Baby Kushi Dutt Vatsa and Kushi Alias Kushi Darmendra Vatsa Vs the United India Insurance Co. Ltd.

5^TH STAGE, 2^ND PHASE, RAJARAJESHWARI NAGAR, BANGALORE-560 098 (SINCE THE APPELLANT IS MINOR REPRESENTED BY NATURAL GUARDIAN / FATHER MR. DARMENDRA DUTT VATSA @ MINTO).

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…APPELLANT

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(BY SRI. MANOHAR B.K., ADVOCATE)

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AND:

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THE UNITED INDIA INSURANCE CO. LTD., NO.25, SHANKARNARAYANA, BUILDING, M G ROAD BANGALORE - 560 001

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SRI V DAS S/O VENKATAPPA RESIDING AT NO.60/3, SRI SUNITHA NILAYA,

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4^TH MAIN 7^TH CROSS,

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SHANKAMBARI NAGAR, J P NAGAR 1^ST PHASE, BANGALORE-560 078.

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…RESPONDENTS

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(BY SRI. RAVISH BENNI, ADVOCATE FOR R1; V/O DATED 30.11.2021 NOTICE TO R2 IS HELD SUFFICIENT)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 17.01.2011 PASSED IN MVC NO.1495/2009 ON THE FILE OF THE MEMBER, MACT, 10^TH ADDITIONAL JUDGE, MACT, BENGALURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE D K SINGH and HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

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The appellant-claimant has filed this appeal for enhancement of compensation being aggrieved by the judgment and award dated 17.01.2011 passed in MVC No.1495/2009 by the Motor Accident Claims Tribunal, Bengaluru (for short, 'Tribunal'), whereby, the Tribunal awarded a compensation of Rs.5,37,600/- with an interest at

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the rate of 6% p.a. from the date of petition till the date of realization.

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For the sake of convenience, the parties in the present appeal are referred to as they are referred to in the claim petition before the Tribunal.

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Brief facts of the claimant's case before the Tribunal are as under:-

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The claimant/appellant was a minor girl, aged 7 years, studying in 1^st Standard at Sri. Jnanakshi Vidyaniketan, Rajarajeshwarinagar, Bengaluru. She was a brilliant student and was participating in all sports and extra-curricular activities. On 05.12.2008, at about 4.45 p.m., minor appellant/claimant was standing near house No.394, 1^st Main, Chandrashekran Lane, BEML Layout, Rajarajeshwarinagar, Bengaluru. At that time, the driver of Tata Sumo vehicle bearing registration No.KA-05-AA-1729 came in high speed in a rash and negligent manner, without observing traffic rules and regulations and hit the minor appellant. Due to the impact, the minor claimant sustained grievous injuries. Immediately, she

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was shifted to Manipal Speciality Hospital, wherein she was treated as an inpatient from 05.12.2008 till 23.12.2008. This led to registration of FIR and investigation and the claimant filed claim petition under Section 166 of the M.V. Act, 1988 before the Tribunal seeking compensation.

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Learned counsel Sri Manohar B.K., appearing for the appellant/claimant vehemently contended that the compensation awarded by the Tribunal is inadequate. The Tribunal committed an error by not properly appreciating the evidence of PW.1 to PW.3. The Tribunal has not considered the evidence of Orthopedic Surgeon and Plastic Surgeon, who are examined as PWs.2 and 3. The Tribunal has held that the claimant has suffered permanent disability at 61% to the lower limb and 20% to the whole body, which is on lower side. As per the evidence to PWs.2 and 3, the claimant has difficulty in walking, squatting and other daily activities, weakness in her left leg and foot and multiple scars over both lower limb and chest. The Tribunal has not awarded just and reasonable compensation under conventional heads. Hence, the learned counsel has prayed to allow the appeal.

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Per contra , learned counsel Sri Ravish Benni, appearing for respondent No.1 Insurance company vehemently contended that the Tribunal has considered the disability aspect and has granted fair and reasonable compensation under all heads, hence, no interference is called for in that regard. Thus, learned counsel prayed to dismiss the appeal filed by the appellant/claimant.

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We have perused the material available on record and having heard learned counsel for the parties, the following point arises for our consideration in the appeal:-

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"Whether the compensation awarded by the Tribunal to a child who suffered disability in a Motor Vehicle accident, is just and reasonable or does it call for any enhancement"?

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To prove the claim of the appellant, one Dharmendra Dutt Vatsa @ Minto, father of the minor claimant was examined as PW.1. In the evidence of PW.1, he has reiterated the contents of the claim petition. He has stated that in the accident, the claimant suffered grievous injuries and the

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claimant has difficulty in walking, squatting and other daily activities, weakness in her left leg foot and multiple scars over both lower limb and chest. The oral evidence stands corroborated with the contents of Ex-P6 wound certificate and Ex-P7 discharge summary. As per Ex-P6, the claimant sustained the following injuries:-

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Crush injury left leg with skin loss with ischemic Gangrene of 2^nd , 3^rd and 4^th toes of the left foot.

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Multiple abrasion over the face.

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Fracture of left femur with neuro-vascular injury.

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The oral evidence of PW-1 stands corroborated by the oral testimony of PW.2 Dr. Ramesh Krishna, an Orthpaedic Surgeon and PW.3 Dr. Sunil Kumar K.S., Plastic Surgeon. PW.2 has specifically stated that on clinical and radiological findings and guidelines of Orthopedic manual, he was of the opinion that the patient suffers permanent residual physical disability of 61% of the left lower limb, which is about 20% to 21% to the whole body. PW.2 has further stated that the claimant requires two more surgeries in future in the form of

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Tendon Transfer surgery for foot drop of left side and Prosthesis for the amputated 2^nd , 3^rd and 4^th toes of left foot.

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Further, PW-3-Dr. Sunil Kumar K.S. Plastic Surgeon

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has assessed 60% permanent disability to the left limb component of the claimant and 20% to the whole body. Thus the disability is 20% and considering the nature of injuries and amputation suffered by the claimant, the Tribunal has rightly assessed the disability of injured at 20% which is fair and reasonable one.

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As per the ratio laid down in the case of Master Mallikarjun Vs. Divisional Manager, National Insurance Company Limited and Another , reported in 2014 (14) SCC 396 , for a minor, who is aged 7 years, as on the date of the accident and the child who has suffered permanent disability at 60% to the lower limb component and 20% to the whole body, this Court grants a lump sum compensation amount of Rs.3,00,000/- under the head 'pain and suffering undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts etc., and loss of amenities in life on account of permanent disability'.

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Further, under the head 'Discomfort, inconvenience

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and loss of earnings to the parents during the period of hospitalisation', a sum of Rs.25,000/- is awarded and towards 'Medical and incidental expenses during the period of hospitalization for 21 days', a compensation of Rs.25,000/- is awarded.

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Towards 'Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment', a compensation of Rs.25,000/- is awarded.

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Thus, the claimant is entitled for the enhanced compensation of Rs.3,75,000/- in addition to the compensation awarded by the Tribunal at Rs.5,37,600/-, which totally comes to Rs.9,12,600/- as per the table below.

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Compensation under different Heads	Amount awarded by this Court
Pain and suffering	3,00,000/-
undergone and to be
suffered in future, mental and physical shock,
hardship, inconvenience and discomforts etc., and
loss of amenities in life on account of permanent disability

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'Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation'	25,000/-
'Medical and incidental expenses during the period	25,000/-
of hospitalization for 21 days
'Future medical expenses	25,000/-
for correction of the
Malunion of fracture and
incidental expenses for such treatment'
TOTAL	3,75,000/-
Compensation awarded by the Tribunal	+ 5,37,600/-
Enhanced compensation	Rs.9,12,600/-

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Accordingly, 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 dated 17.01.2011 passed in MVC No.1495/2009 passed by Motor Accident Claims Tribunal, Bengaluru(SCCH-16) is modified to an extent that the claimant is entitled to enhanced compensation of Rs.3,75,000/- in addition to

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compensation of Rs.5,37,600/- which has been

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awarded by the Tribunal. However, it is made clear that the claimant is not entitled for interest on the enhanced compensation for the delayed period of 1894 days.

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iii) The enhanced compensation amount shall carry interest at the rate of 6% per annum from the date of petition till realization.

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iv) Respondent No.1-Insurance Company shall deposit the enhanced compensation with accrued interest before the Tribunal within six weeks from the date of receipt of copy of this judgment.

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