Master Niranjan Vs Sri. Veeresh

MASTER NIRANJAN @ ANANTHA NIRANJAN D R S/O D.K. RANGARAJU, (DODDABALLAPUR KRISHNA BHATTAR RANGARAJU) @ RANGARAJU BHATTA, @ RANGARAJU BHATTER, D.K AGED ABOUT 6 YEARS R/AT NO.112, 1ST CROSS, NEW BDA LAYOUT, AVALAHALLI, BDA 3RD STAGE, BYATARAYANAPURA, BANGALORE-560085 SINCE THE PETITIONER IS MINOR REPRESENTED BY HIS NATURAL GUARDIAN/ MOTHER SMT. NALINA R W/O D.K.RANGARAJU DODDABALLAPUR KRISHNA BHATTAR RANGARAJU) @ RANGARAJU BHATTA, @ RANGARAJU BHATTER, D.K AGED ABOUT 28 YEARS, …APPELLANT (BY SRI. R VENKATESHA NAIDU, ADVOCATE)

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AND:

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SRI. VEERESH S/O BASANNA, NO.43, 10TH CROSS, CHANNAKESHAVA NILAYA, M.S.LAYOUT, LAGGERE, BANGALORE-560058

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ROYAL SUNDARAM ALLIANCE INSURANCE CO.LTD.,

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HC-KAR

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NO.30, 3RD FLOOR, JNR CITY CENTRE, RAJARAM MOHAN ROY ROAD, SAMPANGIRAMANAGAR, BANGALORE-560027

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…RESPONDENTS

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(BY SRI. RAVI S SAMPRATHI, ADVOCATE FOR R2 NOTICE TO R1 IS DISPENSED WITH V/O DTD 21.11.2023)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 29.08.2017 PASSED IN MVC NO.2681/2016 ON THE FILE OF THE XXII ADDITIONAL SAMLL CAUSES JUDGE, & XX ACMM, MEMBER, MACT, BENGALURU, (SCCH24), PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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The present appeal is filed by the claimant under Section 173(1) of the Motor Vehicles Act, 1988¹ challenging the judgment and award dated 29.08.2017 passed in MVC No.2681/2016 by the XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate and MACT, Bengaluru (SCCH-24)² , seeking for enhancement of compensation.

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1 Hereinafter referred to as ‘Act, 1988’

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2 Hereinafter referred to as ‘Tribunal’

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HC-KAR

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The Tribunal vide its judgment and award dated 29.08.2017 has awarded a total compensation of 8,01,200/together with interest at 8% per annum excluding 50,000/awarded towards future medical expenses.

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The findings of the Tribunal on negligence and liability are not under challenge and have attained finality. Hence, the only question that is required to be adjudicated in present appeal is with regard to the adequacy of the quantum of compensation.

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Heard submissions of learned counsel

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Sri R Venkatesha Naidu appearing for the appellant/claimant and learned counsel Sri Ravi S Samprathi appearing for respondent No.2/insurer.

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The claimant was aged five years as on the date of the accident i.e., as on 28.03.2016. The accident occurred, when the claimant was standing in front of his house, when the offending lorry being driven by its driver in a rash and negligent manner came at a high speed and hit the claimant, wherein the front left wheel of the lorry ran over both the legs of the claimant. It is evident from the wound certificate (Ex.P6), two

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HC-KAR

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discharge summaries issued by the Victoria hospital (Ex.P10), two inpatient records issued by Victoria hospital (Ex.P14) and inpatient records issued by Bengaluru Medical College and Research Institute Super Specialty Hospital (PMSSY) (Ex.P17) that the claimant sustained open sub-trochanteric fracture of left thigh and degloving injury to both the legs. The claimant has taken treatment as an inpatient on various dates for a total period of 39 days. PW.2 who is an orthopedic surgeon at Victoria hospital has deposed regarding the injuries sustained and surgery undergone by the claimant. It is further deposed that the claimant was re-admitted on 27.06.2016 and the implants were removed, consequent to which, he was discharged on 02.07.2016. That, when PW.2 examined the claimant for the purpose of disability, he noticed that the claimant complained of pain in the left thigh, right foot as also noticed deformity of the left lower limb and right foot. He has further observed that the claimant cannot sit on the floor, sit cross-legged, and has difficulty to climb stairs and difficulty to do routine activities. PW.2 has assessed the permanent disability to the lower limbs at 60% and whole body disability at 30%.

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HC-KAR

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Learned counsel for the appellant – claimant placing reliance on the judgment of the Hon'ble Supreme Court in the case of BABY SAKSHI GREOLA V/S MANZOOR AHMAD SIMON AND ANOTHER³ , seeks for assessment of functional disability at a higher percentage and also seeks for enhancement of the quantum of compensation in terms of the judgment of the Hon'ble Supreme Court in the case of BABY SAKSHI GREOLA³ .

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An Assistant Professor of the Plastic Surgery Department of Bangalore Medical College has been examined as PW.3. He has deposed regarding the injuries sustained as well as the treatment taken by the claimant at the Bangalore Medical College. That when PW.3 has examined the claimant, he noticed the same disabilities as noticed by PW2. PW.3 has assessed the physical disability at 66% to the left lower limb and 15% to the right lower limb and the whole body disability at 41%.

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The photographs (Ex.P12) clearly demonstrates the

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disability on the left leg of the claimant as well as on the right

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3 “2024 SCC ONLINE SC 3692”

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HC-KAR

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foot of the claimant, as also the scars on both the legs. It is clear from a perusal of the medical evidence on record as well as the photographs, that due to the unfortunate accident, the claimant who is a young boy has to suffer the disabilities caused due to the accident, throughout his life, which will impair his physical activities, marriage prospects and also an impediment, when he pursues his education and professional career. Keeping in mind the nature of injuries sustained and the disability assessed by PW.2 and PW3, as also upon noticing the photographs (Ex.P12), having regard to the restrictions that the claimant will have to undergo throughout his life, it is just and proper that the functional disability of the claimant be reassessed as 70%.

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It is pertinent to note that in the case of BABY SAKSHI GREOLA³ , the Hon'ble Supreme Court was considering the case of an accident which occurred on 02.06.2009 with respect to a seven year old girl, wherein the disability was assessed by the doctor as 75%. However, the Hon’ble Supreme Court has assessed the disability at 100%.

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HC-KAR

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Keeping in mind the aforementioned factual matrix, as also the legal position as noticed above, the quantum of compensation is reassessed as follows:

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i. Having regard to the nature of injuries sustained and the period of treatment, the compensation towards pain and suffering is re-assessed in a sum of 10,00,000/- as against 1,00,000/- awarded for the Tribunal;

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ii. The Tribunal has awarded medical expenses in a sum of 1,01,121/-. The said compensation is awarded as per the actual medical bills produced. It is just and proper that the medical expenses incurred be rounded off as 1,20,000/-;

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iii. Having regard to the nature of injuries sustained and the period of treatment, the compensation towards food, nutrition and attendant charges be re-assessed in a sum of 1,00,000/- as against 50,000/- awarded by the Tribunal;

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iv. The claimant will have to incur future medical expenses throughout his life. Hence, the future medical expenses is re-assessed as 3,00,000/- as against 50,000/awarded by the Tribunal;

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HC-KAR

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v. Having regard to nature of injuries sustained and the period of treatment, the compensation towards loss of amenities is re-assessed as 5,00,000/- as against 4,00,000/awarded by the Tribunal;

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vi. The Hon'ble Supreme Court in the case of BABY SAKSHI GREOLA³ has assessed the income of the claimant, therein by taking into consideration the minimum wages payable in Delhi during the relevant period. In the present case, the notional income of the claimant for the purpose of assessment of loss of future earning capacity/disability is assessed as `9,500/-. 40% is added towards future prospects, having regard to the judgment of the Hon'ble Supreme Court in the case of SIDRAM V/S DIVISIONSAL MANAGER, UNITED

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INDIA INSURANCE COMPANY LIMITED AND ANOTHER⁴ . Accordingly, the loss of future earning capacity is re-assessed as (9,500/- + 40% X 12 X 18 X 70%)= 20,10,960/-;

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vii. The injury sustained by the claimant will affect his marriage prospects. Accordingly, the loss of marriage prospects is assessed in a sum of `3,00,000/-;

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4 “(2023)3 SCC 439”

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HC-KAR

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viii. The Tribunal has awarded compensation of `1,00,000/- towards loss of earning of the parents, which is set aside.

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Taking judicial notice of the rate of interest awarded towards fixed deposits, interest on the enhanced compensation is awarded as 7% pa.

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In view of the aforementioned, the compensation re-

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assessed is as follows:

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Sl.No	Compensation Head		Amount Awarded by the Tribunal (`)	Amount awarded by this Court (`)
1	Pain and suffering		100000.00	1000000.00
2	Medical expenses		101121.00	120000.00
3	Food, nourishm conveyance attendant charges	ent, and	50000.00	100000.00
4	Discomfort, inconvenience and of earnings to parents	loss the	100000.00	00.00
5	Future medical other expense	and	50000.00	300000.00
6	Loss of amenities		400000.00	500000.00
7	Marriageprospects		00.00	300000.00
8	Loss of future ear capacity	ning	00.00	2010960.00
	Total		801121.00	4330960.00

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Accordingly, the Claimant is entitled to an enhanced

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compensation of (43,30,960/- - 8,01,121/-)= `35,29,839/-.

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HC-KAR

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In view of the aforementioned, the following:

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ORDER

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i) The appeal is allowed in part;

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ii) The judgment and award dated 29.08.2017 passed in MVC No.2681/2016 by the XXII Additional Small Causes Judge and XX Additional Chief Metropolitan Magistrate and MACT, Bengaluru (SCCH-24), is modified to the extent ordered herein. In all other respects, the judgment and award of the Tribunal remains unaltered;

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iii) The appellant/claimant is entitled to a further compensation of 35,29,839/- together with interest at 7% per annum (excluding the increased enhancement of future medical expenses of 2,50,000/-) from the date of petition till its realization in addition to the compensation awarded by the Tribunal;

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iv) Out of the enhanced amount, 5,00,000/- shall be disbursed to the natural guardian of the claimant. The balance sum of 30,29,839/shall be kept in a fixed deposit in a nationalized bank of the choice of the claimant up to the age of majority of the claimant, with liberty to

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