Karnataka High Court
Pruthviraj S/O Irappa Chakalabbi, vs The Divisional Manager, on 19 August, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19 T H DAY OF AUGUS T 2020
BEFORE
THE H ON'BLE MR. JUST ICE M .NAGAP RASANNA
M.F .A.NO.25152/2012 (MV)
BETWEEN :
PRUTHVIRAJ S/O IRAPPA CHAKA LABB I,
AGE : 19 YEARS, OCC: STUDENT ,
R/O NEAR K.C.CIRCLE, K OPPAL,
TQ. & DIST: KOPPAL.
... APPELLANT
(BY SRI C.V .ANGA DI, ADV OCATE)
AN D :
1. THE DIVISIONAL MANAGER,
NATIONAL INSURA NCE CO., LTD.,
DIVISIONAL OFFICE, BILGUNDI COMPLEX ,
STATION ROAD, GULBARGA,
DIST: GUL BARGA.
2. M/S ARATI W/O S HRUTIN SARDAES AI,
AGE : MAJOR, OCC: TRANSPORT B US INESS,
AND OWNER OF T HE TRUCK,
GINIGERA , T Q. & DIST. KOP PAL,
PRESENT LY RESIDING AT KTMS,
GUEST HOUSE, RA JIVNAGAR,
HOSP ET, DIST: BELLARY .
... RES PONDENT S
(BY SRI M.G.GADGOLI, ADVO CATE F OR R .1)
(NOTICE T O R .2 : DISPENSED WITH.)
THIS MISCELLANEOUS FIRST APPE AL IS FILED
UNDER SECTION 173( 1) OF T HE MOT OR VEHICLES ACT ,
1988 PRAYING T HIS COURT T O MODIFY THE JUDGMENT
AND AWARD DATED 3 1.03.2009 PASSED IN
MVC.NO.109/2005 BY THE CIVIL JUDGE (SR .DN)
ADDITIONAL M.A .C.T KOPPAL .
2
THIS APPEAL COM ING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE F OLLOWING:
: JUDGMENT :
This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties.
2. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimant being aggrieved by the judgment dated 31.03.2009 passed by the Civil Judge (Sr.Dn) & Additional Motor Accident Claims Tribunal Koppal, (hereinafter referred to as "the Tribunal" for short), in M.V.C.No.109/2005.
3. Parties will be referred to as per their ranking before the Claims Tribunal.
4. The case of the claimant in terms of the pleadings of the claim petition is that on 25.10.2004 at about 2.00 p.m., the claimant, a 3 minor was traveling on a motorcycle bearing registration No.KA.37/K-3145 as a pillion rider in Koppal. When the motorcycle reached NH.63, while riding towards Hosapete, a goods truck bearing registration No.KA.35/4213 being driven by its driver in a rash and negligent manner, hit the motorcycle. Due to the said accident, the claimant sustained grievous injuries and was immediately shifted to Primary Health Center, Ginigera and then to KIMS Hospital, Hubli and for further treatment to Kshema Orthopedic & Truma Center Hubli, where the claimant claims to have taken treatment as an indoor patient and his left leg was operated and plastered twice in the hospital.
5. The claimant filed a petition under Section 166 of the Act before the Tribunal in MVC.No.109/2005 claiming to have spent huge sums of money towards his treatment on the ground that he was assisting his father in the 4 business claimed a compensation of Rs.8,00,000/- along with interest.
6. On issuance of notice, the 1st respondent-owner of the offending vehicle was placed exparte. The 2nd respondent-Insurance Company appeared and filed its statement of objections denying the petition averments. It was also denied that the driver who was driving the vehicle was driving it in a rash and negligent manner which was the cause of the accident. The date, time and place of the accident were also denied. It was contended that the claim is available only in terms of the conditions of the policy. It was further contended that the claimant had not made the owner, rider and insurer of the motorcycle as party, in which he was traveling as a pillion rider.
7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. 5
8. In order to prove the case, the father of the claimant examined himself as P.W.1 and the doctor who treated the minor injured was examined as PW.2 and marked about 110 documents as Exs.P.1 to P.110. On the other hand the respondent-Insurance Company neither examined any witness nor marked any document on its behalf.
9. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident had occurred due to the rash and negligent driving of the driver of the offending goods Truck and further held that the claimant was entitled to a compensation of Rs.1,68,000/- along with interest at the rate of 8% per annum. Being aggrieved, this appeal has been filed by the claimant for enhancement of compensation.
10. Heard learned counsel Sri C.V.Angadi, appearing for claimant and learned counsel Sri 6 M.G.Gadgoli, appearing for respondent-Insurance Company.
11. Learned counsel for the appellant would contend that the compensation awarded by the Tribunal is contrary to law in as much as compensation in terms of the disability of minor is covered by the Judgment in the case of Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited & Anr reported in AIR 2014 Supreme Court 736, and would contend that the compensation on other heads is grossly inadequate.
12. On the other hand, learned counsel for the respondent-Insurance Company would support the judgment and award of the Tribunal and contend that, what is awarded by the Tribunal as compensation to a minor is just, fair and proper and does not require any interference by this Court.
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13. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the record. The only issue that falls for my consideration is with regard to the quantum of compensation awarded by the Tribunal.
14. Admittedly, the claimant at the time of accident was 12 years old and did suffer disability due to the impact of the accident which was assessed to the extent of 25% by the doctor who treated the claimant for the injuries sustained by him. The disability that was assessed was to the whole body by the doctor. Hence, the said disability will have to be considered in the light of law laid down by the Apex Court in the case of Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited & Anr reported in AIR 2014 Supreme Court 736, wherein the 8 Apex Court at paragraph No.12 has held as follows:
"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, preced ents and the approach of various High Courts, we are of the view that the app ropriate compensation on all other heads in addition to the actual exp enditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For p ermanent disability up to 10%, it should be Re.1 lakh, unless there are excep tional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer p eriod of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, 9 hence, would be entitled to get the compensation as follows: -
COMPENSATI HEAD ON AMOUNT Pain and suffering alrea dy undergone and to be suffered in fut ure , ment al and phys ical shock hardship, inconvenience, Rs.3,00,000/- and discomforts, etc., and loss of amenities in life on account of permanent disab ility . Discomfort, inconvenie nce and loss of earn ings t o the parents Rs.25,000/-
during the period of
hospita lization.
Medical and incidental expenses during the period of Rs.25,000/- hospita lization for 58 days . Future medical expenses for correct ion of the ma l union of Rs.25,000/-
fracture and inc idental
expenses for such treatment.
TOTAL : Rs.3,75,000/-
15. Since the disability of the claimant
comes between 10% and 30%, the claimant
would be entitled to a compensation of
Rs.3,00,000/- as held by the Apex Court in the case of Master Mallikarjun (supra).
16. Apart from the afore stated amount, the claimant would also be entitled to Rs.30,000/- on account of pain and suffering and 10 Rs.30,000/- on account of loss of amenities.
Hence, in all the claimant would be entitled to total compensation of Rs.3,60,000/- as against Rs.1,68,000/- determined by the Tribunal.
17. It is needless to state that the aforesaid enhanced amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till satisfaction of the same by the Insurance Company. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is allowed in part.
Sd/-
JUDGE EM/-