Partly allowed

The Managing Director v. Kumari Varshitha P

Karnataka HC21 Oct 2022MFA/445/2016

Case brief

AI extract

What is this about?

The High Court allowed in part the appeal filed by KSRTC and dismissed the appeal filed by the minor claimant against the quantum of compensation awarded by the Motor Accidents Claims Tribunal in an MVA case involving a femur fracture. The compensation was reduced to account for an overaward in future medical expenses while upholding the pain and suffering component.

What did the court decide?

The appeal by KSRTC allowed in part; compensation reduced from Rs.4,24,178 to Rs.4,04,178 with interest at 6% p.a.; appeal by claimant dismissed; KSRTC directed to pay within six weeks.

The Managing Director Vs Kumari Varshitha P — Writ and Judicial Review | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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M.F.A.NO.2617/2016 (MV) C/W.

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M.F.A.NO.445/2016 (MV)

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IN M.F.A.NO.2617/2016:

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BETWEEN:

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KUM. VARSHITHA P D/O. PRAKASH N, AGED ABOUT 16 YEARS, R/AT NO.12/3, K.T. HALLI, KASTURIBA NAGAR ASHWATHAKATTE ROAD, MYSORE ROAD, BANGALORE, (SINCE APPELLANT IS MINOR REP. BY MOTHER AND NATURAL GUARDIAN PREVIOUS ADDRESS:NO.97 BANDEGUDISILU, CHAMARAJPET BANGALORE-26. …APPELLANT (BY SRI SHRIPAD V. SHASTRI, ADVOCATE)

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AND:

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THE MANAGING DIRECTOR K.S.R.T.C., CENTRAL OFFICE, K.H. ROAD, DOUBLE ROAD, SHANTHI NAGAR BANGALORE-27. ... RESPONDENT (BY SRI G. LAKSHMEESH RAO, ADVOCATE)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 07.08.2015 PASSED IN MVC NO.4198/2014 ON THE FILE OF THE 1^ST ADDITIONAL SMALL CAUSES JUDGE AND 27^TH ACMM, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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IN M.F.A.NO.445/2016:

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BETWEEN:

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THE MANAGING DIRECTOR K.S.R.T.C., CENTRAL OFFICES, K.H. ROAD/DOUBLE ROAD, SHANTHINAGAR, BENGALURU-27. ... APPELLANT

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(BY SRI G. LAKSHMEESH RAO, ADVOCATE)

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AND:

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KUMARI VARSHITHA P. D/O. SRI PRAKASH N, AGED ABOUT 16 YEARS, R/AT 12/3, K.T. HALLI, KASTURIBA NAGAR, ASHWATHA KATTE ROAD, MYSORE ROAD, BENGALURU, REPRESENTED BY HER NATURAL GUARDIAN MOTHER SMT. HEMAVATHI.

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... RESPONDENT

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(BY SRI SHRIPAD V. SHASTRI, ADVOCATE)

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THIS M.F.A IS FILED UNDER SECTION 173(1) OF M.V. ACT AGAINST THE JUDGMENT AND AWARD DATED 07.08.2015 PASSED IN MVC NO.4198/2014 ON THE FILE OF THE 1^ST ADDITIONAL SMALL CAUSES JUDGE & 27^TH ACMM, MACT, BENGALURU, AWARDING THE COMPENSATION OF RS.4,24,178/-

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WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL THE DEPOSIT.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Though these matters are listed for admission today, with the consent of both the learned counsel, it is taken up for final disposal.

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Heard the learned counsel appearing for the appellant and learned counsel appearing for the respondent.

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These appeals are filed by the claimant as well as KSRTC challenging the judgment and award dated 07.08.2015 passed in M.V.C.No.4198/2014 on the file of the MACT, Bengaluru (‘the Tribunal’ for short) questioning the quantum of compensation.

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The parties are referred to as per their original rankings before the Tribunal to avoid confusion and for the convenience of the Court.

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The factual matrix of the case of the claimant before

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the Tribunal is that on 16.05.2014, she met with an accident and

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sustained fracture of femur. In support of her claim and nature of injuries, examined herself as P.W.1 and the Doctor as P.W.2, who assessed the disability at 28.17% in respect of particular limb and the Tribunal has taken the disability at 14.09% i.e, 50% of the disability as assessed by the Doctor and awarded compensation of Rs.4,24,178/- relying upon the judgment of the Apex Court in MASTER MALLIKARJUN VS. DIVISIONAL MANAGER, THE NATIONAL INSURANCE COMPANY LIMITED AND ANOTHER reported in ILR 2013 KAR 4891 . Hence, the present appeals are filed by the KSRTC and the claimant.

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The learned counsel appearing for the KSRTC in his

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argument vehemently contend that the Tribunal ought to have taken 1/3^rd disability instead of 50% and committed an error in taking the disability at 14.09%. The counsel also would vehemently contend that the injured was in the hospital for a period of 7 days and the disability would come to 9% and not 14.09% as taken by the Tribunal and the compensation awarded

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by the Tribunal is exorbitant and it requires interference of this Court.

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Per contra, learned counsel appearing for the claimant would contend that the claimant is aged about 14 years and as a result of fracture of femur, she has suffered permanent disability and 50% of the disability taken by the Tribunal as assessed by the Doctor is not erroneous and taken note of the future of the injured. It is also contended that the Tribunal has awarded lesser compensation and not awarded any compensation towards future medical expenses as deposed by the Doctor, who has been examined as P.W.2 and also not awarded any compensation towards loss of income of parents, when the parents have taken care of the minor. Hence, it requires interference of this Court.

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Having heard the respective counsel and also on perusal of the material available on record, the question before this Court is with regard to quantum of compensation. The Tribunal awarded a sum of Rs.89,178/- towards medical expenses based on the documentary evidence and the same

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does not require any interference. When the Tribunal has awarded a sum of Rs.89,178/-, the question of again awarding a sum of Rs.10,000/- towards medical and incidental expenses does not arise and the Tribunal has committed an error in awarding additional compensation of Rs.10,000/- and the same is deducted.

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The Tribunal awarded a sum of Rs.3,00,000/towards pain and suffering and the Doctor assessed the disability at 28.17% and the Tribunal has taken the disability at 14%. The Apex Court in MASTER MALLIKARJUN’S case has held that in

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the case of disability above 10% upto 30%, the compensation of Rs.3,00,000/- is to be awarded. Hence, I do not find any ground

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to interfere with the same. The very argument of the KSRTC is that 50% of the disability taken by the Tribunal as assessed by the Doctor is on the higher side and ought to have taken 1/3^rd . Having taken note of the nature of injury i.e., fracture of femur and femur is the main bone in respect of lower limb, the argument of the learned counsel appearing for the appellantKSRTC cannot be accepted.

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The Tribunal awarded a sum of Rs.25,000/- towards

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future medical expenses and the fracture has united and no material is placed before the Court that fracture is malunited and it is only a removal of implant. Having taken note of the said fact into consideration, awarding Rs.25,000/- for removal of implant is on the higher side and the same is reduced to Rs.15,000/- as against Rs.25,000/- awarded by the Tribunal.

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The other contention of the learned counsel

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appearing for the claimant that compensation awarded is very meager cannot be accepted. Having taken note of the fact that the Tribunal has taken 14% disability and awarded a sum of Rs.3,00,000/- towards pain and suffering, it does not require any interference to award additional compensation as contended by the learned counsel for the claimant.

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In view of the discussions made above, I pass the following:

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ORDER

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(i) The appeal filed by the claimant in M.F.A.No.2617/2016 is dismissed.

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(ii) The appeal filed by the KSRTC in M.F.A.No.445/2016 is allowed in part.

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(iii) The impugned judgment and award of the Tribunal dated 07.08.2015 passed in M.V.C.No.4198/2014 is modified reducing the compensation to Rs.4,04,178/- as against Rs.4,24,178/- with interest at 6% per annum from the date of petition till deposit.

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(iv) The KSRTC is directed to pay the compensation amount with interest within six weeks from today.

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(v) The amount in deposit, if any, be transmitted to the concerned Tribunal forthwith.

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(vi) The Registry is directed to transmit the records to the concerned Tribunal, forthwith.

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Sd/JUDGE

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The Managing Director v. Kumari Varshitha P

Case brief

What is this about?

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The Managing Director v. Kumari Varshitha P

Case brief

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