Partly allowed

Master Chalapathy S/O. Late Venkateshappa v. Sri H N Manjunatha

Karnataka HC6 Jun 2012MFA/8287/2008

Case brief

AI extract

What is this about?

This first appeal challenges the quantum of compensation awarded by the Tribunal to a minor injured in a road traffic accident. The court enhanced compensation for pain, suffering, and amenities while maintaining the quantum for future loss of earning.

What did the court decide?

Compensation enhanced to Rs. 1,35,750/-. Enhanced amount to be kept in fixed deposit for minor. Interest awarded.

Master Chalapathy S/O. Late Venkateshappa… — Civil Procedure and Limitation | Karnataka HC (2012)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 6TH DAY OF JUNE 2012

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BEFORE

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THE HON’BLE MR.JUSTICE K.N.KESHAVANARAYANA

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MFA.No.8287 OF 2008 (MV)

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BETWEEN:

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Master Chalapathy, S/o Late Venkateshappa, Aged about 11 years, Residing at Sangondanahalli Village, Arahalli Post, Kolar Taluk & District. Since Minor Represented by His mother-cum-Natural Guardian. Smt.Nagarathnamma, W/o Late Venkateshappa, Aged about 29 years. ….Appellant

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[By Smt.Suguna.R.Reddy, Advocate]

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AND:

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Sri.H.N.Manjunatha, S/o H.K.Narayanaswamy, Aged major, Residing at Hanumantha Pura Village, Sidlaghatta Taluk, Kolar District.

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The Branch Manager, M/s. United India Insurance Co.Ltd., Branch Office, 1st Floor, Bagalur Mansion, Kolar –563 101. ...Respondents

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[By Sri.M.U.Poonacha, Advocate for R-2; Notice to R-1 is dispensed with vide order dated 22.7.2010]

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This Miscellaneous First Appeal is filed under Section 173 (1) of MV Act, against the judgment and award dated 7.3.2008 passed in MVC No.40/2007 on the file of the Civil Judge (Sr.Dn), & CJM,, Kolar, partly allowing the claim petition for compensation and seeking enhancement for compensation.

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This Appeal coming for hearing on this day, the court delivered the following:

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J U D G M E N T

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This appeal by the appellant who is a minor

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represented by his mother and natural guardian is for enhancement of compensation awarded by the Tribunal.

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The appellant represented by his guardian filed

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claim petition under Section 166 of Motor Vehicles Act seeking compensation of Rs.10 lakhs for the injuries

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sustained by him in a road traffic accident that occurred on 22.1.2006 at 1.00 p.m. near Sangondahalli Village Gate on Kolar-Chickballapur Road. According to the claimant, as a result of the accident he sustained fracture of right inter trochanteric femur and fracture of both bones of the right leg apart from other injuries. He was treated as inpatient in R.L.Jalappa Hospital, Kolar for more than 10 days and in spite of the treatment, he has suffered permanent disability on account of malunion of the fractures and this has come in the way of his enjoyment of future life and also affecting future earning capacity. The claim petition was filed against the owner and insurer of the offending vehicle. Though both the owner and the insurer of the offending vehicle contested the petition, after parties led evidence, the Tribunal by the judgment under appeal, answered issue regarding actionable negligence in the affirmative in favour of the claimant holding that the claimant

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sustained grievous injuries as a result of rash and negligent driving of the offending vehicle by its rider. Taking into consideration, the oral and documentary

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evidence, the Tribunal quantified the compensation payable under different heads as under:

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Pain and suffering Rs. 30,000/2. Future loss of earning Rs. 33,750/3. Treatment, medical expenses etc. Rs. 5,000/4. Food, nourishment, conveyance etc. Rs. 2,000/5. Attendant charges Rs. 10,000/Total Rs. 85,750/-

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Thus the Tribunal awarded total compensation of Rs.87,750/- and directed the insurer of the offending vehicle to pay the said amount with interest at 6% per annum from the date of the petition till the date of payment. Dissatisfied with the quantum of compensation, the claimant is in appeal before this Court.

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I have heard the learned counsel appearing on

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both sides. Perused the records secured from the Tribunal.

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The finding of the Tribunal on the issue regarding actionable negligence has not been assailed by the respondent. Therefore, the said finding has become final. In this view of the matter, the only question that arises for consideration of this Court is,

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“Whether the appellant / claimant is entitled for enhancement of compensation? If so, to what extent?”

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The contention of the learned counsel for the appellant is that the compensation awarded by the Tribunal under different heads is too low and deserves to be enhanced.

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On the other hand, the learned counsel for the respondent sought to justify the award passed by the Tribunal contending that the compensation awarded is just and proper and does not call for enhancement. The

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oral and documentary evidence placed by the claimant would clearly establish that as a result of the accident, the claimant sustained fracture of right inter trochanteric femur and also fracture of both bones of the right leg at the junction of its mid 1/3rd and lower 1/3rd. The evidence further establishes that immediately after the accident, the claimant was taken to R.L.Jalappa Hospital, Kolar, he was admitted as inpatient and he was discharged from the Hospital on 29.11.2006 against medical advice. During this period, he was treated conservatively. It appears though the Doctors in the Hospital advised surgery, the guardian of the claimant has not consented for such surgery and it was under those circumstances, the claimant appears to have been discharged from the Hospital against medical advice. The Evidence of P.W.2 further establishes that when he examined the claimant nearly about 2 years after the accident viz., on 18.2.2008, for

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assessment of permanent disability, on clinical and radiological examination, he noticed the following:

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Recurvatum deformity of the right leg;

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Quadriceps wasting present;

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Shortening of right leg by 2 cms;

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X-ray of Pelvis as well as both hips showed mal-union right inter trochanteric and malunion of right middle 3rd Tibia and Fibula.

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He has assessed the disability of the claimant at 38% in relation to the right lower limb and 19% as against the whole body. The claimant was admittedly aged about 10 years as on the date of the accident.

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The evidence of PW.2 with regard to the

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permanent disability suffered by the claimant is not seriously challenged. The perusal of the photograph of the claimant produced and marked as Ex.P.12 would indicate the disability suffered by the claimant. Taking into consideration the nature of the injuries suffered by

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the claimant and the resultant permanent disability, in my opinion, quantification of the compensation towards pain and sufferings, loss of amenities and incidental expenses are on the lower side. Quantification of the compensation towards future loss of earning by assessing functional disability at 15% and adopting notional income of Rs.15,000/- per annum as per II Schedule is just and proper and it does not call for upward enhancement. Taking into consideration the evidence on record and the sufferings undergone by the claimant, interest of justice would be met by enhancing the compensation payable under the head of pain and sufferings to Rs.40,000/- as against Rs.30,000/-, and under the head of loss of amenities to Rs.40,000/- as against Rs.10,000/-. The Tribunal has awarded Rs.5,000/- towards treatment and medical expenses, Rs.5,000/- towards food, nourishment and conveyance and Rs.2,000/- towards attendant charges i.e., totally

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Rs.12,000/- is awarded under incidental expenses. In my opinion, the compensation under these heads deserves to be enhanced to Rs.22,000/- as against Rs.12,000/-. Thus the claimant is entitled for enhanced compensation of Rs.50,000/-. To this extent the appeal deserves to be allowed.

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Accordingly, the appeal is allowed-in-part.

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(i) The compensation payable to the appellant / claimant is quantified at Rs.1,35,750/- as against Rs.85,750/awarded by the Tribunal. The enhanced compensation of Rs.50,000/- shall carry interest at 6% per annum from the date of the petition till the date of payment.

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(ii) Respondent No.2-insurer is directed to deposit the enhanced compensation with interest, within six weeks from today.

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(iii) As the appellant / claimant is still a minor, the enhanced compensation of

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Rs.50,000/- is directed to be kept in Fixed Deposit in any Nationalised Bank till the claimant attaining majority, while the accrued interest thereon is ordered to be released to the guardian of the minor appellant.

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SD/JUDGE

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RS/*

Master Chalapathy S/O. Late Venkateshappa v. Sri H N Manjunatha

Case brief

What is this about?

What did the court decide?

Master Chalapathy S/O. Late Venkateshappa v. Sri H N Manjunatha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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