Karnataka High Court
Kumari.Nageshwari vs The Divisional Controller on 10 January, 2023
Bench: Ravi V.Hosmani
-1-
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
MISCELLANEOUS FIRST APPEAL NO.100799 OF 2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.101155 OF 2016
IN M.F.A.NO.100799 OF 2016 (MV-I)
BETWEEN:
KUMARI. NAGESHWARI BASAWANT SAYANAK,
AGE: 10 YEARS, OCC: STUDENT,
SINCE APPELLANT IS MINOR,
R/BY THEIR M/G, GRAND-MOTHER,
SMT.KAUSHALYA NAGESH SAYANAK,
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O: RAGHUNATH PETH, ANGOL, BELAGAVI.
...APPELLANT
(BY SHRI HARISH S. MAIGUR, ADVOCATE)
AND:
1. THE DIVISIONAL CONTROLLER,
NWKRTC, BELAGAVI DIVN. BELAGAVI.
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
RAMDEV GALLI, BELAGAVI.
...RESPONDENTS
(BY SHRI I. C. PATIL, ADVOCATE FOR R1;
-2-
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
SHRI RAJASHEKHAR S. ARANI, ADVOCATE FOR R2)
IN M.F.A.NO.101155 OF 2016 (MV-I)
BETWEEN:
THE DIVISIONAL CONTROLLER
N.W.K.R.T.C, BELAGAVI DIVISION, BELAGAVI.
(OWNER OF BUS REG NO: KA-25/F-2348)
R/BY THE CHIEF LAW OFFICER
N.W.K.R.T.C, CENTRAL OFFICE, HUBBALLI.
...APPELLANT
(BY SHRI I. C.PATIL, ADVOCATE)
AND:
1. KUM. NAGESHWARI BASAWANT SAYANAK
AGE: 10 YEARS, OCC: STUDENT
(SINCE MINOR R/BY HER M/G-
GRANDMOTHER- SMT.KAUSHALYA NAGESH
SAYANAK, AGE: 56 YEARS, OCC: HOUSEHOLD
WORK, R/O RAGHUNATH PETH, ANGOL, BELGAVI.)
2. THE DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY LTD.,
RAMDEVGALLI, BELGAVI
(INSURER OF MOTORCYCLE NO: KA-22/EL-6815,
POLICY NO: 39010231146204211866
VALID FROM 09-03-2015 TO 08-03-2016).
...RESPONDENTS
(BY SHRI HARISH S. MAIGUR, ADVOCATE FOR R1;
SHRI RAJASHEKHAR S. ARANI, ADVOCATE FOR R2)
THESE MFA'S ARE FILED U/SEC.173(1) OF MOTOR
VEHICLES ACT, AGAINST THE JUDGMENT & AWARD
DATED:22.01.2016, PASSED IN MVC.NO.884/2015 ON THE
FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE
AND MEMBER ADDITIONAL MOTOR ACCIDENT CLAIMS
-3-
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
TRIBUNAL NO.VI, BELAGAVI, PARTLY ALLOWING THE CLAIM
PETITION FOR COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging common judgment and award
dated 22.01.2016 passed by V Addl.District and
Sessions Judge and VI Addl.M.A.C.T., Belagavi (for
short, 'Tribunal') in MVC No.379/2009, these
appeals are filed by NWKRTC as well as claimants
respectively.
2. While MFA no.100799/2016 is filed by
claimant seeking enhancement, MFA
No.101155/2016 is filed by insurer challenging its
liability as well as rate of interest imposed on it.
3. Though these appeals are listed for
admission, with consent of learned counsel for
parties, they are taken up for final disposal.
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
4. Occurrence of accident on 20.03.2015
involving motorcycle bearing registration no.KA-
22/EL-6815 on which claimant was riding as pillion
and KSRTC bus bearing registration no.KA-25/F-
2348 is not in dispute. Even claimant sustaining
injuries therein and consequent physical disability
is also not in dispute. Claimant is in appeal
seeking for enhancement of compensation.
5. Shri Harish S. Maigur, learned counsel for
claimant submitted that claimant was a 9 year old
girl student who sustained fracture of
supracondylar of left femur assessed at 15% limb
disability by Dr. A.B.Patil by issuing
Ex.P26/disability certificate. However, Tribunal
considered loss of earning capacity at meager 5%.
It was further submitted that claimant had taken
inpatient treatment from 20.03.2015 to
06.04.2015 and 28.07.2015 to 05.08.2015 which
would indicate that parents of claimant lost income
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
for a period of 4 months during period of
treatment. But Tribunal did not award any
compensation towards same. Though claimant
sustained physical disability due to malunion
resulting in antalgic gait, Tribunal did not award
any compensation towards loss of marriage
prospects.
6. On other hand Shri I.C.Patil, learned
counsel for NWKRTC fairly conceded that challenge
of NWKRTC on liability was settled by Division
Bench of this Court in MFA no.101156/2016, which
arose out of connected claim petitions wherein it
was held that NWKRTC was squarely liable, but had
reduced rate of interest from 9% to 6%. Therefore
sought for reduction of rate of interest. Insofar as
quantum of compensation, learned counsel
submitted that fact of case would fall within fold of
decision of Hon'ble Supreme Court in case of
Master Mallikarjun Vs Divisional Manager,
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
National Insurance Company Limited & Anr,
reported in AIR 2014 Supreme Court 736 and
since Tribunal had granted compensation as per
said decision, no enhancement was called for.
7. From above submission, only point that
arises for consideration is:
"Whether assessment of compensation by
Tribunal calls for modification?"
8. Admittedly, claimant in instant case is a
minor aged 9 years. She sustained fracture of
supracondylar of left femur assessed to cause 15%
disability as per Ex.P26/disability certificate. But,
claimant has not examined doctor to substantiate
same. Under circumstances, assessment of loss of
earning capacity at 5% by Tribunal does not
appear to be grossly inadequate.
9. As per decision in Master Mallikarjun's
case (supra), claimant would be entitled for
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
compensation of Rs.1,00,000/- under 1 s t slab since
disability is less than 10%. However, Hon'ble
Supreme Court in said decision has held that apart
from said amount, claimant would be entitled for
reimbursement of actual amount spent towards
medical treatment and loss of income of parents
during period of treatment. Considering duration of
treatment as four months and taking notional
income at Rs.8,000/-, claimant would be entitled
for compensation of Rs.32,000/- toward same.
10. Apart from above and since claimant is
suffering from antolgic gait, same is likely to affect
her marriage prospects. Therefore, sum of
Rs.20,000/- is awarded towards same.
11. Thus claimant would be entitled for total
compensation of Rs.1,00,000/- + Rs.32,000/- +
Rs.32,000/- + Rs.20,000/-=Rs.1,84,000/-. Insofar
as rate of interest, following decision of Division
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
Bench it is reduced from 9% to 6%. Therefore,
point for consideration is answered partly in
affirmative.
12. In result, I pass following:
ORDER
Both appeals are allowed in part.
Claimant is held entitled for total
compensation of Rs.1,84,000/- with
interest at 6% per annum from date of
claim petition till deposit.
Insurer is directed to deposit
compensation before Tribunal within six
weeks from date of receipt of certified
copy of judgment.
Direction issued by Tribunal
towards release and deposit would apply
to enhanced compensation also.
MFA No. 100799 of 2016
C/W MFA No. 101155 of 2016
Amount in deposit in MFA
no.101155/2016 is ordered to be
transmitted to Tribunal for payment.
SD/-
JUDGE
AM
