Minor Deepshika Vs K Nagaraja

MINOR DEEPSHIKA AGED ABOUT 3 YEARS, D/O LOKESH BHANDARY, R/O C/O SUNGANDHI, JATHA BETTU, UPPOOR POST AND VILLAGE, UDUPI TALUK & DISTRICT-576 101. SINCE APPELLANT IS MINOR SHI IS REP: BY MOTHER GUARDIAN-KAVYA

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…APPELLANT

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(BY SRI. NAGARAJ HEGDE, ADVOCATE)

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AND:

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K NAGARAJA AGED ABOUT 53 YEARS, S/O VENKATARAMANA SHERIGARA, R/O H.NO. 11/128, INDIRANAGARA, POST: KATBELTHUR, HEMMADI VILLAGE, KUNDAPURA TALUK, UDUPI DISTRICT-576 201.

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THE NEW INDIA ASSURANCE CO. LTD., DIVISIONAL OFFICE, SRI RAM ARCADE, OPP: H.P.O., UDUPI-576 101, REP: BY ITS DIVISIONAL MANAGER.

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…RESPONDENTS

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(BY SRI. S.KRISHNA KISHORE, ADVOCATE FOR R-2; R-1 IS SERVED AND UNREPRESENTED)

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MFA No. 3603 of 2015

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THIS MFA FILED U/S 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 26.11.2014 PASSED BY THE COURT OF PRL. SENIOR CIVIL JUDGE AND ADDL. MACT, UDUPI, IN M.V.C.NO.877/2013 TO THE EXTENT OF DISALLOWED CLAIM AND ALLOW THIS APPEAL BY ENHANCING THE COMPENSATION, IN THE INTEREST OF JUSTICE.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 09.10.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO

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CAV JUDGMENT

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The present appeal is filed to set aside the judgment and award dated 26.11.2014, passed in M.V.C No.877/2013 on the file of the Principal Senior Civil Judge and Additional Motor Accidents Claims Tribunal, Udupi (hereinafter referred to as ‘the Tribunal’ for short) to the extent of disallowed claim and allow this appeal by enhancing the compensation.

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The facts leading to the filing of this appeal are as follows:

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MFA No. 3603 of 2015

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The claimant filed a petition through her guardian under Section 166 of the Motor

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Vehicles Act (for short ‘MV Act’) against the respondents towards the grievous injuries sustained by the claimant.

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On 16.06.2013 at about 7:15 p.m., the claimant-Deepshika, while traveling in an auto-rickshaw from Koteshwara towards Kundapura, upon reaching near the KSRTC Depot, opposite Geetha Sadana House, Voderahobli Village, met with an accident when a car bearing Registration No.KA-20-B-3631, coming from Kundapura towards Koteshwara in the opposite direction, was driven in a rash and negligent manner, as the driver lost control of the vehicle, came to the extreme right side of the road, and dashed to the auto-rickshaw in which the claimant was traveling. As a result, the claimant sustained grievous injuries and was hospitalized.

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The respondent No.1 did not appear before the

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Tribunal and hence was placed exparte .

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MFA No. 3603 of 2015

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On service of notice, the respondent No.2Inurance Company appeared through counsel and filed written statement in which the averments made in petition were denied. However, it has admitted the validity of the insurance policy in respect of the said vehicle as on the date of the accident. It was further submitted that the driver of the alleged vehicle did not possess a valid and effective driving licence to drive the said vehicle at the time of the accident, and therefore, respondent No.2 is absolved of liability. Accordingly, respondent No.2 filed an application under Section 170 of the M.V.Act and prayed for dismissal of the petition.

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On the basis of the pleadings of the parties, the Tribunal framed issues and recorded the evidence. The mother of the claimant was examined as PW-1 and marked documents at Ex.P1 to Ex.P42. On behalf of the respondents, one witness has been examined as RW-1 and got marked three documents as per Ex.R1 to R3. The Tribunal, by the impugned judgment and Award, inter alia held that the accident took place on account of rash and

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MFA No. 3603 of 2015

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negligent driving of the offending vehicle (auto-rickshaw), as a result of which the claimant suffered grievous injuries. Further it was also held that claimant was entitled to a compensation of Rs.59,500/-, with interest 8% p.a., and directed that the respondents No.1 and 2 are jointly and severally liable to pay the compensation amount. However, respondent No.2 has proved the violation of policy condition. Hence, Insurance Company/respondent No.2 is at liberty to recover the same from the Insurer/respondent No.1.

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The Tribunal has awarded compensation under

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different heads as under:

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Sl.No.	Particulars	Rs.
1	Painand Suffering	25,000-00
2	Medicalexpenses	5,000-00
3	Nourishment, Conveyance, attendant, expenses (500+1000+3000)	4,500-00
4	Loss ofamenities	25,000-00
	Total	59,500-00

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It is contended by the learned counsel

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appearing for the appellant that as a result of the accident,

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MFA No. 3603 of 2015

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she sustained grievous injuries, namely, fracture of the left distal humerus and she was immediately shifted to the hospital where she was treated as an inpatient for more than one day and as an outpatient on more than three occasions. During this period, she suffered severe physical pain and mental agony. The appellant contends that the Tribunal failed to appreciate the extent of her suffering and ought to have awarded higher compensation under this head. It is further submitted that the appellant incurred expenses exceeding Rs.45,000/- towards medical treatment, conveyance, special diet, nourishment, and attendant charges. However, the Tribunal awarded only Rs.5,000/- towards medical expenses, Rs.3,000/- towards attendant charges, Rs.500/- towards nourishing food, and Rs.1,000/towards conveyance, which are highly inadequate.

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The appellant, therefore, prays for

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enhancement of compensation under these heads commensurate with the actual expenditure and suffering sustained.

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MFA No. 3603 of 2015

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It is further contended that prior to the accident, the appellant was hale and healthy. However, due to the said accident, she has suffered permanent disability. The range of movement of her left elbow joint has been reduced by 20% and the fractured bone has malunited. The medical expert assessed a 10% permanent disability in relation to the left upper limb. The Tribunal, however, failed to properly appreciate the said evidence and awarded a sum of Rs.25,000/- towards loss of amenities without granting any compensation towards discomfort or loss of future prospects.

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The appellant, therefore, prays for

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enhancement of compensation under the heads of loss of amenities, discomfort, and loss of future prospects and commensurate with the actual expenditure and suffering sustained.

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In support of his contentions, learned counsel appearing for the appellant has placed reliance on the judgment of the Apex Court in case of Mallikarjun v.

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MFA No. 3603 of 2015

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Divisional Manager, National Insurance Company

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Limited and Another reported in (2014) 14 SCC 396, wherein, the Apex Court laid down a broad guideline for just compensation in cases involving non-earning persons or minors who suffer permanent disability, as observed under:

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12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs 3 lakhs; up to 60%, Rs 4 lakhs; up to 90%, Rs 5 lakhs and above 90%, it should be Rs 6 lakhs. For permanent disability up to 10%, it should be Rs 1 lakh, unless there are exceptional circumstances to take a different yardstick.

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Hence, the Apex Court held that in cases of minors or non-earning individuals suffering permanent disability in motor vehicle accidents, a just and reasonable compensation is to be awarded based on the percentage of

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MFA No. 3603 of 2015

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disability, irrespective of proof of income or loss of future earnings.

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Heard learned counsel appearing for the appellant as well as respondent No.2-Insurance Company.

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In view of the law laid down by the Apex Court in Mallikarjun’s case (supra) it is observed that the appellant herein, is one-year old girl with no proven income, has suffered 10% permanent disability to her left upper limb due to malunion of the distal humerus and restricted range of motion. Therefore, the claimant is entitled to a sum of Rs.1,00,000/- under the head Pain and Suffering. Compensation awarded under the other heads remain undisturbed in terms of the award of the Tribunal. Thus, the claimant is entitled to compensation

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as under:

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Sl.No.	Particulars	Rs.
1	Pain and Suffering	1,00,000-00
2	Medicalexpenses	5,000-00
3	Nourishment, Conveyance, attendant, expenses (500+1000+3000)	4,500-00
4	Loss of amenities	25,000-00
	Total	1,34,500-00

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MFA No. 3603 of 2015

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Accordingly, the following Order is passed:

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i) Miscellaneous First Appeal is allowed in part.

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ii) The claimant is entitled to a total compensation of Rs.1,34,500/- along with interest at the rate of 6% p.a., from the date of petition till realization.

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iii) The Insurance Company is directed to deposit the compensation amount along with interest within a period of eight weeks from the date of receipt of copy of this judgment.

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iv) Registry is directed to return the Trial Court Records to the Tribunal, along with certified copy of the order passed by this Court forthwith.

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v) To the aforesaid extent, the judgment of the Claims Tribunal is modified.

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Sd/(DR.K.MANMADHA RAO) JUDGE

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BNV

Minor Deepshika v. K Nagaraja

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Minor Deepshika v. K Nagaraja

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