Karnataka High Court
The Manager vs Baby Shalini on 23 November, 2023
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MFA No. 7318 of 2015
C/W MFA No. 4231 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCELLANEOUS FIRST APPEAL NO.7318 OF 2015(MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO.4231 OF 2015(MV-I)
IN MFA NO. 7318 OF 2015:
BETWEEN:
BABY SHALINI,
D/O. GANGANNA
AGED ABOUT 7 YEARS
MINOR, REPRESENTED BY HER NATURAL
GUARDIAN, MOTHER SMT. SOWBHAGYA
W/O. GANGANNA, AGED ABOUT 30 YEARS
PRESENTLY R/AT NEAR WATER TANK
MARI SIDDAIAHNAPALYA,
HESARAGHATTA ROAD, T.B. CROSS
BENGALURU
PREVIOUS ADDRESS:
Digitally signed KODIGO THIRUMALAPURA
by VINUTHA B S
BENGALURU NORTH TALUK,
Location: HIGH BENGALURU.
COURT OF
KARNATAKA ...APPELLANT
(BY SRI. H.N. RAMESH, ADVOCATE)
AND:
1. M/S BAJAJ ALLIANZ GENERAL INSURANCE CO. LTD.,
GROUND FLOOR, NO.31,
TBR TOWER, FIRST CROSS,
NEW MISSION ROAD,
NEAR BENGALURU STOCK EXCHANGE
BENGALURU - 560 027
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MFA No. 7318 of 2015
C/W MFA No. 4231 of 2015
2. SRI. M. V. KEMPAIAH
S/O VENKATEGOWDA
MAJOR NO. 34, FIRST CROSS
II MAIN, CHOWDESWARI NAGAR
LAGGERE, L R RAMANNA LAYOUT
BENGALURU - 560 058
...RESPONDENTS
(BY SRI. S. KRISHNA KISHORE, ADVOCATE FOR R1
VIDE ORDER DATED 05.12.2017,
NOTICE TO R2 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 7.2.2015
PASSED IN MVC NO.4510/2013 ON THE FILE OF THE JUDGE,
COURT OF SMALL CAUSES, 26TH ACMM, (SCCH-09),
BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO. 4231 OF 2015:
BETWEEN:
THE MANAGER
BAJAJ ALLIANZ GIC LTD,
GROUND FLOOR, NO.31,
TBR TOWER, FIRST CROSS,
NEW MISSION ROAD,
NEAR BENGALURU STOCK EXCHANGE,
BENGLAURU NORTH TALUK,
BENGLAURU,
REP BY ITS LEGAL MAGAER,
M/S BAJAJ ALLIANZ GIC LTD,
NO.1/2, GOLDEN HEIGHTS, 4TH FLOOR,
59TH C CROSS, 4TH M BLOCK,
RAJAJINAGAR, BANGALORE-10.
...APPELLANT
(BY SRI. PRADEEP B., ADVOCATE)
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MFA No. 7318 of 2015
C/W MFA No. 4231 of 2015
AND:
1. BABY SHALINI
D/O GANGANNA,
NOW AGED ABOUT 7 YEARS,
MINOR REP BY HER NATURAL GUARDIAN,
MOTHER SMT. SOWBHAGYA,
W/O GANGANNA,
NOW AGED AOBUT 30 YEARS,
R/AT NEAR WATER TANK,
MARI SIDDAIAHNAPALYA,
HESARAGHATTA ROAD,
T B TOWERS, BEGNALURU-52,
PREVIOUS ADDRESS,
KODIGO THIRUMALAPURA,
BANGALORE NORTH TALUK,
BANGALURU-41
2. M. V. KEMPAIAH,
S/O VENKATEGOWDA,
MAJOR, NO.34, I CROSS,
II MAIN, CHODESHWARANAGARA,
LAGGERE, L.R. RAMANNA LAYOUT,
BENGALURU-58.
...RESPONDENTS
(BY SRI. H.N. RAMESH, ADVOCATE FOR R1
NOTICE TO R2 IS DISPENSED WITH,
VIDE ORDER DATED 02.07.2015)
THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT
AGAINST THE JUDGMENT AND AWARD DATED 7.2.2015
PASSED IN MVC NO.4510/2013 ON THE FILE OF THE JUDGE,
COURT OF SMALL CAUSES, 26TH A CMM, (SCCH-09), MACT,
BENGALURU, AWARDING A COMPENSATION OF RS.5,17,000/-
WITH INTEREST @ 6% P.A FROM THE DATE OF PETITION TILL
THE REALIZATION.
THESE APPEALS, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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MFA No. 7318 of 2015
C/W MFA No. 4231 of 2015
JUDGMENT
Heard Sri.H.N.Ramesh, learned counsel for the
appellant and Sri.B.Pradeep, learned counsel who is
representing respondent No.1 in MFA No.7318/2015.
Being cross appeal, Sri.B.Pradeep argued on behalf of the
appellant in MFA No.4231/2015 and Sri.H.N.Ramesh,
learned counsel appeared for respondent No.1-claimant.
2. MFA No.7318/2015 is filed by the claimant
seeking for enhancement of compensation. On the ground
that the amount awarded as compensation by the Motor
Accident Claims Tribunal is excessive and exorbitant, the
insurance company preferred MFA No.4231/2015.
3. The facts of the case if narrated in a narrower
compass as could be perceived through the claim
application are that on 22.06.2013 at about 1.30 p.m.,
while the claimant as a pedestrian was moving near
Hesaraghatta road, one Innova car bearing registration
No.KA-41-M-4499 which was coming from Tirumalapura
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towards T.B.Cross in a rash and negligent manner and
without following traffic rules dashed against the claimant
due to which she fell down and sustained severe injuries
all over her body. The claimant was immediately shifted to
Sapthagiri hospital. First aid was provided there and
thereafter she was shifted to Columbia Asia hospital,
Yeshwanthpur. At the said hospital, she took treatment for
the grievous injuries sustained by her. The claimant
underwent surgery and she was treated as inpatient from
22.06.2013 to 16.07.2013. Though discharged, she was
taking follow up treatment.
4. Prior to the accident, the claimant was hale and
healthy and due to the accident, the claimant was unable
to move her hand freely and there was loss of memory.
The claimant is not in a position to talk properly and the
injuries sustained by her caused permanent disability. The
claimant needs help of a caretaker and due to the injuries
the future of the claimant is put to dark. The family
members of the claimant are undergoing deep mental
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shock, agony, suffering and untold hardship. A case was
registered against the driver of the Innova car which is
involved in the accident. Thus the respondent No.1 being
the insurer of the Innova car which is involved in the
accident and respondent No.2 being its owner are jointly
and severely liable to compensate the claimant to the
extent of Rs.15 lakhs.
5. The insurance company i.e., the respondent
No.1 in MFA No.7318/2015 who preferred the appeal i.e.,
MFA No.4231/2015 filed his counter before the Tribunal
denying all the material averments in the claim petition
including the aspects of negligence and liability. The
insurance company contended that the owner of the
vehicle had willfully entrusted the vehicle to a person who
did not had valid and effective driving license and thus had
committed breach of terms of conditions and policy and
therefore, he is not liable to pay any compensation.
Insurance company also stated that the amount claimed
as compensation is excessive, exorbitant and is against
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the principles of computation of damages. A plea was also
taken that the claimant had contributed to the cause of
accident. Ultimately the insurance company sought the
Tribunal to dismiss the claim petition.
6. Subjecting the evidence of Pws.1 and 2 and
Ex.P1 to P21 to scrutiny, the learned judge of the Motor
Accident Claims Tribunal came to a conclusion that the
claimant is entitled to a sum of Rs.5,17,000/- as
compensation and accordingly, ordered the insurer and
insured to pay the same with interest at the rate of 6%
p.a. from the date of petition till its realization.
7. Arguing in respect of the merits of the matter,
learned counsel appearing for claimant contended that the
claimant who is a girl aged about 5 years by the date of
accident had suffered multiple injuries. Then learned
counsel states that the claimant took treatment for more
than 21 days for the grievous injuries sustained by her
and thus awarding a meager sum of Rs.5,17,000/- as
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compensation is unjustifiable. Learned counsel submits
that the Tribunal failed to consider the evidence of Pw.2 in
justified manner. Learned counsel states that the claimant
sustained head injury and other injuries due to which she
lost her memory to some extent. Learned counsel further
states that the claimant sustained fracture of mandible
and therefore, she was unable to take food properly.
Learned counsel further contends that the claimant lost
her future prospects in life and further there is
disfigurement which aspects were not at all considered by
the Tribunal while awarding compensation. Learned
counsel ultimately seeks the Court to allow the appeal filed
by the claimant and thereby to enhance the compensation
to Rs.15 lakhs.
8. Vehemently opposing the submission thus is
made by the learned counsel appearing for the claimant
before this Court, learned counsel appearing for the
insurance company who preferred appeal vide MFA
No.4231/2015 states that the Tribunal had awarded
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excess amount as compensation. Learned counsel states
that without taking into consideration the actual medical
expenditure incurred, the Tribunal had awarded a sum of
Rs.3,77,000/- towards medical expenses. Learned counsel
submits that the Tribunal while arriving at such decision
had taken into consideration even the advance amount
paid which ought not to have done so. Learned counsel
also states that the amount according to the documentary
evidence produced by the claimant that was incurred
towards medical expenditure is only Rs.2,54,829/-.
Intervening the submission, learned counsel for the
claimant submits that the claimant took treatment at
Sapthagiri hospital also and incurred expenditure. Having
considered the submissions thus made, the point that
emerges for consideration before this Court is:
Whether the amount that is awarded by
the Tribunal towards compensation is justifiable
and if not what would be the amount that can
be awarded as justifiable compensation?
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9. As per the contents of Ex.P9-medical certificate
which was issued by Columbia Asia hospital the claimant
sustained multiple lacerated wounds i.e., wound on left
hand, wound on face, wound on forehead with multiple
abrasions, laceration on left frontal region and also
multiple abrasions over forehead. The claimant also
sustained diffused traumatic brain injury, traumatic sub-
arachnoid hemorrhage, fracture of right mandible and
other lacerated wounds. As per the contents of Ex.P9, the
head injury and the fracture of mandible are grievous in
nature.
10. To establish the genuineness of medical bills
and the plea taken with regard to the injuries sustained,
the claimant produced evidence of Pw.2. It is the evidence
of Pw.2 that he is working as Assistant Surgeon at
Columbia Asia Hospital, Yeshwanthpur, Bengalulru and the
claimant who was aged about 5 years was brought to the
hospital on 22.06.2013. Pw.2 stated that on examination
it was found that the injured sustained multiple lacerated
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wounds on left hand, face, forehead with multiple
abrasions , left frontal lacerations multiple abrasions over
forehead, head injury with diffused traumatic brain injury,
traumatic hemorrhage and undisplaced fracture of right
parasymphysical right mandible, Haemongiona right lobe,
Mild cerebral oedma with mild extradural haemorrage.
Pw.2 stated that the abrasions and lacerations were simple
in nature. However, the injuries sustained over head were
grievous in nature. The patient took treatment between
23.06.2013 and 16.07.2013. She was intubated and
ventilated for a period of 48 hrs and was treated
conservatively. Later she was brought for follow up
treatment by her mother and at that time she complained
headache on and off with weakness of right upper and
lower limb, unable to play like other children, study as
before and mild loss of memory. Pw.2 further stated that
on examination he found hyper pigmented thick scar mark
over left forehead and eyebrow, over the mandible,
tenderness present at the fracture side. On clinical
examination he found the disability as 10%. The
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neuropsychological profile assessment was done which has
shown the disability as 10% upper whole body.
11. Pw.2 was subjected to extensive cross
examination by the learned counsel who appeared for the
insurance company. Pw.2 during the course of cross
examination admitted that as per Alimco manual no
disability is provided for mandible fracture. However he
stated that he followed book written by Dr.Bhagi for
assessment of disability. So far as mandible fracture is
concerned, Pw.2 stated that the injured was treated
conservatively for the said injury and she did not
underwent any operation. He also admitted that in the
discharge summary there was no reference of the fracture
of mandible. Pw.2 stated that he has not referred the
injured to the Neuro Psychologist for assessment of
disability. He admitted that there is a chart for assessment
of Neuro Psychological disability.
12. Thus by all the evidence produced both oral and
documentary, the claimant could establish that she
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sustained multiple simple injuries and head injury which is
grievous in nature and also fracture of mandible which is
grievous in nature. As rightly submitted by Sri.B.Pradeep,
learned counsel who appeared for the insurance company,
as per the contents of the final bill which was issued by
Columbia Asia hospital, the petitioner incurred a sum of
Rs.2,54,829/- only towards medical expenses. Though
learned counsel for the claimant argued that the appellant
also took treatment at Sapthagiri hospital and incurred
expenditure, no proof is produced to that effect. Hence,
this Court considers desirable to reduce the amount that is
awarded as compensation towards medical expenses from
a sum of Rs.3,77,000/- to Rs.2,54,829/-.
13. However, this Court is of the view that the
amount awarded towards compensation under the head
pain and suffering i.e., sum of Rs.30,000/- is too meager.
This Court is also of the view that the amount awarded
towards attendant charges, nutritious expenses and
transportation charges of Rs.10,000/- is on lower side. So
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far as loss of earning capacity and loss of amenities in life
is concerned an amount of Rupees one lakh is awarded
and the said figure needs no interference. Stating that in a
similarly situated case, the Hon'ble Apex Court has
enhanced the compensation, the learned counsel for the
claimant relied upon the decision of the Hon'ble Apex
Court in the case between Kum.Michael vs. Regional
Manager, Oriental Insurance Company Ltd., and Anr.
reported in 2013 AIR SCW 2747. In the said case the
appellant who was aged about 8 years had suffered injury
to his right leg which is grievous in nature and took
treatment conservatively. Analyzing the situation, the
Apex Court at paragraph 10 of the judgment held as
follows.
10. "Dehors the evidence of P.W.I
considering the age at which the appellant
suffered a dreadful accident in which the
appellant suffered a severe injury in his right
leg which has virtually created a deformity in
the said leg, for the rest of his life the
appellant has to suffer with the disability. The
age of the appellant was, therefore a very
relevant factor while determining the
compensation payable as the sufferance of
such physical disaster, that too on his right
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leg cannot be measured in terms of money
precisely but yet having regard to the present
day living conditions and the extent to which
the aspirations of the appellant came to be
demolished by suffering a permanent
disability for no fault of his, it becomes the
responsibility of the respondent to adequately
compensate whatever sufferings undergone
by the appellant at that time and immediately
after the accident as well as the mental agony
that is being suffered by the appellant life
long."
14. The Hon'ble Apex Court opined that a sum of
Rs.2,80,000/- is required to be awarded towards pain and
suffering and permanent disability and Rs.20,000/-
towards medical expenses, conveyance, food and
attendant charges.
15. In the case on hand by the evidence of Pw.2 it
is clear that the claimant who is a girl aged about 5 years
by the date of accident had sustained several lacerated
wounds and abrasions over face and forehead apart from
two grievous injuries. Therefore, having considered the
nature of injuries which ultimately resulted in disfiguration,
this Court considers desirable to enhance the
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compensation under the head pain and suffering from
Rs.30,000/- to Rupees one lakh. By the evidence of Pw.2
and the material available on record, it is clear that the
claimant took treatment as inpatient from 23.03.2013 to
16.07.2013. Having regard to the nature of injuries
sustained, it can safely be held that injured would not
have been in a position to lead normal life atleast for a
period of 6 months.
16. Though the learned counsel appearing for the
insurance company contended that there was no break in
the academic career of the injured, even if the said
contention is taken to be true, the girl aged about 5 years
would have attended the school with great difficulty.
Therefore, this Court considers desirable to award a sum
of Rs.50,000/- towards attendant charges, extra
nourishment and transportation charges.
17. Thus the compensation which the claimant is
entitled to under different heads is as under:
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Sl. Description Amount
No
1 Pain and sufferings Rs.1,50,000
2 Attendant charges, extra
nourishment and Rs.50,000
transportation charges
3 Medical expenses Rs.2,54,829
4 Loss of earning capacity,
loss of amenities and Rs.1,00,000
happiness
Total Compensation Rs.5,54,829
18. Hence, the following:
ORDER
(i) MFA No.7318/2015 is allowed in part.
(ii) The amount awarded as compensation is
enhanced from Rs.5,17,000/- to Rs.5,54,829/-.
(iii) The appeal filed by the insurance company
i.e., MFA No.4231/2017 stands dismissed.
(iv) The award of the Tribunal in all other
aspects holds good.
(v) Both the appeals are accordingly, disposed
of.
(vi) The enhanced amount shall carry interest
at the rate of 6% p.a. from the date of claim
petition till the date of realization.
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(vii) The amount if any deposited by the
insurance company and still remains with this
Court shall be transferred to the account of the
concerned Tribunal.
Sd/-
JUDGE
NS
