National Insurance Company Limited Vs Master Madhusudan @ Madhu

NATIONAL INSURANCE COMPANY LIMITED BENGALURU REGIONAL OFFICE 2ND FLOOR, SUBHARAM COMPLEX NO. 144, M.G. ROAD BENGALURU - 560 001. POLICY ISSUED AT THE NATIONAL INS. CO. LTD., KATURI MANSION, M.G. ROAD, ABOVE CORPORATION BANK, TUMKUR, KARNATAKA - 572 101, REPRESENTED BY ITS GENERAL MANAGER.

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(BY SRI. ANUP SEETHARAMA RAO, ADVOCATE)

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AND:

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…APPELLANT

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MASTER MADHUSUDAN @ MADHU S/O JAYARAM, AGED 17 YEARS NO 63, GOLLARAHALLI PIPE LINE ROAD, BENGALURU - 91 SINCE MINOR REPRESENTED BY HIS MORTHER SMT. MANJULA J

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HC-KAR

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W/O JAYARAM, AGED 36 YEARS AS A NATURAL GUARDIAN.

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MR. V. NARAYANAPPA S/O VENKATACHALAIAH AGED MAJOR S.V.S MOTORS, SIDDAGANGA EXTEN TUMKUR TOWN AND DISTRICT KARNATAKA - 572 101.

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…RESPONDENTS

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(BY SRI. RAGHU R, ADVOCATE FOR R1; SRI. N. SURESHA, ADVOCATE FOR R2)

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MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09.11.2016 PASSED IN MVC NO.325/14 ON THE FILE OF THE 2ND ADDITIONAL SMALL CAUSES JUDGE & 28TH ACMM, BENGALURU, AWARDING COMPENSATION OF RS.11,16,977/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION.

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IN MFA NO. 1746/2017

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BETWEEN:

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MASTER MADHUSUDAN @ MADHU S/O JAYARAM, AGED ABOUT 17 YEARS RESIDING AT NO.63 GOLLARAHALLI PIPE LINE ROAD BANGALORE - 560 091 SINCE THE APPELLANT IS MINOR HE IS REPRESENTED BY HIS MOTHER SMT MANJULA AS NATURAL GUARDIAN

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HC-KAR

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...APPELLANT

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(BY SRI. RAGHU R.,ADVOCATE)

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AND:

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THE NATIONAL INSURANCE CO. LTD., REGIONAL OFFICE, SUBHARAM COMPLEX, M.G. ROAD BANGALORE - 560 001 REP. BY ITS MANAGER.

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SRI. V. NARAYANAPPA S/O VENKATACHALAIAH S.V.S MOTORS, SIDDAGANGA EXTENSION TUMKUR TOWN, TUMKUR DISTRICT - 572 101. ...RESPONDENTS

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(BY SRI. ANUP SEETHARAMA RAO, ADVOCATE FOR R1; VIDE ORDER DATED 10.12.19, NOTICE TO R2 IS DISPENSED WITH)

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MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 09/11/2016 PASSED IN MVC NO.325/2014 ON THE FILE OF THE II ADDITIONAL SMALL CAUSES JUDGE AND XXVIII ACMM, BENGALURU (SCCH-13), ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

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ORAL JUDGMENT

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IN MFA NO.1861/2017

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This appeal is filed by the appellant/Insurance Company under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 09.11.2016 passed in MVC No.325/2014 on the file of the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru.

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Heard the arguments of learned counsel for the both sides. The ranks of the parties are retained as per Tribunal for the sake of convenience.

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The petitioner/injured met with an accident on 17.08.2013 and filed claim petition claiming compensation of Rs.6,00,000/-. The Tribunal considering the entire oral and documentary evidence on record granted an amount of Rs.11,16,977/- with interest at the rate of 6% per annum from the date of petition till the date of realization.

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HC-KAR

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Being aggrieved by the said order, the Insurance Company preferred MFA No.1861/2017 and mainly contended that the petitioner/injured himself was negligent, as he was standing inside the bus and was thrown out of the bus through the front door. It is not the case of the claimant that the bus was overcrowded and there was no seat available for him to sit. As a result, he was constrained to travel by standing. It is highly improbable to note that only the claimant sustained injuries and no other passenger sustained any injury due to the rash and negligent driving of the bus. The Tribunal ought not to have fastened the entire liability on the appellant/insurance company. The Tribunal erred in not considering the contributory negligence on the part of the claimant. The claimant's uncle was travelling in the same bus at the time of the accident. The Tribunal has erred in assessing the disability at 75% and in taking the claimant's monthly income at Rs.6,000/-, which is in excessive. As per Ex.P.4, the petitioner/injured sustained

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HC-KAR

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only simple injuries and one grievous injury and therefore, assessment of the disability is on the higher side. Therefore, requested to set aside the judgment and award of the Tribunal.

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IN MFA NO.1746/2017

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This appeal is filed by the appellant/claimant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 09.11.2016 passed in MVC No.325/2014 on the file of the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru, seeking enhancement of the compensation.

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The petitioner/injured met with an accident on 17.08.2013 and filed claim petition claiming compensation of Rs.6,00,000/-. The Tribunal considering the entire oral and documentary evidence on record granted an amount of Rs.11,16,977/- with interest at the rate of 6% per annum from the date of petition till the date of realization. Being aggrieved by the said order, the appellant/claimant

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HC-KAR

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preferred MFA No.1746/2017. The PW.4-doctor stated that the claimant suffers from impaired intelligence, impaired memory and decreased speech. As per the neuropsychological evaluation, there is severe regression in intellectual and social functioning. Under the aforesaid circumstances, the Tribunal ought to have taken disability at 100% and the Tribunal also ought to have granted a compensation of Rs.1,50,000/- under the head of future attendant charges. The compensation granted under the heads pain and suffering, conveyance, nourishment and attendant charges is also meagre. PW.4 has advised rehabilitation/cognitive training/ occupational therapy. Therefore, the claimant requires a sum of Rs.1,50,000/towards future medical expenses and Rs.1,00,000/towards loss of amenities. Therefore, requested for enhancement of the compensation.

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The manner of the accident shows that on 17.08.2013, while the claimant was travelling in a bus and when the bus reached a bridge near Erahanumaiaha's

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HC-KAR

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Land, Vamachihalli, Kolala-Tumkur Road, the driver drove the bus rashly and negligently in a zigzag manner without observing the road humps. As a result, the petitioner who was standing inside the bus was thrown out of the bus through front door and sustained severe injuries. Neither the petitioner nor the respondents examined any eyewitness.

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Learned counsel for the respondents contended

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that the appellant/claimant was the only person who was standing inside the bus and he fell from the bus in the said accident. Therefore, the contributory negligence is to be ascertained on his part.

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Admittedly, the claimant was a 14-year-old boy

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who was travelling in the bus along with his uncle. The claimant was standing may be near the front door of the bus and as such, when the bus driven on road humps, he was thrown out through the front door. Therefore, this Court finds it is just and reasonable to fix up the contributory negligence of the claimant at 15%.

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HC-KAR

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This appeal is also filed by the claimant's

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mother as his natural guardian. At the time of the accident, the claimant was aged 14 years and was studying in the 8th class. As the accident occurred in the year 2013, this court finds it is just and reasonable to take his notional income as Rs.8,000/- per month, as per the chart prepared by the Karnataka State Legal Services Authority and the relevant multiplier is to be taken as '18'. The claimant has filed Exs.P.4-wound certificate and P.6discharge summery, along with other medical records and the Neuropsychological report marked as Ex.P.18. He has also examined the doctor as PW.4 and he is a Consultant Neurosurgeon. PW.4 stated that the claimant took treatment at NIMHANS, Bangalore, and he sustained traumatic brain injury in the accident. The CT scan revealed a midbrain contusion, bifrontal contusions with diffuse cerebral edema. The claimant was treated with edema measures and ICP monitoring. Again he was admitted to and treated at ESI Hospital, Rajajinagar.

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HC-KAR

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Later, he was treated in NIMHANS on an OPD basis. The claimant was studying in the 8th standard at the time of accident. H owever, due to the injuries he was unable to resume his studies. On examination, the claimant was have decreased intelligence and memory, decreased speech, conscious patient with impaired intelligence. Neuro Psychological evaluation was done on 15-05-2015. Therefore, PW.4 assessed disability at 75%.

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10. Ex.P.18 is the Neuropsychological Report given by one Divya M., who is a psychologist. But she has not been examined before the Tribunal. She has stated as follows:

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"The claimant obtained a SQ of 22, indicating severe regression in intellectual and social functioning. His IQ amounts to very severe intellectual disability with a disability rate of 100%. He has been advised sensory motor stimulation, encourage and let him perform the activities of daily living and emphasize social development, rehabilitation / Cognitive Training / Occupational Therapy."

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HC-KAR

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Learned counsel for the appellant relied upon the decision of Hon'ble Supreme Court in the case of Kajal Vs. Jagdish Chand and Ors¹ , and requested the Court to grant reasonable amounts under the heads of pain and suffering, attendant charges, loss of amenities and loss of marriage prospects, as he has sustained 100% disability. As per the evidence of doctor, the claimant sustained 75% of disability. Therefore, this Court finds that it is just and reasonable to take the disability as 75%. As the petitioner has sustained more than 20% disability, in view of the decision of this Court in New India Assurance Company Vs. Abdul S/o. Mehaboob Tahasildar and Others in MFA No.103807/2016 , dated 27.05.2022 , he is entitled to future prospects. The petitioner was aged 14 years. Therefore, he is entitled to 40% towards future prospects. Accordingly, the loss of future earning capacity

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comes to Rs.18,14,400/- (8,000 + 40% × 12 × 18 × 75%). The petitioner was admitted in the hospital for a

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1 AIR 2020 SC 776

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HC-KAR

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period of 25 days. It is also observed that, as per Ex.P.7,

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the certificate issued by the school, the claimant was absent to the school from 18.08.2014 onwards due to the injuries sustained in the accident and thus, there is loss of an academic year. Considering the age of the claimant, period of hospitalization, nature of injuries sustained by him and other relevant factors, this Court finds that it is just and reasonable to grant an amount of Rs.1,00,000/- towards pain and suffering, Rs.1,00,000/- towards loss of amenities, Rs.75,000/- towards transportation, extra nourishment and attendant charges and Rs.2,00,000 /- towards future prospects of marriage. The Tribunal already granted a sum of Rs.1,227/- towards medical expenses and the said amount is confirmed.

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Thus in all, compensation awarded by this Court is as below:

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HC-KAR

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Sl.Nos.	Particulars	Amount in Rs.
1.	Towards pain and suffering	1,00,000/-
2	Towards medical expenses	1,227/-
3	Towards transportation, extra nourishment and attendant charges	75,000/-
4.	Towards loss of amenities	1,00,000/-
5	Towards loss of marriage prospectus	2,00,000/-
7	Towards loss of future earning capacity	18,14,400/-
	Total	22,90,627/-

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Hence, the appellant-claimant is entitled for a total compensation of Rs.22,90,627/- along with interest at the rate of 6% p.a.

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Learned counsel for the respondents stated that the claimant had claimed only Rs.6,00,000/-, whereas the Tribunal had already granted a sum of Rs.11,16,977/-. But the Court is at liberty to grant just and reasonable compensation, irrespective of the amount claimed in the petition. Therefore the Insurance Company is directed to

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HC-KAR

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deposit the enhanced compensation of Rs.11,73,650/- , along with interest at the rate of 6% per annum, within one month from the date of this order.

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In the result, the following order is passed:

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ORDER

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i. MFA NO.1861/2017 is dismissed.

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ii. MFA NO.1746/2017 is allowed in part .

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iii. The judgment and award dated 09.11.2016 passed in MVC No.325/2014 on the file of the II Additional Small Causes Judge and XXVIII ACMM, Bengaluru, is modified.

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iv. The claimant is entitled to a sum of Rs.22,90,627/- along with interest at 6% p.a., from the date of petition till the date of realization, instead of Rs.11,16,977/granted by the Tribunal.

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v. The appellant/Insurance Company is directed to deposit the enhanced

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HC-KAR

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compensation of Rs.11,73,650/- , along

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with interest at the rate of 6% per annum, within one month from the date of this order.

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vi. On such deposit, the mother of the claimant is permitted to withdraw the entire amount along with interest accrued on it, as she is a natural guardian.

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vii. The Insurance company is directed to deposit 85% of the compensation.

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viii. The amount in deposit shall be transferred to the MACT.

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In view of disposal of the main appeal, pending I.A's stands disposed of.

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Sd/(P SREE SUDHA) JUDGE

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AMA List No.: 1 Sl No.: 9

National Insurance Company Limited v. Master Madhusudan @ Madhu

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National Insurance Company Limited v. Master Madhusudan @ Madhu

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