Karnataka High Court

Oriental Insurance Co. Ltd vs Sri Prakash Hanamant Madar on 24 May, 2023

Bench: M.G.Umapresided Bymguj

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                                                      MFA No. 101295 of 2017




                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                            DATED THIS THE 24TH DAY OF MAY, 2023
                                             BEFORE
                              THE HON'BLE MR JUSTICE M.G.UMA
                                  M.F.A. NO. 101295/2017 (MV-I)
                   BETWEEN:

                   ORIENTAL INSURANCE CO. LTD.,
                   BY ITS DIVISIONAL MANAGER,
                   KRISHNA COMMERCIAL COMPLEX,
                   NEAR L.I.C BUILDING, AMARAI RAOD,
                   SANGLI-516416, HEREIN REPRESENTED BY
                   ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE,
                   SUMANGALA COMPLEX, II FLOOR, LAMINGTON ROAD,
                   HUBBALLI, HEREIN REPRESENTED BY ITS
                   DEPUTY MANAGER.
                                                                  ...APPELLANT
                   (BY SRI. R. R. MANE, ADVOCATE)

                   AND:

                   1.   SRI PRAKASH HANAMANT MADAR,
                        AGE:ABOUT 17 YEARS, OCC:STUDENT, MINOR R/BY M/G
                        FATHER, SRI HANAMANT SHRIMANT MADAR,
                        AGE:42 YEARS, OCC:AGRICULTURE,
                        R/O KOHALLI TAL:ATHANI, DIST:BELAGAVI.
Digitally signed
by VINAYAKA
BV                 2.   SMT.SUVARNA DARYAPPA KARANDE,
Location: HIGH
COURT OF                AGE:MAJOR, OCC:HOUSEHOLD WORK,
KARNATAKA
DHARWAD                 R/O:SHANKAR COLONY, JATH, TAL:JATH, DIST:SANGLI.
                        (OWNER OF TRAX CRUISHER BEARING NO.
                        MH-10/AN-0915)
                                                                 ...RESPONDENTS
                   (BY SRI. SANGAMESH S. GHULAPPA NAVAR,
                   ADVOCATE FOR R1;
                   NOTICE TO R2 IS DISPENSED WITH)

                        THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
                   1988, AGAINST THE JUDGMENT AND AWARD DATED 29.12.2016
                   PASSED IN MVC NO.2796/2012 ON THE FILE OF THE ADDITIONAL
                   SENIOR CIVIL JUDGE AND MEMBER, ADDITIONAL MOTOR ACCIDENT
                   CLAIMS TRIBUNAL, ATHANI AND ETC.
                                 -2-
                                         MFA No. 101295 of 2017




     THIS MFA, COMING ON FOR FINAL HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

This appeal is filed by the insurer impugning the judgment

and award passed by the learned Addl. Sr. Civil Judge and JMFC,

Athani (hereinafter referred to as the Tribunal) dated 29.12.2016 in

M.V.C. No. 2796/2012 seeking for reduction of compensation.

Parties shall be referred to as per their rank before the

Tribunal.

2. Brief facts of the case are as under:

On 01.01.2012 at about 6.00 p.m. the minor son of the

petitioner was playing in front of the house. At that time driver of

Trax Cruiser bearing Reg. No. MH-10/AN-0915 coming from Athani

driven the same in high speed, in a rash and negligent manner and

dashed to the boy. As a result of the accident the minor son of the

petitioner sustained injuries to left leg below knee, left foot and

other multiple injuries all over the body. The injured was shifted to

the hospital and treatment was given. Father of the minor boy filed

the claim petition before the Tribunal claiming compensation for the

injuries sustained by the minor aged 9 years in the road traffic

MFA No. 101295 of 2017

accident. Therefore, the claimant sought for grant of just

compensation.

Respondent No.2 being the insurance company resisted the

claim on various grounds denying the accident, rash and negligent

driving and also nature of injuries, etc.

3. The Tribunal on the basis of the materials placed before it

formulated the following issues for consideration.

1. Whether the petitioner proves that he has sustained the grievous injuries as mentioned in Column No. 11 of the petition in a road traffic accident that occurred on 01.01.2012 at about 18-00 hours infront of the house of Annappa Ramappa Madar within the limits of Kohalli village due to the rash and negligent driving of the driver of the Trax Cruiser bearing Registration No. MH- 10/AN-0915 owned by the respondent No.1as alleged in the petition?

2. Whether the petitioner is entitled for compensation as claimed? If so, to what amount and from whom?

3. What order or award?

---

4. The claimant examined PWs 1 and 2 and got marked

Exs.P.1 to P.19 in support of his contention. The respondents

have not led any evidence nor got marked any documents in

support of their defence. The tribunal after taking into

consideration all these materials on record answered issue no.1 in

the affirmative and awarded global compensation of Rs.4,50,300/-

MFA No. 101295 of 2017

with interest at 6% p.a. Impugning the judgment and award, the

insurance company is before this Court.

5. I have heard Sri Ravindra R.Mane, learned counsel for the

appellant and Sri Sangamesh S. Ghulappanavar, learned counsel

for the insurer and perused the material on record including the trial

Court records.

6. Learned counsel for the appellant submitted that the boy

aged 9 years sustained injuries with one fracture. The Doctor who

treated the injured was examined as PW2. He has categorically

stated that the injured sustained partial disability of 40% to the limb.

Therefore, to the whole body it could be at 10%. Applying the

principles laid down by the Apex Court in Master Mallikarjun Vs.

Divisional Manager, The National insurance Company Limited

& Anr. (AIR 2014 SC 736), the compensation towards pain and

suffering could be at Rs.1 lakhs. The loss of income to the parents

during the period of treatment could be taken at Rs.25,000/- and

the actual medical expenses could be awarded but the Tribunal

without any basis awarded an exorbitant amount of Rs.4,50,300/-

and therefore the appeal is to be allowed and the compensation

awarded is to be modified.

MFA No. 101295 of 2017

7. Per contra, learned counsel for the respondent-claimant

opposing the appeal submitted that the Tribunal has rightly arrived

at a conclusion that the claimant is entitled to compensation of

Rs.4,50,300/-. There are no reasons to interfere with the same and

prays for dismissal of the appeal.

8. In view of the above, the point that would arise for

consideration in this appeal is:

Whether the impugned judgment calls for interference

by this Court?

9. My answer to the above point is in the affirmative for the

following;

REASONS

10. The undisputed facts of the case are that the boy aged 9

years sustained injury in the road traffic accident and he sustained

one fracture, i.e., compound communeted lateral mallealar fracture

with degloving injury at left foot. Admittedly he has taken treatment

as an inpatient for a period of 15 days. The Apex Court in Master

Mallikarjun (supra), laid down the guidelines for determination of

compensation and it is held at paragraph no. 12 as under:

MFA No. 101295 of 2017

"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and up to 30% to the whole body, Rs. 3 lakhs; upto 60%, Rs. 4 lakhs; up to 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability upt 10%, it should be Re. 1 lakh, unless there are exceptional circumstances to take different yardstick.."

11. Applying the principles to the case on hand, the petitioner

who was aged 9 years, has suffered 10% permanent/ partial

disability to the whole body, is entitled to compensation of Rs. 1

lakhs. Loss of income to the parents during the period of treatment

/ hospitalization could be reasonably taken at Rs.25,000/-. Actual

medical expenses incurred is Rs.31,500/- for which the claimant is

entitled to. Therefore, the claimant is entitled for a total

compensation of Rs.1,56,500/-. The Tribunal awarded

compensation of Rs.4,50,300/-. I am of the opinion that the

Tribunal awarded exorbitant amount of compensation without any

basis. Hence, the judgment and award passed by the Tribunal is to

be modified.