Karnataka High Court
Master Abdul Basith vs Sri Sukru Saheb on 27 February, 2024
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NC: 2024:KHC:8126-DB
MFA No. 2869/2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
MISCELLANEOUS FIRST APPEAL NO.2869/2015 (MV-I)
BETWEEN:
MASTER ABDUL BASITH
AGED ABOUT 18 YEARS,
S/O. SYED MOHAMMED MOIDEEN,
RESIDING AT IDEAL HOUSE,
OPP. P.V. FILLING STATION BAIPAS,
PULKERI, SANOOR VILLAGE,
KARKALA TALUK,
UDUPI DISTRICT - 574104. ... APPELLANT
(BY SRI ISMAIL MUNEEB MUSBA, ADVOCATE)
AND:
Digitally signed
by PRABHU
KUMARA
NAIKA 1. SRI SUKRU SAHEB
Location: High AGED ABOUT 31 YEARS,
Court of
Karnataka S/O. AMEER SAHEB,
R@ PAKIRANAKATTE
MALLAR VILLAGE,
UDUPI TALUK - 574106.
2. THE NEW INDIA ASSURANCE CO. LTD.
IIND FLOOR, RAM BHAVAN COMPLEX,
KODIALBAIL POST,
MANGALORE - 575003.
3. SRI YUSABA MOIDEEN
AGED ABOUT 42 YEARS,
S/O. MOIDEEN BAVA
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MFA No. 2869/2015
R@ BHASKER NAGAR,
VICHEEL, UDUPI TALUK-574 106. ... RESPONDENTS
(BY SRI S.V. HEGDE MULKHAND, ADVOCATE FOR R-2;
R-1 - SERVED;
V/O. DATED 03/01/2022 NOTICE TO R-3 IS DISPENSED WITH)
THIS MFA IS FILED UNDER SECTION 173(1) OF M.V. ACT
AGAINST THE JUDGMENT AND AWARD DATED 29.01.2014 PASSED
IN MVC NO.979/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE &
MACT, KARKALA, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Challenging the award in MVC No.979/2007 passed by
the Senior Civil Judge and AMACT., Karkala (hereinafter
referred to as "the Tribunal" for short), the claimant has
preferred this appeal.
2. The appellant was the claimant and respondent
Nos.1 to 3 were respondent Nos.1 to 3 before the Tribunal. For
the purpose of convenience, the parties will be referred to
henceforth according to their ranks before the Tribunal.
3. On 09.09.2006 at about 7.15 a.m. when the minor
petitioner was riding his bicycle near Pappayibettu-Pulkeri
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bypass road, within the limits of Karkala Town Police Station,
Eicher Goods Vehicle bearing Registration No.KA-20/A-6841 hit
him and caused accident. In the accident, he suffered grievous
injuries. After preliminary treatment in Spandana Hospital,
Karkala, he was shifted to Tejasvini Hospital, Mangaluru, and
treated there as an inpatient for forty four days.
4. On the complaint of one Rajesh, Karkala Town
Police registered FIR as per Ex.P-1 and on conducting the
investigation, they filed charge sheet as in Ex.P-2 against the
driver of the tempo. At the relevant time, respondent No.3 was
the driver, respondent No.1 was the registered owner and
respondent No.2 was the insurer of the Tempo bearing
Registration No.KA-20/A-6841.
5. Since the injured claimant was a minor aged about
ten years, his mother as his natural guardian filed
MVC.No.979/2007 before the Tribunal claiming that the
accident occurred due to actionable negligence on the part of
the driver of the tempo, due to the accident the claimant
suffered permanent physical disability and lost amenities in life
etc. She claimed compensation of Rs.20,00,000/- from the
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respondents. It was contended that respondent Nos.1 and 2
being the owner and insurer of the offending vehicle are liable
to pay the compensation due to vicarious and contractual
liability.
6. Respondent No.2-insurer alone contested the
petition denying the actionable negligence on the part of the
driver and involvement of the insured vehicle, age, injuries
suffered by the victim and its liability to pay the compensation.
Before the Tribunal, the next friend of the claimant was
examined as PW.1, the doctor who treated the claimant was
examined as PW.2. Exs.P-1 to P-27 were marked on behalf of
the claimant. The respondents did not lead any evidence, but
the insurance policy was marked as Ex.R-1.
7. The Tribunal, on hearing the parties, held that the
accident occurred due to the actionable negligence on the part
of the driver. The Tribunal, relying on the medical evidence,
held that the minor victim has suffered 15% permanent
disability to the left lower limb. The Tribunal, awarded
compensation of Rs.1,58,342/- on different heads as per the
table below:
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Sl.NO. Compensation Heads Compensation
Amount(Rs.)
1 Pain and agony 20,000/-
2 Loss of amenities of life 10,000/-
3 Rest, nourishment and
attendant charges 10,000/-
4 Medical expenses
(Rs.83,342.27) 83,342/-
5 Future medical expenses 10,000/-
6 Conveyance 5,000/-
7 Permanent disability 20,000/-
TOTAL 1,58,342/-
8. None of the respondents have challenged the said
award. The claimant has challenged the award on the ground
of inadequacy of compensation.
9. Sri Ismail Muneeb Musba, learned counsel for the
claimant, submits that the claimant had suffered permanent
physical disability, the Tribunal should have awarded
compensation under the head of loss of future earnings and the
compensation awarded on other heads is also on the lower
side. Whereas, Sri S.V.Hegde Mulkhand, learned counsel for
respondent No.2-insurer, relying on the judgment of the
Hon'ble Supreme Court in the case of Mallikarjun vs.
Divisional Manager, National Insurance Company Limited
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and Another [(2014)14 SCC 396], submits that in the case
of children aged below 12 years, for permanent disability upto
10%, the compensation payable under the head of loss of
future earning should be Rs.1,00,000/-. Therefore, he submits
that the compensation awarded by the Tribunal on the other
heads covers the permanent disability also.
10. In the present case, at the time of accident, the
claimant was aged ten years. No material was produced to
show that he had any exceptional achievement or child prodigy
to hold that he falls under the zone of exceptionally prominent
person. The doctor-PW.2 deposed that the claimant had
suffered 15% permanent disability to his left lower limb. He
did not even state what was the percentage of the disability to
the whole body. As per his evidence, the claimant had suffered
the following injuries:
(i) Lacerated wound over the lower 1/3rd of left leg.
(ii) Lacerated wound over the left knee.
(iii) Abrasion over the lateral aspect of right thigh.
(iv) Abrasion and swelling over the right side forehead.
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(v) Fracture of left medial malleolus with loss of bone and
skin with partial rupture of quadriceps mechanism of left
knee.
11. The fracture was to the weight bearing bone.
Therefore, the compensation of Rs.20,000/- awarded by the
Tribunal on the head of pain and suffering is on the lower side.
The award of Rs.50,000/- on the head of pain and suffering for
the fracture and other simple injuries suffered by the claimant
would be just and reasonable. The medical evidence shows
that the claimant was admitted into the hospital for forty four
days. As he had suffered fracture of left medial malleolus with
loss of bone and skin with partial rupture of quadriceps
mechanism of left knee, he was not in a position to play or
attend to the school and enjoy the amenities like other
children.
12. Ex.P-15, case sheet shows that the claimant had
suffered degloving injuries and he was on crutches. The
disability certificates at Ex.P-14 issued by Dr.S. Adyanthaya
and Prof. Dr.M.Shantharam Shetty show that the claimant had
suffered 15 degree of restriction in movement of the left leg,
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has ankle dorsiflexion, 15 degree of plantar flexion and has a
valgus deformity which required a surgery once he attains the
age of eighteen years. Considering the same, the compensation
awarded under the head loss of amenities is on the lower side.
Awarding of Rs.25,000/- under the said head would meet the
ends of justice.
13. The compensation awarded under the head food,
nourishment and attendant charges is just and reasonable and
needs no interference. The compensation awarded under the
head of medical expenses was based on the documents
produced by the claimant, which also needs no interference. As
per Ex.P-14, the claimant had to undergo another surgery after
attaining the age of eighteen years, considering the same
Rs.10,000/- is awarded for the medical expenses by the
Tribunal for the first surgery and Rs.10,000/- for the future
medical expenses would be on the lower side and the same
should have been Rs.25,000/-.
14. The claimant was in hospital for forty four days.
Since the claimant hails from Karkala, the relatives had to
shuttle from hospital and house, the claimant should have been
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awarded atleast Rs.10,000/- under the head of conveyance
charges. As per the judgment in Mallikarjun case, the
claimant is entitled to compensation of Rs.1,00,000/- on loss of
future earnings/disability. Therefore, the just compensation
payable is as follows:
Sl.NO. Compensation Heads Compensation
Amount(Rs.)
1 Pain and agony 50,000/-
2 Loss of amenities of life 25,000/-
3 Rest, nourishment and
attendant charges 10,000/-
4 Medical expenses
(Rs.83,342.27) 83,342/-
5 Future medical expenses 25,000/-
6 Conveyance 10,000/-
7 Permanent disability 1,00,000/-
TOTAL 3,03,342/-
Compensation awarded -1,58,342/-
By the Tribunal
Enhanced compensation 1,45,000/-
15. The enhanced compensation of Rs.1,45,000/- shall
carry interest at the rate of 6% p.a. from the date of petition
till the date of realization excluding the period between
26.09.2015 and 03.01.2022. The appeal deserves to be
allowed accordingly. Hence, the following:
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ORDER
(i) The appeal is allowed in part.
(ii) The appellant/claimant is awarded compensation of
Rs.1,45,000/- over and above the compensation awarded
by the Tribunal.
(iii) Respondent No.2/insurer shall deposit the said amount
before the Tribunal with interest thereon with 6% p.a.
from the date of petition till the date of deposit within
four weeks from the date of receipt of a copy of this order
excluding the period between 26.09.2015 and
03.01.2022.
(iv) On such deposit, the Tribunal shall release the said
compensation amount to the appellant (as he would have
been major by this time) on furnishing the required
documents.
Sd/-
JUDGE
Sd/-
JUDGE
S*
