Surabi Vs M. Naveen Kumar

THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, AGAINST THE JUDGMENT AND AWARD DATED 18.06.2019 PASSED IN MVC NO.1064/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, TIPTUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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This appeal is filed by the minor injured seeking enhancement of compensation being aggrieved by the judgment and award dated 18.06.2019 passed in MVC No.1064/2014 by the Court of Senior Civil Judge and J.M.F.C, at Tiptur, (for short, ‘Tribunal’).

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Though this appeal is listed for admission, with the consent of learned counsel for the parties, it is taken up for final disposal.

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HC-KAR

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Sri.Shantharaj.K, learned counsel for the appellant submits that the Tribunal has committed a grave error in awarding total compensation of Rs.70,000/- to the injured by ignoring the oral evidence of the mother of the injured as well as evidence of the C.W.1, who is a treated Doctor. It is submitted that the treated Doctor has clearly opined that the appellant has sustained disability to the extent of 33% to the right lower limb and 11% to the whole body and there is no such concept of bifurcation of the disability and the disability assessed by the Doctor at 33% is required to be assessed in the case on hand. It is further submitted that the Hon'ble Supreme Court in the recent decision in the case of Hitesh

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Nagjibhai Patel V/s Bababhai Nagibhai Rabari & Anr in Civil Appeal No.10278/2025 reported in (2025 INSC

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1070), Live Law(SC) 871 held that the compensation in the case of minor is required to be assessed by considering the minimum wages of the relevant year and required to award compensation under the head of loss of future income due to disability and hence, he seeks to award compensation under the head of loss of future income due to the disability. It is also submitted that the appellant is also entitled to compensation

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HC-KAR

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under the conventional heads like pain and suffering, loss of amenities, loss of income of the parents during the treatment period and food, nourishment, attendant charges etc., hence he seeks to re-assess the compensation by appreciating the evidence available on record. It is also contended that the Tribunal has erred in ignoring the principle of pay and recover as the driver did not possess a valid driving license and the Tribunal ought to have directed the Insurance Company to pay the amount and recover the same from the owner of the offending vehicle. Hence, he seeks to allow the appeal.

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Per contra, Smt.Geetha Raj, learned counsel for respondent No.2 opposed the appeal and submits that the Tribunal taking note of the evidence of the mother and other documentary evidence has recorded the finding that the bills calculated by the appellants are incorrect and the medical bills are required to be paid only to the extent of 40% and awarded just compensation of Rs.70,000/which needs no enhancement. Hence, she seeks to dismiss the appeal.

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I have heard the arguments of the learned counsel for the appellant, learned counsel for the respondent No.2 and

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HC-KAR

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meticulously perused the material available on record including the Tribunal records.

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The only point that would arise for consideration in this appeal is :

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" Whether the judgment and award passed by the

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Tribunal calls for any interference?"

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The above point is answered in the affirmative for

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the following reasons:

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The undisputed facts between the parties are that the appellant was a minor at the time of accident and she was aged about 7 years. She met with an accident on 29.04.2012. The Tribunal considering the evidence on record, recorded the finding with regard to the negligence and the liability and as per the said finding, the insurance company is liable to pay the compensation. In order to prove the claim, the mother of the claimant examined herself as P.W.1, got marked the documents as Ex.P.1 to Ex.P.32. Respondent examined as R.W.1 and got marked Ex.R1 to Ex.R2. The claimant also examined Doctor A.Chetan, Orthopedic Surgeon of the Hosmat Hospital, Bengaluru on Court commission. On perusal of the oral testimony of P.W.1 and C.W.1, it is evident that the

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HC-KAR

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appellant/minor was provided treatment at Hosmat Hospital, Bengaluru and she was hospitalized on 02.05.2012 as inpatient. As per the oral testimony of C.W.1 and wound certificate at Ex.P.3, discharge summary at Ex.P.4 & Ex.P.5, the appellant sustained fracture of right femur and she was operated on 03.05.2012 and she was discharged from the said hospital on 05.05.2012 and thereafter, again readmitted in the hospital on 22.04.2013 for removal of nails of the right femur and surgery was performed on 23.04.2013 and thereafter, she was discharged on the next day i.e., on 24.04.2013. Considering the nature of injuries suffered, the treated Doctor assessed the disability of the injured to the extent of 33% to the right lower limb and to the whole body at 11%. Though, the argument is advanced by learned counsel for the appellant that there cannot be any classification of disability to the whole body to the particular limb. In my considered view, in the absence of any second opinion with regard to the said aspect, the treated Doctor having assessed the disability at 11% to the whole body, I am of the view that if the same is accepted, ends of justice would be met. The Hon'ble Supreme Court in the case of Hitesh N Patel referred supra at paragraph No.16 and 17

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HC-KAR

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held that in case of minor, either death or injury, the Tribunal and the High Court is required to assess the disability and award compensation on the head of loss of future income by considering the minimum wage for the relevant year. In view of the aforesaid decision, the income of the minor-claimant is assessed at Rs.7,000/- per month by placing reliance on the chart prepared by the KSLSA. Having taken note of the aforesaid decision, the appropriate multiplier would be 18. The Hon’ble Supreme Court in the aforesaid case, where the injured was 8 years, the multiplier was applied as 18 taking clue from the said judgment, in the case on hand, the injured is 7 years old at the time of accident, hence, the multiplier is 18 and the disability would be to the extent of 11% as per the evidence of C.W.1. Furthermore, I am of the considered view that the claimant is also required to be granted compensation under other conventional heads. The finding of the Tribunal with regard to the liability is unaltered however, 2^nd respondent - Insurance company is directed to pay the compensation amount and recover the said amount in view of the settled position of law. Thus, the appellant would be entitled to modified compensation as under:

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HC-KAR

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HEADS	AMOUNT (in Rs.)
Medical bills	Rs.40,000/-
Pain & suffering	Rs.40,000/-
Loss of amenities	Rs.40,000/-
Loss of earning of parents	Rs.21,000/-
Loss of future income due to disability (7,000 x 12 x 18 x 11%=1,66,320/-)	Rs.1,66,320/-
Miscellaneous expenses like loss of conveyance, food and nourishment Total	Rs.15,000/- Rs.3,22,320/-

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Thus, the appellant-claimant shall be entitled to a total compensation of Rs.3,22,320/- as against Rs.70,000/awarded by the Tribunal.

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In the result, this Court proceeds to pass the

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following:

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ORDER

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a) Appeal is allowed in part .

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b) The impugned judgment and award dated 18.06.2019 passed by the Tribunal is modified to an extent that the appellantclaimant would be entitled to total compensation of Rs.3,22,320/- as against Rs.70,000/- awarded by the Tribunal.

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HC-KAR

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c) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realisation.

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d) The liability on the respondent No.1 is upheld. The respondent No.2 is directed to pay the compensation to the claimant and recover the said amount from the respondent No.1 - owner of the vehicle.

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e) The entire amount shall be released in favour of the claimant.

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f) The respondent No.2 shall deposit the enhanced compensation amount with accrued interest before the Tribunal within a period of six weeks from the date of receipt of certified copy of this judgment.

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g) The rest of the judgment and award of the Tribunal with respect to apportionment, deposit and release shall remain unaltered.

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h) Registry shall transmit the records to the Tribunal forthwith.

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i) Draw modified award accordingly.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RHS

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List No.: 1 Sl No.: 8

Surabi v. M. Naveen Kumar

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Surabi v. M. Naveen Kumar

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