Kumari Nikita D/O Yallappa Patil, Vs Shri. Anil Pujari

KUMARI NIKITA D/O. YALLAPPA PATIL, AGE: 10 YEARS, OCC: STUDENT, SINCE MINOR, REPRESENTED BY HER MINOR GUARDIAN, NATURAL FATHER SHRI YALLAPPA BALU PATIL, AGE: 41 YEARS, OCCUPATION: AGRICULTURE, R/O. AMBEWADI, LAXMI GALLI, AMBEWADI, TALUKA AND DIST: BELAGAVI.

¶11

…APPELLANT

¶12

(BY SRI. H. M. DHARIGOND, ADVOCATE)

¶13

AND:

¶14

SHRI ANIL VISHNU PUJARI,

¶15

AGE: MAJOR, OCC: BUSINESS, R/O. RAMDEV GALLI, AMBEWADI VILLAGE, TALUKA AND DIST: BELAGAVI.

¶16

Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶17

THE DIVISIONAL MANAGER, IFFCO TOKIO GENERAL INSURANCE COMPANY LTD, D.O. SHIKSHAK VISHWASTA MANDAL’S SHIKSHAK BHAVAN, COLLEGE ROAD, BELAGAVI.

¶18

…RESPONDENTS

¶19

(BY SRI. R. R. MANE, ADV. FOR R2; NOTICE TO R1 SERVED)

¶20

THIS MISCELLANEOUS FIRST APPEAL IS FILED U/S.173(1) OF MOTOR VEHICLES ACT, PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND AWARD DATED 10.01.2017 PASSED IN MVC NO.2669/2014 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE AND ADDITIONAL M.A.C.T., BELAGAVI AND AWARD JUST AND REASONABLE COMPENSATION UNDER THE ALL PERMISSIBLE HEADS IN THE INTEREST OF JUSTICE AND EQUITY.

¶21

2 -

¶22

NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶23

HC-KAR

¶24

THIS APPEAL, COMING ON FOR HEARING ON IA, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶25

ORAL JUDGMENT

¶26

(PER: THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI)

¶27

Today this appeal is listed for order on application for condonation of 84 days delay in filing the appeal. With consent of learned Counsels for Appellant and Respondent No.2-Insurer, the case is taken up for final disposal.

¶28

The Appellant, who is the Petitioner before the learned tribunal has maintained this appeal praying to set aside the judgment and award dated 10.01.2017 passed in MVC No.2669/2014 by the learned VI Additional District and Sessions Judge and Additional M.A.C.T., Belagavi (for short, ‘the Tribunal’) and to award just and reasonable compensation under all permissible heads, in the interest of justice and equity.

¶29

The trial court record is not yet received. Learned Counsel for Appellant has produced the copies of relevant papers for the perusal and consideration of this Court.

¶30

The parties to this appeal are referred to as per their original ranking before the learned tribunal.

¶31

3 - NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶32

HC-KAR

¶33

The Petitioner, who is a minor represented by her guardian and natural mother, has maintained the petition in MVC No.2669/2014 claiming compensation of Rs.5,00,000/- together with interest for the injuries sustained in a road traffic accident occurred on 27.01.2014. On service of notice of the said petition, both Respondent Nos.1 and 2 appeared before the tribunal through their counsel and contested the petition. After completion of pleadings and framing of issues, the tribunal recorded the evidence adduced by both side and dismissed the petition vide judgment dated 10.01.2017. The impugned judgment goes to show that the learned tribunal proceeded to dismiss the claim petition mainly on the ground that there was delay in lodging the complaint and evidence adduced by PW-1 is contrary to the pleadings and documents produced on behalf of the petitioner. The learned tribunal has further held that the Petitioner has failed to prove the rash or negligent driving on part of the driver of the offending vehicle.

¶34

During course of the argument, learned Counsel for Appellant vehemently argued that the tribunal has committed an error in not properly appreciating the case of the Petitioner in the

¶35

4 - NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶36

HC-KAR

¶37

light of the amended petition and other materials placed on record. He has submitted that there is ample evidence to prove actionable negligence on the part of the offending vehicle as well as to show that the Petitioner has suffered injuries in the said accident. As such, it is contended that learned tribunal ought to have allowed the claim petition and awarded just compensation to the Petitioner.

¶38

Per Contra , learned Counsel Sri R.R.Mane for Respondents No.2 has supported the findings recorded by the tribunal in the impugned judgment and submitted that the Petitioner has not made out any valid ground to interfere with the said findings.

¶39

Undisputedly, initially the Petitioner had averred that the accident in question had occurred on 28.01.2014 at 10:00 hours. Later on, the Petitioner got amended the petition and got modified the date of accident as 27.01.2014 in place of 28.01.2014. The contents of the impugned judgment give an impression that even after such amendment, necessary correction was not made in the correspondence issue i.e., Issue No.1, which contains the date of accident as 28.01.2014.

¶40

5 - NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶41

HC-KAR

¶42

It is true that even in the examination-in-chief of PW-1 filed on 27.01.2016, the guardian of the Petitioner has mentioned the date of accident as 28.01.2014. Later on, PW-1 filed an additional affidavit in lieu of his examination-in-chief, wherein he stated the correct date of accident as 27.01.2014.

¶43

It is the case of Petitioner that on 27.01.2014 at about 10.00 a.m. when she was going by walk towards Laxmi Devasthana in Ambewadi on left side of the road, she met with a road traffic accident due to actionable negligence on the part of the rider of the motorcycle bearing registration No. KA-22-EC-8290. The Petitioner has produced relevant police papers before the tribunal such as the complaint and the charge sheet, to support the above contention. As per the police papers, the rider of the motorcycle in question has been accused of having committed offences punishable under Sections 279 and 338 of IPC read with Sections 134 and 187 of the Indian Motor Vehicles Act, 1988. The said material on record coupled with the oral evidence adduced on the side of the Petitioner probabalise the actionable negligence on part of the rider of the offending vehicle.

¶44

6 -

¶45

NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶46

HC-KAR

¶47

It is the case of Petitioner that she had suffered undisplaced fracture of tibia and fibula on the right side distal 1/3^rd and other injuries in the incident. The contents of the Wound Certificate marked as Ex.P.6 supports the said contention of the Petitioner. Ex.P.6 contains a specific mention about deformity in the right lower limb of the Petitioner. Thereby it becomes that the Petitioner had suffered grievous injury in the incident in question.

¶48

It is true that the Petitioner has not produced any material before the tribunal pertaining to her treatment except the certificate produced at Ex.P10. As per Ex.P10, the Petitioner has undergone treatment at K.L.Es. Hospital, Belagavi for one day i.e., on 28.01.2014. The Petitioner has also not produced any material evidence before the tribunal to show the nature or extent of medical treatment received. As already pointed out, as per Ex.P-10, the Petitioner has undergone treatment at K.L.Es. Hospital, Belagavi on 28.01.2014 that to on OPD basis. Thus, it seems that the Petitioner has received only conservative treatment for the injuries sustained in the accident.

¶49

7 - NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶50

HC-KAR

¶51

The Petitioner has examined one Dr. Prakash C. Wali as PW-2. In his testimony, PW-2 stated that the Petitioner has sustained 20% permanent physical disability in relation to the right lower limb. Undisputedly, the Petitioner had sustained undisplaced fracture. In view of the same, this Court opines that the actual permanent disability, if any, suffered by the Petitioner does not exceed 7%.

¶52

In the case of Mallikarjun v. Divisional Manager, National Insurance Co. Ltd. , reported in (2014) 14 SCC 396 , the Hon’ble Supreme Court of India has held that it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of motor vehicle accident and having regard to the relevant factors, precedents and the approach of various High Courts, held that it would be appropriate to award compensation of ₹1,00,000/for permanent disability upto 10%, on all other heads in addition to the actual expenditure for treatment, attendant, etc.

¶53

In the present case, the Petitioner was aged about 7 years as on the date of accident. The Wound Certificate marked at Ex.P-6 goes to show that she has suffered un-displaced

¶54

8 - NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶55

HC-KAR

¶56

fracture of tibia and fibula on the right side in distal 1/3^rd . During his evidence PW-2 Dr.Prakash C. Wali has stated that on clinic examination he has found limps on right side and wasting of right calf muscles. He has opined that the Petitioner has got 20% permanent physical disability in relation to her right lower limb. As such it would be proper to presume that the Petitioner has got permanent physical disability of above 7% to whole body. Thus, taking into account the nature of disability, probable medical expenses, and other incidental charges, this Court is of the considered view that it would be just and proper to award a global compensation of ₹1,30,000/- to the Petitioner.

¶57

As already pointed out, there are sufficient materials on record to prove that the accident in question occurred due to the actionable negligence of the rider of the motorcycle bearing registration no.KA-22-EC-8290. Undisputedly, the Respondent No.1 is the owner of the offending vehicle and Respondent No.2 is its insurer.

¶58

Learned Counsel for Respondent No.2 sought to avoid liability on the ground that the rider/owner of the motorcycle did not possess a valid driving licence at the time of the accident.

¶59

9 - NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶60

HC-KAR

¶61

However, no concrete evidence has been adduced by the insurer to support this contention. It is to be noted that while filing the charge sheet, the Investigating Officer did not invoke Section 3 of the Motor Vehicles Act. Further, during the cross-examination, RW2 - the witness for the Insurance Company (Respondent No.2), has categorically admitted that the rider of the motorcycle in question possessed a valid and effective driving licence as on the date of the accident. In view of the same, it is to be held that both Respondent No.1, the owner and Respondent No.2, the insurer are jointly and severally liable to pay the compensation amount as determined by the Court.

¶62

In the result, this Court proceeds to pass the following:

¶63

ORDER

¶64

(i) The appeal is partly allowed.

¶65

(ii) The judgment and award dated 10.01.2017 passed in MVC No.2669/2014 by the VI Additional District and Sessions Judge and Additional M.A.C.T., Belagavi is set aside.

¶66

10 -

¶67

NC: 2025:KHC-D:14143 MFA No. 102381 of 2017

¶68

HC-KAR

¶69

(iii) Consequently, it is held that the Petitioner is entitled for compensation of ₹1,30,000/(Rupees One Lakh Thirty Thousand) only together with interest thereon at the rate of 6% per annum, from the date of filing of the petition till its realization.

¶70

(iv) Respondent Nos.1 and No. 2 are jointly and severally liable to pay the said compensation.

¶71

(v) Respondent No.2 is directed to deposit the award amount before concerned tribunal within two months from the date of receipt of certified copy of this judgment.

¶72

(vi) The Petitioner is entitled to withdraw the entire compensation amount on its deposit.

¶73

(vii) Draw award accordingly.

¶74

Sd/(B. MURALIDHARA PAI) JUDGE

¶75

CKK/VB CT-AN

¶76

List No.: 1 Sl No.: 8

Kumari Nikita D/O Yallappa Patil, v. Shri. Anil Pujari

Case brief

What is this about?

What did the court decide?

Kumari Nikita D/O Yallappa Patil, v. Shri. Anil Pujari

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Kedarlingapa S/O Tukaramappa, Vs Shivappa S/O Thimmappa

Jotiba S/O Kedarlingappa Vs Shivappa S/O Thimmappa

Smt. Gundamma @ Hyothi W/O Kalappa, Vs Kotresh S/O Eranna B