Partly allowed

Naveen S/O Kondayya v. H Yellappa Bongale

Karnataka HC13 Jul 2022MFA/21656/2010

Case brief

AI extract

What is this about?

ThisMiscellaneous First Appeal sought enhancement of compensation awarded for a minor'smotor vehicle accident resulting in above-knee amputation. The single judgeenhanced the compensation to Rs.20,16,000/- by assessing 100% functional disability and adding amounts for loss of marriage prospects and future happiness.

What did the court decide?

Compensation enhanced from Rs.4,40,000/- to Rs.20,16,000/- with interest at 6% per annum.

Naveen S/O Kondayya Vs H Yellappa Bongale — Specific Performance | Karnataka HC (2022)

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MFA No. 21656 of 2010

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 13^TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE P.KRISHNA BHAT

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MISC. FIRST APPEAL NO. 21656 OF 2010 (MV-I)

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BETWEEN:

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NAVEEN S/O KONDAYYA AGE 21 YEARS, OCC:COOLIER/O ANAVATTI, NOW AT, UMASHANKAR NAGARRANEBENNUR

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…APPELLANT

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(BY SRI.NAVEEN B CHATRAD, ADVOCATE)

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AND:

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H YELLAPPA BONGALE S/O HANUMANTAPA AGE MAJOR OCC:OWNER OF TRACTOR TRAILOR UNIT BEARING NO.KA 15/T0861TRAILER KA 15/T-971R/O MAIN ROAD

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ANAVATTITQ:SORAB

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Digitally signed by JAGADISH T R

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Location: HIGH COURT OF KARNATAKA, DHARWAD Date: 2022.07.14 10:17:30 +0530

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THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD L.E.A.COMPLEXDHARWAD

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…RESPONDENTS

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(BY SRI. S.C. JAINAR, ADV. FOR R2) (R1-SERVED)

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THIS MFA FILED U/S 173(1) OF MV ACT 1988, AGAINST THE JUDGMENT AND AWARD 19-02-2009 PASSED IN MVC NO.555/2003 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & MEMBER, ADDL. MACT, RANEBENNUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING.

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MFA No. 21656 of 2010

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JUDGMENT

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This appeal is at the instance of the claimant seeking enhancement of compensation awarded under judgment and award dated 19.02.2009 in MVC No.555/2003 by the learned Civil Judge (Sr.Dn.) & Addl. MACT, Ranebennur (for short, ‘Tribunal’).

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2. Brief facts are that on 12.01.2003 at about 10.30 a.m., while the claimant, who is a minor, was proceeding on his bicycle near Anavatti Bus stand, TractorTrailer bearing registration No.KA-15/T-861 & 971 driven by its driver in a rash and negligent manner and in high speed came and dashed against the bicycle of the claimant resulting in serious injuries to him.

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3. Before the learned Tribunal, owner of the Tractor-Trailer in question remained exparte. The Insurance Company contested the proceedings by filing its statement of objections.

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MFA No. 21656 of 2010

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4. During trial, mother of the claimant was

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examined as PW1 and Medical Expert was examined as PW2 and Exs.P1 to P114 were marked. The respondents did not examine any witness but Policy of Insurance was marked as Ex.R1.

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5. Learned Tribunal upon hearing the learned counsel on both sides and perusing the records, allowed the claim petition in part awarding a compensation of Rs.4,40,000/- with interest thereon at 6% per annum from the date of petition till date of payment.

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6. Learned counsel appearing for the

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appellant/claimant submits that the claimant having suffered amputation of right leg above the knee on account of the accident, will not be in a position to engage himself in gainful employment and he being a semi literate minor, disability caused to him should be assessed in a realistic manner and if so viewed, he has suffered 100% disability in terms of his earning capacity and therefore,

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MFA No. 21656 of 2010

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the learned Tribunal ought to have computed compensation based on the said touch stone and compensation awarded is on the lower side and therefore, appeal is required to be allowed.

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7. Sri. S.C. Jainar, learned counsel appearing for the respondent/Insurance Company, per contra, vehemently contends that the claimant was a minor and since he has suffered amputation of right leg above the knee, he is not rendered totally disfunctional for all purposes and he can engage himself in some useful activities and therefore, compensation awarded by the learned Tribunal by taking his physical disability at 40% is just and reasonable which does not call for any interference. He therefore, submits there is no merit in the appeal and it is liable to be dismissed.

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8. I have given my anxious consideration to the submissions made on both sides and I have also perused the records carefully.

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MFA No. 21656 of 2010

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9. There is no dispute insofar as the fact that the

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claimant who was a minor at the time of the accident had suffered amputation of right leg above the knee in the motor vehicle accident. As a matter of fact, Ex.P7 is Disability Certificate issued by Surgeon, Mc.Gann Hospital, Shimoga, where the claimant had undergone treatment. It clearly mentions that there was above knee amputation of right leg of the claimant. Medical Officer has assessed the disability to the extent of 65% to 70% to the whole body.

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10. In a similar case, this Court in MFA No.25028/2010¹ has held that in such cases, it is unjust and harsh to hold that the claimant would be in a position to engage in some activities and earn his/her livelihood albeit to a lesser extent than a normal person. Once it is not disputed that the accident has resulted in minor claimant suffering amputation of right leg above the knee, it follows that even for his mobility he has to rely on

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1 Ms. Priyanka Pradeep Gavade Vs. Divisional Manager, New India Assurance Co. Ltd., disposed off on 28.06.2022

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MFA No. 21656 of 2010

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crutches. For such a person, there will be little or no demand in the labour market so as to enable him to earn his livelihood when the fact of life is that there are large number of youth unemployed in this country looking for any kind of employment. Therefore, this Court in the aforesaid case by placing reliance on a decision of the Hon’ble Apex Court in the case of Kajal v. Jagdish Chand and others² and Master Ayush v. Branch Manager,

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Reliance General Insurance Co. Ltd., and another³ , has held that the functional disability suffered by the claimant should be taken at 100%. Accordingly, in this case also, the functional disability of the claimant is required to be assessed at 100%.

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11. Insofar as notional income of the claimant is concerned, since he is a minor, again following the decision of the Hon’ble Apex Court in Kajal (supra), notional income of the claimant has to be taken at Rs.4,846/- per month. 40% of the said income is required

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2 (2020) 4 SCC 413

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3 2022 SCC online SC 375

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MFA No. 21656 of 2010

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to be added towards loss of future prospects by following the decision of the Hon’ble Apex Court in National Insurance Company Limited Vs . Pranay Sethi and Others⁴ , Jagadish Vs. Mohan & Others⁵ , Sandeep Khanuja Vs. Atul Dande⁶ , Erudhaya Priya Vs. State Express Transport Corporation Limited⁷ and also decision of Division Bench of this Court in New India Assurance Company Ltd. Vs. Abdul M Tahasildar⁸ . Appropriate multiplier applicable to his age is ‘18’ (claimant was aged 14 years at the time of the accident). Therefore, compensation towards loss of earning is required to be recomputed as follows:

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Rs.4,846 + 40% x 12 x 18 = Rs.14,65,430/- which is

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rounded off to Rs.14,66,000/-

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12. Under the head of pain and suffering, Rs.1,00,000/- is required to be awarded. Learned Tribunal has awarded Rs.30,000/- towards medical

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4 AIR 2017 SC 5157

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5 (2018) 4 SCC 571

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6 (2017) 3 SCC 351

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7 2020 SCC Online SC 601

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8 MFA 103807/2016 & MFA 103835/2016, dated 27.05.2022

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MFA No. 21656 of 2010

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expensed and it is maintained. Learned Tribunal has awarded a sum of Rs.10,000/- under the head of attendant charges and it is maintained. Another sum of Rs.10,000/- is required to be awarded towards conveyance, food & nourishment charges. Under the head of loss of amenities and future happiness, Rs.2,00,000/- is required to be awarded. Further, on account of severe disability, his marriage prospects is definitely affected and therefore, a sum of Rs.2,00,000/- is awarded towards loss of marriage prospects. Thus, in all, the claimant shall be entitled to compensation under the following heads:

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HEADS	AMOUNT (in Rs.)
Towards pain and suffering	1,00,000/-
Towards Medical expenses	30,000/-
Attendant charges	10,000/-
Conveyance & nourishment expenses	10,000/-
Loss of future earning capacity due to permanent disability	14,66,000/-
Loss of amenities and future happiness	2,00,000/-
Loss of marriage prospects	2,00,000/-
Total	20,16,000/-

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MFA No. 21656 of 2010

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13. Thus, the claimant shall be entitled to total compensation of Rs.20,16,000/- as against

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Rs.4,40,000/- awarded by the learned Tribunal.

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14. Accordingly, the appeal is allowed in part and the compensation amount is enhanced by

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Rs.15,76,000/- which shall carry interest at the rate of 6% per annum from the date of petition till the date of payment.

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15. The Insurance Company shall deposit the differential amount with interest thereon before the learned Tribunal within a period of six weeks from today.

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16. Registry to send back the records forthwith. No order as to costs.

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Sd/JUDGE

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JTR

Naveen S/O Kondayya v. H Yellappa Bongale

Case brief

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Naveen S/O Kondayya v. H Yellappa Bongale

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