Partly allowed

Master Raghava v. Naik v Rahamatulla Khan

Karnataka HC5 Dec 2024MFA/2103/2015

Case brief

AI extract

What is this about?

Two miscellaneous first appeals were filed challenging the compensation quantum in a motor vehicle accident involving a minor child. The High Court found the Tribunal erred in assessing 70% disability when medical evidence showed 100%. The court enhanced compensation significantly based on Supreme Court precedents and allowed applications for additional medical evidence.

What did the court decide?

Award modified to Rs. 62,65,600/- with 6% interest; applications for additional evidence allowed; insurer ordered to deposit amount within six weeks.

Master Raghava v. Naik Vs Rahamatulla Khan — Insurance | Karnataka HC (2024)

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NC: 2024:KHC:50373-DB MFA No.2103/2015 C/W MFA No.1246/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF DECEMBER, 2024 PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO.2103/2015 (MV-I)

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C/W

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MISCELLANEOUS FIRST APPEAL NO.1246/2015 (MV-I)

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IN M.F.A. No.2103/2015:

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BETWEEN:

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MASTER RAGHAVA V. NAIK S/O VENKATRAMANA NAIK AGED ABOUT 13 YEARS SINCE THE APPELLANT IS IN NOT

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Digitally signed by K S RENUKAMBA Location: High Court of Karnataka

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SOUND MIND AND NOT GAINED CONSCIOUS DUE TO SEVERE HEAD INJURIES AND ALSO MINOR HE IS REPRESENTED BY HIS FATHER GUARDIAN VENKATRAMANA NAIK AGED ABOUT 42 YEARS S/O DAMODARA NAIK R/O KANDAVARA VILLAGE KUNDAPURA TALUK. … APPELLANT

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(BY SRI. NAGARAJA HEGDE, ADV.,)

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AND:

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RAHAMATULLA KHAN AGE MAJOR S/O AMEER KHAN R/O NO.1125, 7TH CROSS LABOUR COLONY MANDYA-571401.

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ROYAL SUNDARAM ALLIANZ INSURANCE CO. LTD., SUBRAMANYAM BUIDLING

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NC: 2024:KHC:50373-DB MFA No.2103/2015 C/W MFA No.1246/2015

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2ND FLOOR, CLUB HOUSE ROAD ANNASALAI, CHENNAI-400002 REP. BY ITS AUTHORISED OFFICER. … RESPONDENTS

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(BY SRI. RAVI S. SAMPRATHI, ADV., FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DATED 10.06.2015)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 31.10.2014 PASSED BY THE COURT OF ADDL. DISTRICT & SESSION'S JUDGE AND ADDL. MACT, UDUPI (SITTING AT KUNDAPURA) KUNDAPURA, IN MVC NO.64/2012 TO THE EXTENT OF DISALLOWED CLAIM AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION IN THE INTEREST OF JUSTICE.

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IN M.F.A. NO.1246/2015:

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BETWEEN:

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M/S. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD. SUBRAMANIAM BUILDING 2ND FLOOR, NO.1, CLUB HOUSE ROAD ANNA SALAI, CHENNAI 600 002 REPRESENTED BY MANAGER. … APPELLANT

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(BY SRI. RAVI S. SAMPRATHI, ADV.,)

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AND:

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MASTER. RAGHAVA V. NAIK S/O VENKATARAMANA NAIK AGED ABOUT 13 YEARS MINOR REPRESENTED BY HIS FATHER/NATURAL GUARDIAN VENKATARAMANA NAIK RESIDENT OF KADAVARA VILLAGE KUNDAPURA TALUK-576201.

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RAHAMATHULLA KHAN S/O AMEER KHAN MAJOR IN AGE RESIDING OF NO.1125, 7TH CROSS LABOUR COLONY, MANDYA-571401. … RESPONDENTS

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(BY SRI. NAGARAJA HEGDE, ADV., FOR R1

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R2 SERVED)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MV ACT, PRAYING TO CALL FOR RECORDS AND MODIFY THE JUDGMENT AND AWARD DATED 31.10.2014 ON THE FILE OF ADDITIONAL DISTRICT & SESSION'S JUDGE AND ADDITIONAL MACT, UDUPI (SITTING AT KUNDAPURA) KUNDAPURA IN MVC NO.64/2012, AND MODIFY THE AWARD AND GRANT JUST AND REASONABLE COMPENSATION, IN THE INTEREST OF JUSTICE AND EQUITY.

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THESE MISCELLANEOUS FIRST APPEALS, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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( PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL )

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These appeals arise out of the award in MVC.No.64/2012 passed by the Additional District & Sessions Judge and Additional MACT, Udupi (Sitting at Kundapura).

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The appellant in MFA.No.2103/2015 was the sole claimant. Respondent Nos.1 and 2 in the said case were respondent Nos.1 and 2 in MVC.No.64/2012 before the Tribunal. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the tribunal.

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On 03.09.2011 at 11:15 a.m., when claimant

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aged 10 years was walking near Nagur cross road of Kumta Taluk, it was alleged that Tempo Traveller bearing

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NC: 2024:KHC:50373-DB MFA No.2103/2015 C/W MFA No.1246/2015

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Reg.No.KA-11/A-2913 hit him from the hind side. In the accident, he suffered grievous injuries. At the relevant time, respondent Nos.1 and 2 were the registered owner and the insurer of tempo traveller No.KA-11/A-2913.

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Claimant represented through his father as

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guardian, filed MVC.No.64/2012 claiming compensation of Rs.91,00,000/- from the respondents contending that due to the injuries suffered in the accident he has suffered total permanent physical disability. He claimed that he was a brilliant student with vibrant future. Claimant had spent Rs.8,00,000/for medical expenses. He claimed that due to such accident he has lost his future and future earnings, therefore, respondents are liable to compensate the same.

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Respondent No.1 did not contest the petition. Respondent No.2 contested the petition denying the accident

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due to the actionable negligence on the part of the driver of tempo traveller bearing No. KA-11/A-2913, injuries suffered by the claimant, his age and its liability. Respondent No.2 further contended that the driver of the said vehicle was not holding valid and effective driving license as on the date of the

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accident, thereby there is breach of policy condition and it is not liable to pay the compensation.

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In support of his claim, the father of the claimant was examined as PW.1 and three more witnesses were examined as PWs.2 to 4. Claimant on commission got examined the doctors as CWs.1 and 2. On behalf of the claimant, Exs.P1 to P23 and Exs.C1 and C2 were marked. The respondents did not adduce any evidence.

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The Tribunal on hearing the parties by the impugned award held that the accident, consequential injuries and disability of the claimant occurred due to the actionable negligence on the part of the driver of the tempo traveller bearing No.KA-11/A-2913. The Tribunal further held that the insurer has failed to prove its defence that there was breach of policy condition. The Tribunal considered the permanent physical disability of the claimant at 70%, notionally assessed his income at Rs.7,000/- per month, added 50% to the same by way of future prospects, applied 18 multiplier and awarded compensation of Rs.15,87,600/- towards loss of future prospects. The Tribunal in all awarded compensation of

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Rs.22,97,600/- on different heads with interest at 8% per

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annum payable by respondent No.2/the insurer as follows:

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Sl. No.	Particulars	Amount of compensation (in Rs.)
1	Medical expenses	Rs. 3,60,000/-
2	Pain and sufferings	Rs. 50,000/-
3	Inconvenience caused to parents	Rs. 50,000/-
4	Conveyance and attendant charges	Rs. 25,000/-
5	Litigation cost	Rs. 25,000/-
6	Future medical expenses	Rs. 2,00,000/-
7	Loss of future prospects	Rs.15,87,600/-
	Total	Rs.22,97,600/-

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Both claimant and the insurer have filed the above appeals challenging the correctness of the quantum of compensation.

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Sri. Nagaraja Hegde, learned counsel for the claimant submits that the medical evidence shows that the claimant was totally disabled. The Tribunal should have considered the permanent physical disability at 100%. He further submits that the evidence on record shows that the claimant was admitted into the hospital several times and he was on continuous treatment. Therefore, compensation awarded on the head of medical expenses and future medical expenses is on the lower side. He submits that the

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compensation awarded on all other heads is on the lower side.

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Learned counsel for the claimant further submits that even after the impugned award the claimant is continuously on treatment and all his medical expenses incurred post award also has to be taken into consideration. Therefore, IA.Nos.1/2022 and 1/2023 are filed for production of additional evidence. Such evidence is requirement of the Court and that has to be allowed and compensation has to be re-assessed.

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Per contra, Ravi S Samprathi, learned counsel for the insurer submits that the doctor himself assessed disability at 95%. Therefore, permanent physical disability cannot be taken at 100%. He further submits, as the claimant was aged 10 years, he cannot be considered as earning member and multiplier method cannot be applied to him. He submits that compensation has to be awarded globally in terms of the judgment of the Supreme Court in Master Mallikarjun vs. Divisional Manager, National Insurance Company Ltd. &

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Another¹ 's case. Though the insurer has not filed objections to IA.Nos.1/2022 and 1/2023, the acceptance of additional evidence shall be strictly in accordance with Order XLI Rule 27

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1 (2014) 14 SCC 396

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of CPC. No acceptable explanation is forthcoming for nonproduction of the medical bills and receipts which were available prior to the impugned award. Other bills cannot be accepted without the examination of the persons who have issued that.

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On considering submissions of both side and on examining materials on record, the questions that arise for determination of the Court are:

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i. Whether compensation granted under the impugned award is just one?

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ii. Whether IA.Nos.1/2022 and 1/2023 for production of additional evidence deserve to be allowed?

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ANALYSIS

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Reg. Point Nos.1 & 2

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Since these two points overlap on each other, to avoid repetition, they are taken up together for consideration. The records show that both parties are not at dispute that claimant suffered injuries on account of negligence of the driver of the tempo traveller bearing No. KA-11/A-2913 who dashed against the claimant from his hind side on 03.09.2011 at 11:15 a.m., when claimant was walking near Nagur cross, Kumta

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NC: 2024:KHC:50373-DB MFA No.2103/2015 C/W MFA No.1246/2015

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Taluk. The age of the claimant is also not disputed. To prove his injuries and disability, claimant has examined Dr.Jasprith Singh Dil, the Neurosurgeon in Adarsha hospital, Udupi and Dr. Mohandas Shetty, the Orthopaedic surgeon of Adarsha hospital, Udupi as CWs1 and 2 respectively and relied on Ex.P5 - wound certificate, Exs.P10 to 12 and Ex.P20 - discharge summaries and Exs.C1 and C2 - disability certificate and medical file respectively. The evidence of the aforesaid witnesses and Ex.P5/the wound certificate show that the claimant was brought to Adarsha hospital on 03.09.2011, with the following injuries and was treated as follows:

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i) Closed head injury.

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ii) Severe Generalised Cerebral Oedema.

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iii) He was brought in a comatose condition.

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iv) G.C.S. - IV, an emergency operation was performed on him as a life saving measure.

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Exs.P10 to P12 and P20/the discharge summaries issued by Adarsha hospital show that the claimant was treated as inpatient in hospital during the following period:

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i. Ex.P10 - 03.09.2011 to 31.10.2011

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ii. Ex.P11 - 19.11.2011 to 30.11.2011 iii. Ex.P12 - 10.03.2012 to 22.03.2012

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iv. Ex.P20 - 03.12.2012 to 15.12.2012

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The above documents further show that he underwent brain surgery in the said hospital and he was in and out of the hospital intermittently.

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CW.1, the neurosurgeon stated that the victim had

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following injuries.

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i) Closed head injury.

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ii) Severe Generalised Cerebral Oedema.

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iii) Comatose condition.

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iv) Right femur bone fracture.

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He deposed that above said injuries were grievous in nature.

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He further deposed that he examined the claimant on 23.01.2013 and found the following problems:

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i. Patient was bed ridden

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ii. Left side Hemi parasis

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iii. Not able to answer questions

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iv. Not able to walk

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v. Sits with help of parents.

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He assessed permanent physical disability of the claimant at 95% to the whole body and speaks about issuing disability certificate at Ex.C1 accordingly. CW.1 further deposed that the

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NC: 2024:KHC:50373-DB MFA No.2103/2015 C/W MFA No.1246/2015

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claimant requires his parents for day to day activities like cleaning, feeding, dressing, attending his toilet needs etc., and it is not possible for him to continue the education in normal school. His head was disfigured.

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CW.2, the orthopaedic surgeon of Adarsha hospital deposed that he treated the claimant for fracture of right femur bone, which was grievous injury. He conducted surgery on the claimant for correction of the same and there was shortening with over riding of the fragments resulting in severe shortening of leg about 4 inches. He also deposed that the claimant needs corrective surgery to align the limb properly, that may entail cost of Rs.1,50,000/- in future. The above evidence of CWs.1 and 2 and other medical evidence show that the claimant was totally in vegetative state. He had total 100% functional disability. The Tribunal had no justification to consider the permanent physical disability of the claimant at 70%, contrary to the medical evidence. The above circumstances show that the claimant has suffered 100% permanent physical and functional disability.

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The accident occurred in the year 2011. The victim was aged 10 years at the time of the accident and suffered

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NC: 2024:KHC:50373-DB MFA No.2103/2015 C/W MFA No.1246/2015

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100% disability. In the similar circumstances, the Hon'ble Supreme Court in the judgments in Kajal v. Jagdish Chand and

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Others² and Master Ayush v. Branch Manager, Reliance General Insurance Company Limited and Another³ taking notional income and applying multiplier system assessed the income of the minor victim. Therefore, those subsequent judgments have to be followed, in the present case, the accident occurred in the year 2011. The Karnataka State Legal Services Authority considering the prevailing wage rates and cost of living has prepared chart of notional income for the period 2008-2022 and the same is consistently being followed. According to that, notional income in the year 2011 was Rs.6,500/-. Since there was 100% disability, in view of the judgment of the Hon'ble Supreme Court in National Insurance Company Ltd., v. Pranay Sethi⁴ and age of the victim, 40% has to be superadded by way of future prospects. The applicable multiplier is 18. Therefore the compensation payable on the head of loss of future income is (Rs.6,500/-+2,600 (40% of Rs.6,500/-) x 12 x 18 =) Rs.19,65,600/-.

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2 (2020) 4 SCC 413

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3 (2022) 7 SCC 738

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4 (2017) 16 SCC 680

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NC: 2024:KHC:50373-DB MFA No.2103/2015 C/W MFA No.1246/2015

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The Tribunal has awarded medical expenses at Rs.3,60,000/- based on the evidence and documents produced by the claimant. The same needs to be maintained.

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In Kajal’s case referred to supra, in similar circumstances, the Hon'ble Supreme Court has awarded compensation of Rs.15,00,000/- on the heads of pain and suffering and loss of amenities. The same can be applied to the present case also.

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Medical bills and receipt are produced under I.A.No.1/2022 and I.A.No.1/2023. The above interim applications are not disputed. As already noted, the evidence of the doctors show that the claimant was in a vegetative state and he needs medical care and one attendant all the time. Therefore, awarding compensation at Rs.10,00,000/- for future medical expenses meets the ends of justice.

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Compensation on the head of loss of marriage prospects at Rs.3,00,000/- is just and fair. In view of the judgment of the Kajal’s case referred to supra, compensation of Rs.60,000/- awarded by the Tribunal on the head of diet, nourishment at pre-award stage need to be maintained.

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The accident occurred in the year 2011 and life long

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the claimant needs one attendant. Considering minimum wage of one care taker at Rs.5,000/- per month and applying 18 multiplier, compensation payable on the head of future attendant charges comes to (Rs.5,000/- x 12 x 18 =) Rs.10,80,000/-. Therefore just compensation payable is as follows:

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Sl. No.	Particulars	Compensation amount in Rs.
1	Loss of future earnings	19,65,600/-
2.	Medical expenses	3,60,000/-
3.	Pain and suffering and loss of amenities	15,00,000/-
4.	Future medical expenses	10,00,000/-
5.	Marriage prospects	3,00,000/-
6.	Future attendant charges	10,80,000/-
7.	Diet and nourishment	60,000/-
	Total	62,65,600/-

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The compensation shall carry interest at 6% per

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annum. The appeal of insurer deserves to be allowed only to regarding interest and the appeal of the claimant deserves to be allowed in part. Hence the following:

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ORDER

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M.F.A.No.2103/2015 and M.F.A.No.1246/2015 are

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allowed in part.

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I.A.No.1/2022 and I.A.No.1/2023 in M.F.A.No.2103/2015 are allowed.

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The award of the Tribunal is modified as follows:

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(i) The claimant is entitled to compensation of

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Rs.62,65,600/- with interest thereon at 6% per annum from the date of the petition till its realization.

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(ii) Respondent Nos.1 and 2 are jointly and severally liable to pay the compensation. Respondent No.2/Insurer shall deposit the said amount after adjusting the amount already deposited, if any, before the Tribunal within six weeks from the date of receipt of copy of this order.

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(iii) On such deposit, the Tribunal shall release 40% of the award amount to the next friend of the claimant digitally on furnishing required documents and balance 60% shall be invested in fixed deposit in any nationalized bank/scheduled bank of the choice of the next friend of the claimant for a period of five years, with liberty to draw the interest accrued thereon periodically.

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(iv) Registry shall transmit the amount in deposit, if any

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and the trial Court records to the Tribunal forthwith.

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Pending IAs if any stood disposed of accordingly.

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Sd/(K.S.MUDAGAL) JUDGE

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Sd/-

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(VIJAYKUMAR A. PATIL) JUDGE

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ABK/KSR

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List No.: 1 Sl No.: 53

Master Raghava v. Naik v Rahamatulla Khan

Case brief

What is this about?

What did the court decide?

Master Raghava v. Naik v Rahamatulla Khan

Case brief

What is this about?

What did the court decide?

What the court decided

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