Karnataka High Court
Minor Mahin D/O Khalik vs Chain Singh S/O Sawai Singh on 3 April, 2024
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NC: 2024:KHC-D:6074
MFA No. 103979 of 2016
C/W MFA No. 103978 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE VIJAYKUMAR A.PATIL
MISCELLANEOUS FIRST APPEAL NO. 103979 OF 2016 (MV-D)
C/W
MISCELLANEOUS FIRST APPEAL NO. 103978 OF 2016
IN MFA NO. 103979 OF 2016
BETWEEN:
MINOR MAHIN D/O. KHALIK,
AGE: 8 YEARS,
REP/BY HER MOTHER AND
NATURAL GUARDIAN,
SMT.MUNNI @ MEBOOB BEE,
W/O. KHALIK, AGE: 36 YEARS,
R/O. NEAR BREEZ HOTEL,
BENGALURU ROAD, BALLARI-583131.
...APPELLANT
(BY SRI. MANJUNATHA G. PATIL, ADVOCATE)
Digitally signed AND:
by ROHAN
HADIMANI T
Location: HIGH 1. CHAIN SINGH S/O. SAWAI SINGH,
COURT OF AGE: 36 YEARS, DRIVER OF THE LORRY
KARNATAKA
BEARING REG. NO.RJ-30/GA-2637,
R/O. BADIABHAU POST,
JAWAJA BEAWAR DISTRICT,
AJMIR, RAJASTHAN STATE-330108.
2. RAJESH KUMAR PALIWAL,
S/O. KRISHANAKANTH PALIWAL,
AGE: MAJOR, OWNER OF THE LORRY
BEARING REG. NO.RJ-30/GA-2637,
R/O. PARAWAL VILLAGE IN BAGALOL TALUKA
OF NATHDWARA DISTRICT, RAJASGAMANDH,
RAJASTHAN STATE-330108.
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MFA No. 103979 of 2016
C/W MFA No. 103978 of 2016
3. M/S. NEW INDIA ASSURANCE COMPANY LIMTED,
BY ITS DIVISIONAL MANAGER,
BALLARI-583131.
...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R3;
NOTICE TO R1 & R2 DISPENSED WITH)
THIS MFA IS FILED U/S.173(1) OF MOTOR VEHICLES ACT,
1988, AGAINST THE JUDGMENT AND AWARD DATED 16.11.2015
PASSED IN MVC NO.694/2013 ON THE FILE OF THE MEMBER MOTOR
ACCIDENT CLAIMS TRIBUNAL-XII, AT BALLARI, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
IN MFA NO. 103978/2016
BETWEEN:
SMT. MUNNI @ MEBOOB BEE W/O. KHALIK,
AGE: 36 YEARS, OCC: EMPLOYEE IN SMART
COMMUNICATIONS, R/O. NEAR BREEZ HOTEL,
BENGALURU ROAD, BALLARI.
...APPELLANT
(BY SRI. MANJUNATHA G. PATIL.,ADVOCATE)
AND:
1. CHAIN SINGH S/O. SAWAI SINGH,
AGE: 36 YEARS, DRIVER OF THE LORRY
BEARING REG. NO.RJ-30/GA-2637,
R/O. BADIABHAU POST,
JAWAJA BEAWAR DISTRICT,
AJMIR, RAJASTHAN STATE.
2. RAJESH KUMAR PALIWAL,
S/O. KRISHANAKANTH PALIWAL,
AGE: MAJOR, OWNER OF THE LORRY
BEARING REG. NO.RJ-30/GA-2637,
R/O. PARAWAL VILLAGE IN BAGALOL
TALUKA OF NATHDWARA DISTRICT,
RAJASGAMANDH, RAJASTHAN STATE.
3. M/S. NEW INDIA ASSURANCE COMPANY
LIMTED, BY ITS DIVISIONAL MANAGER,
BALLARI.
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MFA No. 103979 of 2016
C/W MFA No. 103978 of 2016
...RESPONDENTS
(BY SMT. PREETI SHASHANK, ADV. FOR R3;
NOTICE TO R1 & R2 DISPENSED WITH)
THIS MFA IS FILED U/S. 173(1) OF MOTOR VEHICLE ACT
1988, AGAINST THE JUDGMENT AND AWARD DATED 16.11.2015
PASSED IN MVC NO.693/2013 ON THE FILE OF THE MEMBER MOTOR
ACCIDENT CLAIMS TRIBUNAL-XII, AT BALLARI, PARTLY ALLOWING
THE CLAIM PETITION FOR COMPENSATION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THESE APPEALS, COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION, THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
Though these appeals are listed for hearing on
interlocutory application, with the consent of the learned
counsel for the parties, both these appeals are taken up
for final disposal.
2. MFA.No.103978/2016 is arising out of the
MVC.No.693/2013 and MFA.No.103979/2016 is arising out
of the MVC.No.694/2013. Both the appeals are filed by the
claimants/injured, being aggrieved by the common
judgment and award dated 16.11.2015 passed in the
above said MVC numbers by the Motor Accident Claims
Tribunal-XII, Ballari (for short, 'Tribunal').
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3. Heard Sri.Manjunath G.Patil, learned counsel
appearing for the appellants/claimants and Smt.Preeti
Shashank, learned counsel appearing for the respondent
No.3/Insurance Company.
4. Learned counsel appearing for the
appellants/claimants submits that in MVC.No.693/2013,
the Tribunal has committed grave error in assessing the
disability at 50% which is contrary to the evidence
available on record, more particularly the evidence of PW4
to PW6. It is submitted that the award of compensation by
the Tribunal on the other heads is also on lower side and is
required to be reassessed taking note of the evidence
available on record. He further submitted that in
MVC.No.694/2013, the Tribunal has committed grave error
in awarding meager compensation of Rs.3,00,000/- to the
minor/injured, hence, he seeks to reassess the same
keeping in mind the law laid down by the Hon'ble Apex
Court in the case of Master Mallikarjun Vs. Divisional
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Manager, National Insurance Company Limited &
Another1. Thus, he seeks to allow both the appeals.
5. Per contra, learned counsel appearing for the
respondent No.3/Insurance Company supports the
impugned judgment and award of the Tribunal and
submits that insofar as the injured in MVC.No.693/2013 is
concerned, the Tribunal is justified in assessing the
disability at 50%, as the disability assessed by three
Doctors are towards particular limb of the body and hence,
consolidating all the disability assessed by three Doctors,
the Tribunal has assessed the disability at 50%. She
further submits that all the three Doctors have assessed
the disability on higher side and their opinion is overlapped
with regard to the injuries sustained by the
appellants/claimants. She submits that the award of
compensation by the Tribunal on the other heads is also
just and proper which does not call for any enhancement.
She further submits that in MVC.No.694/2013, admittedly,
2014(14) SCC 396
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the clamant has not examined the Doctor before the
Tribunal, hence, the Tribunal has justified in awarding
global compensation of Rs.3,00,000/- based on the
documentary evidence available on record, which does not
call for any enhancement. Thus, she seeks to dismiss both
the appeals.
6. I have heard the arguments of the learned
counsel appearing for the appellants/claimants and
learned counsel appearing for the respondent
No.3/Insurance Company. Perused the material available
on record.
7. It is not in dispute that both the
appellants/claimants have met with a road accident on
28.03.2012 and sustained grievous injuries. Insofar as
MVC.No.693/2013 is concerned, the appellant has
sustained the following fractures and injuries as evident
from Ex.P7-Wound Certificate:
"(1) Blunt traumatic crush injury over right side of face
and appearance of right eye ball completely lost with
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comminuted fracture of nasal bones mandible upper and
lower.
(2) Left side bleeding 3 X ½ X bone deep on frontal
region.
(3) Diffuse swelling over lateral aspect of right hip with
painful movements.
(4) Diffuse swelling with tenderness over mid of right
leg.
(5) Diffuse welling all around the right foot with painful
movements at ankle joint and the Doctor has not given
opinion regarding the above said injuries."
8. The claimant in order to establish the factum of
disability as assessed by PW4 to PW6 who are the Eye
Specialist (Ophthalmologist), Orthopaedist and Dentist
contends that they have assessed the disability at 40%,
25% and 25% respectively. PW4 has assessed the
disability at 40% in respect of right eye bowl. Insofar as
the disability assessed by PW5 and PW6 are concerned,
the disability assessed by them are 25% each, to the
whole body. Taking note of the injuries referred supra and
on re-appreciation of oral evidence of PW4 to PW6 and
after considering other evidence available on record and
also keeping in mind that the right eye bowl of the
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claimant has been completely lost due to the accident, this
Court reassesses the disability at 65% for the purpose of
determination of compensation.
9. This Court on assessing the disability of the
claimant at 65% and keeping in mind the injuries suffered
by the appellant, deems it appropriate to award 40%
addition to the assessed income of the appellant/claimant
under the head of loss of future prospects. Thus, loss of
future income of the appellant/claimant in
MFA.No.103978/2016 (MVC.No.693/2013) due to disability
is recomputed as under:
Rs.10,000 (income) + 40% (future prospects) x 12 (months) x
16 (multiplier) x 65% (disability) = Rs.17,47,200/-
10. This Court keeping in mind the oral testimony
of three Doctors and nature of injuries suffered by the
appellant/claimant, deems it appropriate to award a sum
of Rs.30,000/- (i.e. Rs.10,000 X 3 months) under the head
of 'loss of income during laid-up-period'.
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11. Insofar as the award of compensation on all the
other heads is concerned, the same is unaltered. Thus, in
all, the claimant in MFA.No.103978/2016
(MVC.No.693/2013) shall be entitled to modified
compensation under the following heads:
HEADS AMOUNT
(in Rs.)
Loss of future income due to disability 17,47,200/-
Towards pain and suffering 75,000/-
Medical expenses 30,000/-
Food, nourishment, special diet, 70,000/-
conveyance and attendant charges
Loss of income during laid-up-period 30,000/-
Loss of amenities 50,000/-
Total 20,02,200/-
12. Insofar as award of compensation in
MVC.No.694/2013 is concerned, the Tribunal after
considering the material evidence available on record has
awarded total compensation of Rs.3,00,000/- to the
injured/minor. This Court considering the nature of injuries
suffered by the minor and keeping in mind her age and
also keeping in mind the enunciation of law laid down by
the Hon'ble Apex Court in the case of Master Mallikarjun
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(supra) is of the considered view that the claimant/injued
is entitled to an additional sum of Rs.40,000/- globally.
13. Thus, the appellant/claimant in
MFA.No.103978/2016 (MVC.No.693/2013) shall be entitled
to total compensation of Rs.20,02,200/- as against
Rs.11,85,000/- awarded by the Tribunal and the
appellant/claimant in MFA.No.103979/2016
(MVC.No.694/2013) shall be entitled to total compensation
of Rs.3,40,000/- (i.e.Rs.3,00,000 + 40,000 addition) as
against Rs.3,00,000/- awarded by the Tribunal.
14. In the result, this Court proceeds to pass the
following:
ORDER
a) Both the appeals are allowed in part.
b) The impugned judgment and award of the
Tribunal is modified to an extent that the
appellant/claimant in MFA.No.103978/2016
(MVC.No.693/2013) shall be entitled to total
compensation of Rs.20,02,200/- as against
Rs.11,85,000/- awarded by the Tribunal and
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the appellant/claimant in
MFA.No.103979/2016 (MVC.No.694/2013)
shall be entitled to total compensation of
Rs.3,40,000/- as against Rs.3,00,000/-
awarded by the Tribunal.
c) The enhanced compensation in both the
cases shall carry interest at the rate of 6%
per annum from the date of petition till the
date of payment.
d) The Insurance Company shall deposit the
enhanced compensation amount with
accrued interest before the Tribunal within a
period of six weeks from the date of receipt
of certified copy of this judgment.
e) On such deposit, the same shall be released
in favour of the appellants/claimants.
f) Registry to transmit the records, if any, to
the Tribunal forthwith.
g) Needless to say that the appellants/claimants
shall not be entitled to any interest on the
enhanced compensation for the delayed
period. Registry to take note of the same
while drawing award.
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h) Draw modified award accordingly.
Sd/-
JUDGE
RH
