Karnataka High Court

Master Nandeesh vs Chand Pasha on 5 August, 2024

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                                                             NC: 2024:KHC:30893
                                                          MFA No. 3726 of 2014



                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 5TH DAY OF AUGUST, 2024

                                                 BEFORE

                         THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA

                         MISCELLANEOUS FIRST APPEAL NO. 3726 OF 2014 (MV-I)

                    BETWEEN:

                    MASTER NANDEESH
                    S/O VENKATARAMANAPPA
                    AGED ABOUT 15 YEARS,
                    SINCE MINOR
                    BEING REP. BY HIS FATHER
                    CUM NATURAL GUARDIAN
                    VENKATARAMANAPPA,
                    S/O NARAYANAPPA
                    AGED ABOUT 54 YEARS,
                    R/O HOSAHALLI VILLAGE
                    HOGALAGERE POST
                    HOGALAGERE TALUK
                    KOLAR DISTRICT.
                                                                    ...APPELLANT
                    (BY MS.SWATI.G.HEGDE, ADVOCATE FOR
                        SRI.H.PAVANA CHANDRA SHETTY, ADVOCATE)

                     AND:
Digitally signed by
PRAJWAL A            1. CHAND PASHA
Location: HIGH COURT    S/O AHAMED SAB
OF KARNATAKA            AGE MAJOR
                        R/O KODIPALLI VILLAGE,
                        MUTTAKAPALLI POST,
                        SRINIVASAPUR TALUK
                        KOLAR DISTRICT.

                    2.    BAJAJ ALLIANZ GENERAL INSURANCE CO.LTD
                          DIVISIONAL OFFICE
                          T.B.R.TOWERS,
                          1ST CROSS, ADJACENT JAIN COLLEGE,
                          BANGALORE STOCK EX-GROUND
                          NEW MISSION ROAD,
                          BANGALORE-560 027
                                -2-
                                             NC: 2024:KHC:30893
                                          MFA No. 3726 of 2014



     REP. BY ITS MANAGER
                                                  ...RESPONDENTS
(BY SRI.B.PRADEEP, ADVOCATE FOR R2;
    R1-SERVED)

     THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 26.10.2013 PASSED IN MVC
NO.169/2009 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
& CJM, KOLAR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

     THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:      HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA


                        ORAL JUDGMENT

Though this appeal is listed for admission, by consent of

learned counsel for both the parties, the matter is taken up for

disposal.

2. In this appeal, the petitioner has challenged the judgment

and award dated 26.10.2013 in MVC.No.169/2009 on the

file of the Principal Senior Civil Judge and MACT, Kolar

(in short 'the Tribunal').

3. For the sake of convenience, rank of the parties will be

referred to as per their status before the Tribunal.

4. The brief facts of the case are, on 09.07.2008 at about

4:45 P.M., while the petitioner was on his cycle on the road

towards Neelatoor Village of Srinivaspura Taluk, he was

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knocked down by the Goods Auto bearing Registration

No.KA-01-TR-P-9577. Due to which, he sustained head injury

and got treated under hospitalization. After taking treatment,

the petitioner through his guardian, father approached the

Tribunal for grant of compensation of Rs.15,00,000/-.

The Tribunal, after taking evidence and on hearing both the

parties, by the impugned judgment and award allowed the

claim petition, awarding compensation of Rs.80,000/- with

interest at 6% p.a. from the date of petition till the date of

deposit. Pleading inadequacy and seeking enhancement of

compensation, the petitioner has preferred this appeal on

various grounds.

5. Heard the arguments of Ms.Swati.G.Hegde, learned

counsel for the petitioner and Shri B.Pradeep, learned counsel

for the respondent-Insurance Company.

6. It is contended by learned counsel for the petitioner that

at the time of the accident, the petitioner was ten year old

student. He has sustained head injury affecting his vision.

PW.2-Doctor of Shankar Eye Hospital, Kolar, explained the

disability to left eye sight due to blur. For this reason, the

future of the petitioner is affected and 50% of the whole body

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disability should be considered with reference to the schedule

to the Workmen Act. The Tribunal has erroneously fastened the

liability on the owner of the vehicle though the driver of the

vehicle holding LMV license, the principles of Mukund

Dewangan Vs. Oriental Insurance Company Limited 1,

is applicable and the Insurance Company is directed to pay the

compensation.

7. Per contra, learned counsel for the Insurance Company

contended that though PW.2 has given evidence that the

petitioner has blur vision and there is no Eye Test Report

measuring the exact vision of the petitioner. Petitioner has

suffered head injury, post treatment it has resolved and the

Tribunal has rightly held that there is no disability. Even the

Doctor, who examined the petitioner has stated anything about

the disability and supported the impugned judgment.

8. I gave my anxious consideration to the arguments

addressed by both sides and perused the materials on record.

9. The material on record point outs that on 10.07.2008,

the petitioner, while cycling on Neelatoor Village, was hit by a

Goods Auto bearing Registration No.KA-01-TR-P-9577.

AIR 2017 SC 3368

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Medical records shows that the petitioner has suffered from

cerebellar contusion of the left side of the brain, fracture

of left occipital bone and defused cerebral odema with

pneumocephalus. Treatment records shows that the petitioner

was treated at the R.L.Jalappa Hospital and also at St.Johns

Hospital, Bengaluru. Petitioner was in-patient for more than a

period of 39 days i.e., from 12.08.2008 to 19.09.2008 and was

attended by an attendant. Money was spent towards food

and nourishment and travelling. Thus, the petitioner being

victim of the accident is entitled for compensation.

10. The Tribunal has awarded a compensation as follows:

         SL.NO.        PARTICULARS              AMOUNT

            1.          Pain & Agony           Rs.30,000/-

            2.        Medical Expenses          Rs.5,000/-

            3.       Unhappiness & Loss        Rs.40,000/-

                   Loss of income during
            4.                                  Rs.5,000/-
                   treatment

                       TOTAL                   Rs.80,000/-

11. P.W.2 is an eye specialist, according to him, the petitioner

is unable to view to full extent and there is vision blur.

According to him, the petitioner has suffered post traumatic

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brain injury and Left Upper Motor Neuron Facial Nerve Palsy.

PW.2 did not point out the extent of disability sustained by the

petitioner and the report pertain to the vision test is also not

placed before the Tribunal. As rightly contended by the learned

counsel for the Insurance Company, when Eye Surgeon himself

is unable to assess the disability, it is not appropriate to assess

the disability on the different footing rather than blur vision can

be rectified by using spectacles. Therefore, admittedly,

the petitioner is ten years old student at the time of the

accident and how the vision affected his future as a student is

not explained by placing any relevant evidence. Compensation

has to be assessed having regard to the gravity of injury and

future of the child. Hence, towards Pain and Agony-

Rs.40,000/-; Medical expenses, though no bills are produced,

Rs.10,000/-; Loss of income during six months laid up period at

Rs.5,000/- per month, which works out to Rs.30,000/-;

Loss of amenities and discomfort-Rs.50,000/-; Spectacles

charges-Rs.11,000/-; Attendant charges-Rs.6,000/-; Food and

Nourishment-Rs.10,000/-, Travelling expenses-Rs.3,000/- has

to be compensated.

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12. Thus, the petitioner is entitled to the following

compensation:

         SL.NO.           PARTICULARS                     AMOUNT

              1.           Pain & Agony                  Rs.40,000/-

              2.         Medical Expenses                Rs.10,000/-

              3.        Unhappiness & Loss               Rs.50,000/-

                     Loss of income during laid
              4.                                         Rs.30,000/-
                     up period

              5.     Attendant charges                   Rs.6,000/-


              6.     Food & Nourishment                  Rs.10,000/-


              7.     Travelling Expenses                 Rs.3,000/-

              8.     Spectacle charges                   Rs.11,000/-

                         TOTAL                          Rs.1,60,000/-

          Less: Compensation awarded by
                   the Tribunal                           Rs.80,000/-
               Enhanced Compensation                     Rs.80,000/-

It is the just compensation the petitioner is entitled to

under the facts and circumstances of the case.

13. As regarding liability is considered, there is no dispute

that the driver of the vehicle was holding LMV license, which

was valid up to 11.06.2010. The vehicle involved in the

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accident is three wheeler delivery goods auto and it weighs less

than 7500 Kgs. The principles of Mukund Dewangan (supra)

is aptly applicable to this case, Insurance Company is held

liable indemnify the insured and both the respondents are

jointly liable to pay the compensation. The appeal merits

consideration. In the result, the following:

ORDER

(i) The appeal is allowed in part;

(ii) The impugned judgment and award is modified;

(iii) The Petitioner would be is entitled for enhanced compensation of Rs.80,000/- with interest at the rate of 6% per annum from the date of petition till deposit;