Karnataka High Court
Aruna D/O Malappa vs Nageshwarappa S/O T.Shankarappa & Ors on 28 July, 2014
Bench: B.S Patil, Rathnakala
M.F.A.No.30416/2013
1
IN THE HIGH COURT OF KARNATAKA
GULBARGA BENCH
DATED THIS THE 28TH DAY OF JULY, 2014
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
AND
THE HON'BLE MRS.JUSTICE RATHNAKALA
MISCELLANEOUS FIRST APPEAL NO.30416/2013(MV)
BETWEEN:
ARUNA D/O MALAPPA
AGE: 10 YEARS, OCC: STUDENT
U/G OF HER NATURAL MOTHER ANNAPURNA
AGE: 34 YEARS, OCC: HOUSEHOLD
R/O JALIHAL CAMP, TQ.SINDHANUR
NOW AT KASBE CAMP
TQ. RAICHUR-584101
...APPELLANT
(BY SRI BABU H. METAGUDDA, ADV.)
AND:
1. NAGESHWARAPPA
S/O T. SHANKARAPPA
AGE: 31 YEARS
OCC: DRIVER OF
LORRY NO.AP-21/Y-2654
R/O H.NO.46-298-B BUDHWARPET
KURNOOL-574101
2. T. SHANKARAPPA
S/O T.VEERAISH
AGE: MAJOR
OCC: BUSINESS &
M.F.A.No.30416/2013
2
OWNER OF SAID LORRY
R/O H.NO.46-302 BUDHWARPET
KURNOOL-518002
3. THE BRANCH MANAGER
RELIANCE GEN. INSURANCE CO.LTD.
BRANCH OFFICE, OPP: PUBLIC GARDEN
STATION ROAD, RAICHUR
4. RAMESH S/O NARASAPPA
AGE: 28 YEARS, OCC: OWNER OF TATA ACE
NO.KA-36/7922, R/O GANDHINAGAR
TQ. SINDHANUR-584201
5. MALLAPPA S/O GYANAPPA BUDINNI
AGE: MAJOR, OCC: OWNER OF SAID
TATA ACE, R/O H.NO.201, BLOCK NO.4
GANDHINAGAR, TQ. SINDHANUR-584201
6. THE MANAGER
SHRIRAM GEN INSURANCE CO.LTD.
E-8, EPIP RIICO SITAPURA, JAIPUR
RAJASTHAN-303022
... RESPONDENTS
(BY SRI SUDARSHAN M., ADVOCATE FOR R3
NOTICE TO R1, R2, R4, R5 & R6 ARE DISPENSD WITH )
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD
DATED 31.12.2012 PASSED IN MVC NO.205/2012 ON THE FILE OF
THE MOTOR ACCIDENT CLAIMS TRIBUNAL (FTC-I) AT RAICHUR,
PARTLY ALLOWING THE CLAIM PETITION AND SEEKING
ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
B.S.PATIL J., DELIVERED THE FOLLOWING:
M.F.A.No.30416/2013
3
JUDGMENT
1. Though this matter was listed for admission, with the consent of the learned counsel for both parties, the same is taken up for final disposal.
2. This appeal is filed by the injured/claimant girl by name Aruna who was aged 8 years at the time of accident and who has suffered crush injury on her left hand seeking enhancement of compensation.
3. Facts briefly stated reveal, that on 26.04.2011 injured was returning home in Tata Ace bearing registration No.KA- 37/7932. On Manvi - Sindhanur Road at about 12:15 a.m. in the midnight in between Amareshwar Camp and Potnal, a lorry bearing registration No.AP-21/Y-2654 driven in a rash and negligent manner came from opposite direction and dashed against the Tata Ace vehicle. As a result of the impact, the Tata Ace vehicle got turtled resulting in grievous injuries to the inmates of the vehicle. One of the M.F.A.No.30416/2013 4 inmate died, whereas others got injured. The injured was initially treated at Manvi and thereafter, was moved to Civil Hospital Raichur. Claimant/appellant - Aruna is one of the injured in the incident. She suffered grievous crush injury on her left elbow and extensive injuries over the left hand. She claimed compensation in a sum of Rs.38,00,000/- for the injuries and permanent disability suffered by her.
4. In support of the claim, one Annapurna mother of the minor claimant was examined as PW.5. Apart from producing other documents, the claimant produced the wound certificate at Ex.P31, which discloses that there was deep crush injury from wrist to shoulder, exposing bones in the left hand. It also discloses that there was fracture of left humerus describing it as a grievous injury. Photographs of the injury disclosing the nature of injury suffered by the claimants/petitioners were produced at Exs.P37 and P38. The Tribunal, keeping in mind the grievous nature of injuries and the disability suffered by M.F.A.No.30416/2013 5 the young girl, referred the matter for the opinion of the medical board consisting of experts. The experts of R.I.M.S. (Raichur Institute of Medical Sciences) Teaching Hospital have examined the child and have given the disability certificate. The disability certificate discloses that there was an extensive scarring on anterior aspect of elbow and forearm, there was fixed flexion deformity of 40 degrees and it was terminally restricted, the range of pronation and supination of forearm was restricted. Volkmans sign was positive. The dorsiflexion of left wrist was also restricted, the donar site of thigh where SSG was taken was also thickened and keloid scar had formed. On radiological examination, the Experts further found that the x-ray of left humerus Ap/Lat showed old malunited fracture of distal humerus with evidence of irregularity in joint line with myositis ossicans. There was patchy osteoporosis at the joint level. The Experts who issued the certificates consisted of a Padiatrician, General Surgeon and an Ortho Surgeon. The Tribunal has referred to this disability M.F.A.No.30416/2013 6 certificate and has taken the permanent disability suffered at 30% and assessed compensation in the following manner:
A) a) towards attendant charges - Rs.2,400/-
b) towards conveyance - Rs.5,000/-
c) towards nourishment - Rs.3,000/-
d) medicine - Rs.5,000/-
Medical and other expenses - Rs.15,400/-
B) Pain and sufferings - Rs.20,000/-
C) Loss of amenities in life - Rs.10,000/-
D) Loss of earnings during
treatment to the next friend of
the petitioner - Rs.27,000/-
(at the rate of
Rs.4,500/- p.m.
for six months)
Future loss of income - Rs.40,500/-
E) Loss of marriage prospectus - Rs.50,000/-
Total - Rs.1,62,900/-
The said amount has been awarded with interest at the rate of 6% per annum from the date of petition.M.F.A.No.30416/2013 7
5. Aggrieved by the amount of compensation awarded, the claimant is before this Court for enhancement of compensation.
6. We have heard the learned counsel for both parties and perused the records. The only point that arises for consideration in this appeal is, "whether the appellant/claimant has made out a case for enhancement of compensation, if so, what is the amount to which the claimant/appellant is entitled to as compensation?"
7. As adverted to above, in the course of narration of facts, it is clear that claimant was a young girl of 8 years at the time of accident. She has suffered grievous injury on her left hand. There is malunited fracture resulting in reduction of flexion by 40% and the opinion of the Doctor discloses that the disability is terminal. The Experts have certified by issuing a disability certificate that the girl has M.F.A.No.30416/2013 8 suffered 30% disability to the whole body. The photographs which are produced and marked in evidence discloses disfiguration of left arm from the forearm till the portion below shoulder.
8. As rightly contended by the learned counsel for the appellant/claimant, in a matter like this where permanent disability is suffered by a child, the award of compensation has to be realistic, keeping in mind the future deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs and the frustration that the child victim undergoes. Compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset, to some extent, the inconvenience or discomfort arising out of the disability and in such cases, award of appropriate compensation towards disability should take care of all the non-pecuniary damages. The Apex Court in the case of MASTER MALLIKARJUN vs. DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED AND M.F.A.No.30416/2013 9 ANOTHER - 2013 (6) SCJ 802 while dealing with award of compensation to a boy aged 12 years has observed in paragraph 12 as under:
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, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure 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; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs.
In the facts of the said case, the Apex Court was considering 18% disability suffered by 12 year old boy, who was hospitalized for about 58 days. Compensation was awarded to the victim in the said case at Rs.3,00,000/-
towards pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, M.F.A.No.30416/2013 10 inconvenience and discomforts, etc., and loss of amenities in life on account of permanent disability.
9. Towards discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization; towards medical and incidental expenses during the period of hospitalization for 58 days; and towards future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment, a sum of Rs.25,000/- each was awarded. Thus, in all, a sum of Rs.3,75,000/- was awarded as compensation for injuries suffered by the boy aged 12 years.
10. In the instant case, we are concerned with a girl aged 8 years. Her left hand has been fully disfigured, apart from being rendered largely immobile. Her marriage prospects are seriously affected. She has been deprived of her normal enjoyment and the pleasures associated with healthy and mobile limbs for rest of her life. The accident in this case has taken place during the year 2011 whereas accident in M.F.A.No.30416/2013 11 the case in which the 12 year old boy was awarded Rs.3 lakhs as compensation for pain and suffering and disability had taken place in the year 2006. Keeping in mind the date of accident, the nature of grievous injuries suffered and the deprivation of ordinary pleasures and enjoyment of life. We are inclined to award a sum of Rs.4,00,000/- under the head of permanent disability and pain and suffering undergone.
11. Since the claimant/appellant is a girl and has lost her marriage prospects, she has to be adequately compensated under this head. The Tribunal has awarded only Rs.50,000/-. This deserves to be enhanced Rs.1,00,000/-.
12. In all other respects the award passed by the Tribunal deserves to be maintained as the same is based on the evidence on record. Thus the claimant/appellant is entitled for additional compensation of Rs.3,37,100/- in addition to the amount of Rs.1,62,900/- awarded by the Tribunal. Thus, the amount of compensation to which the claimant is M.F.A.No.30416/2013 12 entitled is determined and fixed at Rs.5,00,000/-. The enhanced amount shall carry interest at the rate of 6% from the date of petition till the date of payment. The entire enhanced amount of compensation along with accrued interest shall be invested in Fixed Deposit in any nationalized Bank in the name of the minor claimant till she attains the age of 21 years. Interest accrued thereon can be withdrawn for meeting educational expenses of the minor girl. Insurance company shall pay costs of this appeal in a sum of Rs.5,000/- to the claimant.
Sd/-
JUDGE Sd/-
JUDGE sdu