Karnataka High Court
Vikit S/O Baburao Adike vs Pandurang And Anr on 4 April, 2024
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NC: 2024:KHC-K:2820
MFA No. 200467 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE DR. JUSTICE CHILLAKUR SUMALATHA
MISCL. FIRST APPEAL NO. 200467 OF 2022 (MV-I)
BETWEEN:
VIKIT S/O BABURAO ADIKE
AGE: 20 YEARS, OCC: LABOUR
R/O.VILLAGE GORNALLI,
TQ AND DIST: BIDAR-585 401.
...APPELLANT
(BY SRI BASAVARAJ R.MATH, ADVOCATE)
AND:
1. PANDURANG S/O NAGAPPA,
AGE: MAJOR, OCC: BUSINESS,
R/O.H.NO.15-2-284,
KUMBARWADA,
Digitally TQ AND DIST: BIDAR-585 402.
signed by
SACHIN (OWNER OF VEHICLE BEARING
Location:
HIGH COURT REG NO.KA-38 R-8369)
OF
KARNATAKA
2. THE BRANCH MANAGER,
UNITED INDIA INSURANCE CO.LTD.,
BASAVA SHREE COMPLEX,
# 8-10-268 TO 273, 1ST FLOOR,
BEHIND GANESH MAIDAN,
STADIUM ROAD, BIDAR-585 401.
(Vide Policy No.2406023118P105452873
Valid from 01.08.2018 to 31.07.2019)
...RESPONDENTS
(BY SRI S.S.ASPALLI, ADVOCATE FOR R-2;
V/O DTD.10.03.2022 NOTICE TO R-1 IS DISPENSED WITH)
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NC: 2024:KHC-K:2820
MFA No. 200467 of 2022
THIS MFA IS FILED U/S 173(1) OF MV ACT, PRAYING TO
MODIFY THE IMPUGNED JUDGMENT AND AWARD DATED
17.11.2021 PASSED BY THE ADDL. MACT AND ADDL. SENIOR
CIVIL JUDGE AT BIDAR IN MVC NO.439/2020, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Basavaraj R.Math, learned counsel for the
appellant as well as Sri S.S.Aspalli, learned counsel
appearing for respondent No.2. Notice to respondent No.1
stood dispensed with.
2. Projecting that the appellant is entitled for a
higher sum as compensation than that which is awarded
by the Motor Accident Claims Tribunal, Bidar through
orders in M.V.C.No.439/2020 dated 17.11.2021, the
present appeal is preferred.
3. The limited question involved as submitted by
Sri Basavaraj R.Math as well as Sri S.S.Aspalli is whether
the assessment of disability by the Tribunal is on proper
lines and whether the decision rendered by the Hon'ble
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Apex Court in the case of Mallikarjun vs. Divisional
Manager, National Insurance Company Limited and
Another reported in (2014) 14 SCC 396, is applicable to
the facts and circumstances of the case on hand.
4. When the learned counsel for the appellant
contends that the appellant was aged about 16 years by
the date of accident, the learned counsel for respondent
No.2 contends that the appellant himself filed the claim
petition projecting the version that he is a major and
therefore his age has to be considered as around 18 years
by the date of accident and thus, the decision of the
Hon'ble Apex Court in Mallikarjun's case is not
applicable. The Tribunal expressed its opinion that the age
of the appellant would be around 16 years by the date of
accident. The relevant medical record i.e., Ex.P.7 - wound
certificate and Ex.P.8 - discharge summary discloses the
age of the appellant as 16 years. Admittedly the accident
occurred in the year 2019. The claim petition was made in
the year 2020. In the claim petition, the appellant
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mentioned his age as 18 years. Therefore, considering
these aspects, this Court is of the view that the appellant
would have been between 16 to 18 years by the date of
accident. This being the case, the decision of the Hon'ble
Apex Court in Mallikarjun's case is applicable.
5. Coming to the next aspect i.e., with regard to
the percentage of disability, though PW.2 who assessed
the disability stated that the disability is 36%, the Tribunal
brought the same down to 10%. The findings of the
Tribunal in this regard at para 24 of the impugned order
are as under :-
"24. On going through the evidence of the
P.W.2, it would reveal that no guidelines issued by
the Ministry of Social Empowerment and Justice have
been followed by him, while assessing the disability.
The mobility and stability components are not
assessed by giving scores as prescribed under the
said guidelines. No formats are furnished by
answering the questions as shown in the said
guidelines and no formula is applied. No proper
description of injuries have been disclosed in the
Ex.P.9 as well as in is evidence. Hence, in my
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opinion, the disability as opined by the P.W.2 to the
tune of 36% is highly exorbitant. In fact, there will
be only 20% of disability will be attributed to the
ankle region as per the aforesaid guidelines. In view
of this, the evidence of the P.W.2 cannot be reliable.
However, his observations as regards to the
infirmities faced by the minor claimant because of
the injuries sustained by him have to be considered
by the Tribunal. Keeping in view of the nature of
injuries, i.e., fracture of distal end of proximal
phalanx of great toe of right leg, fracture of distal
end of proximal phalanx 2nd toe of the right leg,
would show that definitely, the claimant would have
suffered not less than 10% disability, which attracts
a compensation of Rs.1.00 lakh (as per the decision
referred supra).
6. The Tribunal had kept in mind only two injuries
i.e., fracture of distal end of proximal phalanx of great toe
of right leg, fracture of distal end of proximal phalanx 2nd
toe of the right leg. However, as per the contents of Ex.P.7
- wound certificate apart from the aforementioned injuries,
the appellant also sustained fracture of zygomatic arch of
right orbit and fracture of right pterygoid, fracture of
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bilateral ethmoidal air cells walls and fracture of bilateral
maxillary sinus walls. In Ex.P.8-dischrage summary the
fractures to right zygomatic bone finds a mention.
Therefore, having considered the nature of injuries
sustained, this Court is of the view that the disability in
respect of whole body cannot be less than 12%. On
assessing the disability as 12% and on applying the
principles laid down in Mallikarjun's case, the amount of
compensation under all heads excluding medical expenses
would be Rupees Three lakhs.
7. By the material that is brought on record it is
clear that the medical expenditure incurred is Rs.18,753/-.
Thus, the compensation which the appellant is entitled to
would be Rs.3,18,753/-. Therefore, this Court is of the
view that the appeal is required to be allowed in part.
Thus, the following :
ORDER
i) The appeal is allowed in part.
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ii) The compensation awarded by the Motor
Accident Claims Tribunal, Bidar through
orders in M.V.C.No.439/2020 dated
17.11.2021 is enhanced from Rs.1,43,753/-
to Rs.3,18,753/-.
iii) The enhanced sum shall carry interest at
the rate of 6% per annum from the date of
petition till the date of deposit.
iv) The second respondent is directed to
deposit the enhanced sum within a period
of eight weeks from the date of receipt of
copy of this judgment.
v) On such deposit the appellant is permitted
to withdraw the entire amount.
Sd/-
JUDGE
SN
