,50,000/- to
Rs.32,00,000/-.
13. In the case of Master Ayush also, the Apex
Court taken note of minimum wages of 2010-11 in similar
case of 5 years old girl and taken minimum wages payable
to skilled workmen in 2010-11 as Rs.3708.70. In the
present case accident is of the year 2009 and difference
will be only year of accident i.e. 2009 and herein the case
of 2010 and minimum wages also taken as Rs.3708.70.
When such being the case, this Court has to accept the
same as Rs.3700/- and taking note of future prospects
MFA No. 100420 of 2015
which has been added in the said case, this Court has to
add 40%. Then in comes to Rs.5,180/-. The Apex Court
applied the multiplier of 18 and calculated loss of income
and admittedly, the girl is aged 5 years and up to 15 years
the multiplier applicable would be 15. Hence, loss of
income due to permanent disability would be Rs.5,180 x
12 x 15 = Rs.9,32,400/-.
14. Towards medical expenses Rs.5,000/- has
been awarded by the Tribunal. Since the same is based on
documentary evidence the same is retained. Towards
future medical expenses, she is having stump taking note
of the records and it requires artificial limb and she is aged
5 years and she has to lead her rest of life with artificial
limb and Apex Court granted Rs.10,00,000/- in the said
case. Having considered the age, it is appropriate to award
Rs.5,00,000/- for purchase of devices throughout her
life.
15. Towards pain and suffering, the Apex Court
granted Rs.10,00,000/- and the said case is of paraplegia
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MFA No. 100420 of 2015
and the present case is of amputation of right hand at the
level of shoulder. Hence, it is appropriate to award
Rs.2,00,000/- on pain and suffering as against
Rs.75,000/-.
16. Towards loss of marriage prospects,
Rs.3,00,000/- has been awarded by the Apex Court and
hence it is appropriate to award Rs.3,00,000/-. Question
of attendant charges does not arise since the claimant has
lost amputation of right hand no interference is required
and not entitled for any compensation on the head of
future attendant charges. The claimant was in hospital for
12 days and hence parents of minor girl have taken care
of the child during hospitalization for longer period, hence
it is appropriate to award Rs.25,000/- towards loss of
income of parents and conveyance.
17. The claimant has sustained 80% disability and
aged about 5 years and she has to lead her rest of life with
disability of 80%, hence it is appropriate to award
Rs.2,00,000/- on the head of loss of amenities. It is case
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MFA No. 100420 of 2015
of amputation and question of granting compensation on
future medical expenses does not arise except artificial
limb. In all, the claimant is entitled for Rs.21,62,400/-.
18. Regarding point No.2: In view of the
discussions made above, I pass the following:
ORDER
Appeal is allowed in part.
In modification of the impugned judgment and award
passed by the Tribunal, the claimant is entitled for a sum
of Rs.21,62,400/- as against Rs.3,83,000/- awarded by
the Tribunal.
Enhanced compensation shall carry interest at 6%
p.a. from the date of petition till realization.
The compensation amount along with interest is
ordered to be paid/deposited within six weeks from the
date of this order.
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MFA No. 100420 of 2015
Out of the compensation awarded, 20% is ordered to
be released in favour of the minor guardian and remaining
80% is ordered to be kept in fixed deposit till she attains
the age of majority and mother is entitled to withdraw the
interest periodically to meet the educational expenses of
the minor.
The registry is directed to transmit the trial court
records forthwith.
Sd/-
JUDGE
SH
