Partly allowed

Nithya Sri @ Nithya Sri K. G. v. Sri. Basavaraju K N

Karnataka HC4 Nov 2022MFA/8572/2018

Case brief

AI extract

What is this about?

The High Court allowed the minority minor's appeal against the Small Causes Court award in a motor vehicle accident case caused by a 10-year-old pedestrian. The Court held the Tribunal erred in applying a 50% disability rate and a fixed compensation. Applying a multiplier of 18 and a notional income of Rs.10,000/month, the Court enhanced the disability and future loss of earnings compensation, red

What did the court decide?

Claim dismissed to the extent of the original award; appeal allowed in part by enhancing compensation by Rs. 9,21,000/- along with interest.

Nithya Sri @ Nithya Sri K. G. Vs Sri. Basavaraju K N — Motor Accident Claims | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF NOVEMBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE K.SOMASHEKAR

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AND

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THE HON’BLE MR. JUSTICE C.M.JOSHI

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M.F.A. No.8572 OF 2018 (MV-I)

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BETWEEN:

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NITHYA SRI @ NITHYA SRI K.G D/O GOPALAKRISHNA NOW AGED ABOUT 11 YEARS SINCE MINOR REPRESENTED BY NATURAL GUARDIAN/MOTHER SMT. ANUSUYA W/O GOPALAKRISHNA AGED ABOUT 32 YEARS

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BOTH ARE RESIDING AT KADANURU PALYA VILLAGE MADHURE HOBLI DODDABALLAPURA TALUK BENGALURU DISTRICT.

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...APPELLANT

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(BY SRI GOPAL KRISHNA. N, ADVOCATE)

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AND:

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SRI. BASAVARAJU K.N S/O LINGAPPA MAJOR IN AGE RESIDING AT NO.39 KARIKALLUPALYA NELAMANGALA TALUK BENGALURU RURAL DISTRICT-562 123.

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MAGMA HD GENERAL

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INSURANCE COMPANY LTD.,

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REGIONAL OFFICE NO.40 2^ND LANE, CKC GARDEN NEAR LALBAGH BANGALORE -560 027 REP: BY ITS MANAGER. …RESPONDENTS

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(BY SRI B. PRADEEP, ADV, FOR R.2 NOTICE TO R1 IS DISPENSED WITH V/O DTD.14.08.2019)

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THIS M.F.A. IS FILED UNDER SECTION 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 05.06.2018 PASSED IN MVC NO.3945/2017 ON THE FILE III ADDL. JUDGE AND MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU (SCCH-18), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS M.F.A. COMING ON FOR HEARING, THIS DAY C.M.JOSHI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the judgment and award dated 05.06.2018 passed in MVC No.3945/2017 by the learned III Additional Judge, Court of Small Causes and Member MACT, Bengaluru, the petitioner/ appellant being minor represented by her natural guardian/mother has approached this Court in appeal urging various grounds.

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The parties are referred to as per their ranks before the Tribunal for the sake of convenience.

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The brief facts are as below:

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On 13-05-2017, at about 2-30 P.M., the petitioner, who is a girl aged about 10 years, was a pedestrian on the extreme left side from Kanasavadi to Belavangala road and after carefully observing the vehicle movements was crossing the road near Doddahejjaji Village colony, Doddabelavangala hobli, Bengaluru District, at that time, the driver of the Bolero vehicle bearing Reg. No.KA-529085 drove the same in a rash and negligent manner came from Doddabelavangala road and dashed to the pedestrian (petitioner). Due to the said impact, petitioner fell down on the road and sustained grievous injuries. Immediately, the petitioner was shifted to M.S. Ramaiah Harsha hospital, Nelamangala, Bengaluru, wherein she has taken treatment as an inpatient and underwent surgery and amputation of right leg below knee was done. After discharge from the hospital and as per the advice of the doctor, she has taken follow-up treatment as an outpatient and till today, she is taking treatment as an outpatient. The contention of the petitioner that, her parents have spent an amount

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Rs.6,00,000/- towards her medical expenses and other incidental charges.

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It is the further case of the petitioner that, she was hale and healthy at the time of accident, aged about 10 years, studying in 5th standard. Further the contention of the petitioner is that, due to the accidental injuries, she has suffered lot and she has suffered permanent disablement and as such, she has not attended the school and as such, she has lost her bright educational career and lost her marriage prospects, since the petitioner is a handicapped person. Therefore, she has filed a claim petition through her natural guardian/mother claiming compensation of Rs.50,00,000/contending that respondent No.1 is the owner of the Bolero vehicle bearing registration No.KA-52-9085 and respondent No.2 is the insurer of the said vehicle and the policy was in force as on the date of accident and as the accident has occurred due to rash and negligent driving of the driver of the alleged Bolero vehicle and as such, both the respondents are

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jointly and severally liable to pay compensation to the petitioner.

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On issuance of notice by the Tribunal, respondent No.2 appeared through its counsel and filed objections and respondent No.2 has not appeared before the court and he was placed exparte.

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Respondent No.2 has opposed the claim petition contending that it is not maintainable either in law or on facts. However, it has admitted the issuance of policy to the alleged vehicle and the liability if any subject to the terms and conditions mentioned in the policy. Further it has contended that, the owner of the alleged vehicle and the concerned police have not complied the mandatory provision of Sec.134 (c) and 158 (6) of M.V. Act. Further it has denied the involvement of the alleged vehicle in the accident and occurrence of accident and contended that, the driver of the alleged vehicle was not having valid and effective driving licence to drive the vehicle as on the date of accident and as such, the owner of the vehicle has

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violated the policy conditions. Hence, it is not liable to pay compensation to the petitioner. It also denied the age and status of the petitioner and injuries sustained by her and medical expenses incurred by her parents and disablement suffered by her and contended that, the alleged accident has not occurred due to rash and negligent driving of the driver of the Bolero vehicle, on the other hand the alleged accident has occurred due to negligence on the part of the petitioner herself, as she was crossing the road without observing on coming vehicles and in a place not meant for pedestrian crossing. Further he contended that, the compensation claimed by the petitioner is excessive and exorbitant one and prayed to dismiss the petition.

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On the basis of the above pleadings, the Tribunal

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has framed the following Issues:

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Whether the petitioner proves that, she had sustained grievous injuries in an accident that was occurred due to rash and negligent driving of the driver of the Bolero vehicle bearing Reg. No.KA-52-9085 on 13-5-2017 at about 2-30 P.M., near Doddahejjaji Colony, DB Vangalal Hob/i on Kanasavadi-Belavangala Road, Doddabelangala Hobali, Bengaluru?

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Whether the petitioner is entitled for compensation as prayed? If so, at what rate and from whom?

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What order or award?

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To prove the case, the guardian of the

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petitioner/mother examined herself as PW1 and examined two witnesses as PWs 2 and 3 and got marked Exs.P1 to P23. Respondent No.2 did not adduce or produce any oral or documentary evidence.

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On hearing both the sides, the Tribunal answered the issue Nos.1 and 2 in the affirmative and partly in the affirmative and passed an award for a sum of

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Rs.11,26,000/- under different heads as under:

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Towards disablement	Rs. 4,00,000/-
Towards pain and suffering	Rs. 1,00,000/-
Towards loss of amenities	Rs. 75,000/-
Towards attendant, nourishment and conveyance charges	Rs. 20,000/-
Towards medical expenses	Rs. 1,91,000/-
Towards loss of income of parents of petitioner during laid up period and rest period	Rs. 40,000/-
Towards loss of marriage prospects (Disfigurement)	Rs. 50,000/-
Towards future medical expenses (Artificial leg)	Rs .2,50,000/-
Total	Rs.11,26,000/-

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Aggrieved by the said judgment and award, the petitioner is before this Court through her guardian/mother seeking enhancement .

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Respondent No.2- insurance company has appeared in pursuance to the notice issued by this Court and notice to respondent No.1 is dispensed with.

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Tribunal records have been secured and we have heard learned counsel appearing for the appellant and the learned counsel appearing for the Insurance Company.

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The fact that the petitioner had met with the accident involving the vehicle bearing Reg.No.KA.52.9085 on 13-5-2017 and that the said vehicle was insured with 2nd respondent is not in dispute. The 2nd respondent had disputed the negligence that may be attributable to the driver and the Tribunal has repelled the same. When a minor aged about 10 years is sighted on the road, the driver of any vehicle are bound to be double cautious and they have to slow down or stop the vehicle facilitating the

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movement of the children. There being no contra evidence on behalf of the owner of the vehicle or the insurance company, the Tribunal has rightly fastened the liability on the insurance company.

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The only contention raised by the appellant is regarding the quantum of the compensation. The evidence shows that the petitioner who is aged less than 10 years had suffered crush injury with type II compound Fracture lower 4th of the right leg, Type III C fracture dislocation at around taro metatarsal joint with complete displacement of tendon, skin and muscles, cut lacerated wound on the dorsum of the foot exposing fracture of the foot with loss of first metatarsal and with contamination. Therefore, it was found that 2/3rd of the right leg and tissues are absent due to the crush injury and the medical team was forced to amputate below knee. Therefore, the PW2-Dr.S. Ramachandra has stated that there is permanent physical disability of 60%.

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The Tribunal has taken the disability at 50% of the whole body and applying the principles laid down in the case of Master Mallikarjun Vs. Divisional Manager,

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The National Insurance Company Ltd. and another¹ awarded a sum of Rs.4,00,000/- under the head of disablement without considering the future loss of income etc.

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Now the learned counsel appearing for the appellant contended that the Division Bench of this Court

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in the case of Kumari Laxmi Vs. Sri Vivek Goel K and another² has awarded a sum of Rs.32,00,000/- as there was amputation of both the legs and observed that, Master Mallikarjun's case cannot be held to prescribe a universal principle.

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He further relied on the decision in the case of Kajal Vs. Jagadish Chand and others³ , wherein, the Apex Court had considered 100% disability of a 12 years old child and had awarded the compensation by holding

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1 (2014) 14 SCC 396

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2 MFA No.3645/2014 (MV)

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3 AIR 2020 SC 776

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the notional income as per the Minimum Wages Act and that the child would require two attendants life long and thereby, awarded a sum of Rs.62,27,000/- to the claimant.

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No-doubt, these decisions laid down that the case of Master Mallikarjun (supra) cannot be construed to be laying down the straight jacket formulae, the factual matrix involved in the said cases are not identical to the case on hand. In the case on hand, the petitioner is a girl child aged about 10 years, who has suffered amputation of right leg below knee. Therefore, the disability has to be calculated by applying the principle of the notional income and by applying a multiplier of '18'. It is relevant to note that the observations of the Apex Court in the case of Kajal Vs. Jagadish Chand and others ,(supra), accept the calculation of the compensation of the future attendant charges also and principle of multiplier. The maximum multiplier permissible is '18' and therefore, the same has been adopted by the Apex Court. In the case on hand also, we do not see any reason not to adopt the same

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principle in order to ameliorate the agony of the petitioner. The observations made by this Court in the case of Kumari Laxmi Vs. Sri Vivek Goel and another are equally applicable to the case on hand also.

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The notification of the Government of Karnataka dated 30-12-2017 bearing No.KE.31.LMW 2017 prescribes the minimum wages in respect of the employment not covered under any of the schedule employments for zone No.4 at Rs.10,010/- per month. The said wage covers helpers, loader and unloader, cleaner hamalies, Mazdoor, Autorickshaw drivers. Therefore, the notional income of the petitioner is taken at Rs.10,000/- per month by anticipating that she might have got employment in any of the above mentioned trades. Hence, the future loss of income is calculated as: Rs.10,000/- x 12 x 18 x 60%= 12,96,000/-.

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The Tribunal has considered the compensation under the head of disablement and also under the head of loss of amenities in life. The compensation under the head

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of disablement is nothing but the future loss of the income of the petitioner on account of her disability attributable to the amputation of the right leg below knee. Therefore, instead of Rs.4,00,000/- as awarded by the Tribunal, there shall be an amount of Rs.12,96,000/-.

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Sofar as the loss of amenities are concerned, the Tribunal has granted a sum of Rs.75,000/- under this head. It is relevant to note that the petitioner is aged 10 years, studying in 5th standard and she has to live with her amputated leg for the rest of her life. Apart from the physical discomforts, the social status of the petitioner is also to be affected by the disability. Therefore, in the considered opinion of this Court, it would be proper to award a sum of Rs.1,00,000/- under the head of loss of amenities in life.

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The Tribunal has considered adequate compensation under the remaining head and we do not intend to interfere in the same. Thus, the petitioner is entitled to modified compensation as under:

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Towards loss of future earnings	Rs.12,96,000/-
Towards pain and suffering	Rs. 1,00,000/-
Towards loss of amenities	Rs. 1,00,000/-
Towards attendant, nourishment and conveyance charges	Rs. 20,000/-
Towards medical expenses	Rs. 1,91,000/-
Towards loss of income of parents of petitioner during laid up period and rest period	Rs. 40,000/-
Towards loss of marriage prospects (Disfigurement)	Rs. 50,000/-
Towards future medical expenses	Rs. 2,50,000/-
(Artificial leg)
Total	Rs. 20,47,000/-
Less: awarded by Tribunal	Rs. 11,26,000/-
Enhancement would be	Rs. 9,21,000/-

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Thus, we propose to enhance total compensation by a sum of Rs.9,21,000/- in addition to what has been granted by the Tribunal. Hence, we pass the following:

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ORDER

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(i) Appeal is allowed in part

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(ii) The impugned judgment and award

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dated 05.06.2018 passed in MVC No.3945/2017

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by the Tribunal, is modified by enhancing the compensation of Rs.9,21,000/- together with interest at 6% p.a. from the date of petition till the date of deposit.

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(iii) Insurance company is directed to deposit the compensation amount together with interest within a period of 4 weeks from the date of receipt of the copy of this order.

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iv) All other conditions regarding

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apportionment and deposit remain unaltered.

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Sd/JUDGE

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Sd/JUDGE

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tsn*

Nithya Sri @ Nithya Sri K. G. v. Sri. Basavaraju K N

Case brief

What is this about?

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Nithya Sri @ Nithya Sri K. G. v. Sri. Basavaraju K N

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