Karnataka High Court
Kumari. Laxmisree vs The Managing Director on 17 April, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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MFA No. 10130/2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
MISCELLANEOUS FIRST APPEAL NO. 10130/2018 (MV-I)
BETWEEN:
KUMARI. LAXMISREE
D/O NAGESH
AGE 16 YEARS,
R/O TUPPADAMADU VILLAGE
NAGAMANGALA TALUK
MANDYA DISTRICT
SINCE APPELLANT IS MINOR
REPRESENTED BY
HER FATHER AND NATURAL GUARDIAN
SRI NAGESH S/O NAGARAJ.
...APPELLANT
(BY SRI. SHIVABHUSHAN .S. HATTI, ADVOCATE FOR
SRI. S. N. HATTI, ADVOCATE)
AND:
Digitally
signed by K S THE MANAGING DIRECTOR
RENUKAMBA
Location:
KSRTC DEPOT
High Court of BANGALORE CENTRAL OFFICE
Karnataka
K H ROAD, SHANTHINAGAR
BENGALURU - 560 027.
...RESPONDENT
(BY SMT. H.R. RENUKA, ADVOCATE)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:26/09/2018 PASSED IN MVC
NO.982/2015 ON THE FILE OF THE XVIII ADDITIONAL JUDGE,
COURT OF SMALL CAUSES, MEMBER, MACT, BENGALURU (SCCH-
4), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
K.S.MUDAGAL.J., DELIVERED THE FOLLOWING:
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MFA No. 10130/2018
JUDGMENT
"Whether the compensation awarded to the claimant under the impugned award is just?" is the question involved in this case.
2. The appellant was claimant in MVC No.982/2015 on the file of XVIII Additional Judge, Court of Small Causes and MACT, Bengaluru.
3. On 11.08.2013 at 12.30 p.m., the claimant after practicing dance class for Independence Day Program at her school, was returning to her house in auto rickshaw. When she was crossing the road on alighting from auto-rickshaw at Tuppadamaduvina Gate, Bindiganavile, Nagamangala, the KSRTC Bus bearing No.KA.09.F.3563 proceeding from Bindiganavale to Nagamangala, hit her and dragged her upto certain distance. The wheels of the bus ran over her both legs.
4. Regarding accident, one Ravi Kumar filed the complaint as per Ex.P2 against the driver of the bus. Based on the same, the FIR-Ex.P1 was registered against the bus driver. On investigation, the Nagamangala Town Police filed -3- MFA No. 10130/2018 charge sheet against the driver of the bus as per Ex.P3 for the offences punishable under Sections 279, 337 and 338 of IPC alleging that the driver of the bus drove the same in rash and negligent manner so as to endanger the human life, caused the accident and grievous injuries to the claimant.
5. The injured claimant was shifted to Nagamangala Hospital. After the first-aid, the victim was taken to Beluru I.T. Hospital and from there she was shifted to Hosmat Hospital, Bengaluru. She was treated as inpatient for 28 days on two occasions ie., from 11.08.2013 to 02.09.2013 and from 30.09.2013 to 04.10.2013. Her both lower limbs were amputated above knee. At the time of accident, the claimant was aged 12 years.
6. The claimant filed MVC No.982/2015 through her next friend/father against the respondent the owner of the bus claiming compensation of Rs.1 Crore. The respondent contested the petition denying the rash and negligent driving on the part of the driver of the bus, the age of the claimant, injuries suffered by her, the treatment taken by her and the medical expenses incurred to her. The -4- MFA No. 10130/2018 respondent also disputed the quantum of compensation and its liability to pay compensation.
7. In support of the claim of the claimant, PWs. 1 to 7 were examined and Exs.P1 to P30 were marked. On behalf of the respondent, the driver of the offending bus was examined as RW.1 and no documents were produced.
8. The Tribunal on hearing both sides and relying on Exs.P1 to P6 and the evidence of PWs. 2 & 3, held that the accident occurred due to actionable negligence on the part of RW.1 (Driver of the bus). The Tribunal relying on the evidence of PW.6 and Exs.P26 to P30, held that the claimant has suffered 100% permanent physical disability and awarded compensation of Rs.18,50,000/- on different heads as per the table below:-
Sl. Particulars Compensation
No. Amount in Rs.
1 Pain and suffering 2,00,000/-
2 Medical expenses NIL
3 Loss of earning of father of
petitioner during the period of 50,000/-
treatment
4 Disability 6,00,000/-
5 Towards food, nourishment
and attendant charges 2,00,000/-
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MFA No. 10130/2018
6 Loss of marriage prospects 2,00,000/-
7 Loss of amenities 2,00,000/-
8 Future medical expenses 4,00,000/-
Total 18,50,000/-
9. Sri.Shivabhushan S. Hatti for Sri S.N.Hatti,
learned counsel for the appellant/claimant submits that the compensation awarded under the heads of disability/loss of future income, Future Medical Expenses, Pain and Suffering, Marriage Prospects etc., is on the lower side. In support of his submission, he relies on the following judgments:-
i) Master Ayush Vs. The Branch Manager, Reliance General Insurance Co. Ltd. and Another1
ii) Mohd. Sabeer Alias Shabir Hussain Vs. Regional Manager, U.P. State Road Transport Corporation2
10. Per contra, Smt. H.R. Renuka, learned counsel for the Respondent/KSRTC, justifies the impugned award on the ground that the claimant has not produced the proof for purchasing artificial limbs. She further submits that, as the victim was aged 12 years, she had no actual income.
Therefore, the compensation of Rs.6,00,000/- awarded by the 1 2022 LiveLaw (SC) 330 2 2022 SCC Online SC 1701 -6- MFA No. 10130/2018 Tribunal on the head of disability/loss of future income is in accordance with the judgment of Hon'ble Supreme Court in Master Mallikarjun Vs. Divisional Manager, National Insurance Co. Ltd.3 ANALYSIS
11. The Tribunal on accepting the evidence of the claimant that, the victim suffered amputation of both legs above the knee and the medical evidence, considered her disability at 100%. The respondent/KSRTC has not challenged the said finding. Therefore, the said finding has attained finality. As per the wound certificate, the claimant had suffered the following injuries:
i) Crushed injury of RP leg from thigh L 1/3 till ankle with crushed tissues, vessels, nerves and other injuries;
ii) crushed injury of LF leg from L1/3 of thigh to ankle with crushed tissues, vessels, nerves and other injuries;
iii) Contusion on RF forehead
12. The discharge summary-Ex.P8 coupled with
Doctor's evidence shows that the victim underwent marathon treatment and amputation of both legs above knee. There 3 2013 ACJ Page 2445 : 2013(3) KLJ 815. -7- MFA No. 10130/2018
was skin grafting and she underwent immeasurable sufferings in the course of treatment. She was treated as inpatient from 11.08.2013 to 02.09.2013 and again from 30.09.2013 to 04.10.2013. In the similar circumstances, the Hon'ble Supreme Court in Master Ayush's case referred to supra, considered awarding of compensation taking income of the injured at Rs.3,700/- p.m. by adding 40% of notional income by way of Future Prospects and applied 18 multiplier. Therefore, that latest judgment has to be followed.
13. The accident in the present case happened in the year 2013. The notional income of the injured for the said period considering the prevailing cost of living and wages has to be taken at Rs.8,000/- p.m. and 40% has to be superadded by way of Future Prospects, which comes to Rs.8,000/- + 3,200/- = Rs.11,200/-. By applying 18 multiplier, the compensation payable on the head of Loss of Future Earning comes to Rs.24,19,200/-.
14. Since the victim has lost both lower limbs above knee and having regard to period of her treatment, the compensation awarded on the head Pain and Suffering is on -8- MFA No. 10130/2018 the lower side. The just compensation payable on that head is Rs.3,00,000/-.
15. Due to loosing of her both limbs at the age of 12 years, the victim has suffered Loss of Amenities. The Tribunal should have awarded compensation on the head of Loss of Amenities at Rs.2,50,000/-.
16. Due to amputation of limbs of her both legs above knee, the claimant has lost Marriage Prospects. The Tribunal should have awarded Rs.3,00,000/- on the head of Loss of Marriage Prospects.
17. Since there was no proof of actual income of the parents of the claimant, the compensation awarded on the head of Loss of Earning of the parents of the victim during her laid-up period does not warrant interference.
18. As per the Doctor's evidence, the artificial limbs of the victim needs to be changed once in 10 years. In similar circumstances, in Mohd. Sabeer's case relied on by the learned counsel for the claimant, for the victim aged 37 years, the Hon'ble Supreme Court awarded compensation of -9- MFA No. 10130/2018 Rs.7,80,000/- towards Prosthetic limbs in future and for maintenance of the same. In this case, the claimant has not produced any record for having purchased the Prosthetic during her treatment period. As per the evidence of PW.7, the cost of Prosthetic Limbs is Rs.2.88 Lakhs and including maintenance charges, the same comes to Rs.3,00,000/-. Considering that and expecting the life span of victim at 70 years as held in Mohd. Sabeer's case (supra), she has to change the prosthesis six times. Therefore, the Tribunal should have awarded compensation of Rs.18,00,000/- , on the head of Future Medical Expenses.
19. Admittedly, the respondent/KSRTC has made good the medical expenses of Rs.5,81,000/- during the period of hospitalization and that was rightly deducted by the Tribunal while awarding compensation on the head of medical expenses.
20. The claimant was treated in Bengaluru. She hails from Nagamangala. Therefore, she had to travel for her treatment to Bengaluru and she needed attendants during that period. Rs.2,00,000/- is awarded on the head of
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MFA No. 10130/2018Attendant Charges, Diet and Nourishment, which does not warrant interference of this Court as it is just one. Therefore, the just compensation payable is as follows:-
Sl. Particulars Compensation
No. Amount in Rs.
1 Loss of future earning 24,19,200/-
2 Future Medical expenses 18,00,000/-
3 Pain and suffering 3,00,000/-
4 Loss of amenities 2,50,000/-
5 Loss of marriage prospects 3,00,000/-
6 Loss of earning of parent of
petitioner during her laid - 50,000/-
up period
6 Food, nourishment and 2,00,000/-
attendant & conveyance
charges
Total 53,19,200/-
Less paid by KSRTC *
Enhanced Compensation **53,19,200/-
21. Since the compensation of Rs.18,00,000/- is awarded on the head of Future Medical Expenses, that shall not carry any interest. The compensation awarded on other heads shall carry interest at 6% p.a. The impugned award needs to be modified accordingly. Hence, the following:
ORDER
(i) The appeal is partly allowed.
* Deleted Vide Court order dt.09-06-2023 ** Corrected Vide Court order dt.09.06.2023
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MFA No. 10130/2018
(ii) The impugned award is modified as follows:-
a) The appellant/claimant is entitled to compensation of Rs.53,19,200/-. *
b) The compensation shall carry interest at 6% p.a., from the date of petition till its realization, excluding amount of Rs.18,00,000/- awarded under the head of Future Medical Expenses.
c) The respondent shall deposit entire compensation amount with accrued interest before the Tribunal, on adjusting the amount already deposited, if any, within Twelve Weeks from the date of this judgment.
d) Since the appellant/claimant has attained the age of majority, the Tribunal shall release 25% of total compensation amount to her and remaining 75% shall be invested in her name in any Nationalised Bank of her choice, for a period of five years.
Sd/-
JUDGE Sd/-
JUDGE KGR* List No.: 1 Sl No.: 48 * Corrected Vide Court order dt.09.06.2023