Karnataka High Court
Maliyamma W/O Hosakerappa vs H. Kumarswamy S/O Hanumanthappa on 22 September, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2023:KHC-D:11114
MFA No. 101945 of 2015
C/W MFA No. 101944 of 2015,
MFA No. 101946 of 2015
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.101945/2015 (MV)
C/W
MISCELLANEOUS FIRST APPEAL NO.101944/2015 (MV)
MISCELLANEOUS FIRST APPEAL NO.101946/2015 (MV)
IN MFA.NO.101945/2015:
BETWEEN:
SMT. MALIYAMMA W/O. HOSAKERAPPA,
AGE: 45 YEARS, OCC: LABOUR/HOUSE WIFE,
R/O: 3RD WARD, CARE OF GOVINDAPPA,
KUDITHINI - POST, TQ AND DIST: BALLARI.
...APPELLANT
(BY SRI MANJUNATH G. PATIL, ADVOCATE)
AND:
1. H. KUMARSWAMY S/O. HANUMANTHAPPA,
AGE: 29 YEARS, OCC: DRIVER OF
Digitally AUTO RICKSHAW NO.KA-35/A-9461,
signed by R/O: #154, AMBEDKAR COLONY,
SUJATA
SUBHASH VADDU-POST, TQ: SANDUR, DIST: BALLARI.
PAMMAR
2. H. UMESH S/O. HANUMANTHAPPA,
AGE: 29 YEARS, OCC: OWNER OF
AUTO RICKSHAW NO.KA-35/A-9461,
R/O: #154, AMBEDKAR COLONY,
VADDU-POST, TQ: SANDUR, DIST: BALLARI.
3. CHOLAMANDALAM GENERAL INSURANCE
COMPANY LIMITED,
BY ITS MANAGER, BALLARI.
...RESPONDENTS
(BY SRI S.S. BETURMATH, ADVOCATE FOR R1 AND R2;
SRI S.K.KAYAKAMATH, ADVOCATE FOR R3.)
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NC: 2023:KHC-D:11114
MFA No. 101945 of 2015
C/W MFA No. 101944 of 2015,
MFA No. 101946 of 2015
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY JUDGMENT & AWARD DATED 01.04.2015, PASSED IN MVC
NO.287/2014, ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL
NO.V, BALLARI, BY ENHANCING THE COMPENSATION AND FIXING
THE LIABILITY ON RESPONDENT NO.3, ETC.,.
IN MFA.NO.101944/2015:
BETWEEN:
PEERA SAB S/O. ALLASAB,
AGE: 29 YEARS, OCC: LECTURER/
HIGH SCHOOL TEACHER,
R/O: H.B.HALLI PRESENTLY
R/O: AT CARE OF HONNUR SAB 19TH WARD,
HUSSAIN NAGAR, BALLARI.
...APPELLANT
(BY SRI MANJUNATH G. PATIL, ADVOCATE)
AND:
1. H. KUMARSWAMY S/O. HANUMANTHAPPA,
AGE: 29 YEARS, OCC: DRIVER OF
AUTO RICKSHAW NO. KA-35/A-9461,
R/O: #154, AMBEDKAR COLONY,
VADDU-POST, TQ: SANDUR, DIST: BALLARI.
2. H. UMESH S/O. HANUMANTHAPPA,
AGE: 29 YEARS, OCC: OWNER OF
AUTO RICKSHAW NO.KA-35/A-9461,
R/O: #154, AMBEDKAR COLONY,
VADDU-POST, TQ: SANDUR, DIST: BALLARI.
3. CHOLAMANDALAM GENERAL INSURANCE
COMPANY LIMITED,
BY ITS MANAGER, BALLARI.
...RESPONDENTS
(BY SRI S.S. BETURMATH, ADVOCATE FOR R1 AND R2;
SRI S.K.KAYAKAMATH, ADVOCATE FOR R3.)
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NC: 2023:KHC-D:11114
MFA No. 101945 of 2015
C/W MFA No. 101944 of 2015,
MFA No. 101946 of 2015
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY JUDGMENT & AWARD DATED 01.04.2015, PASSED IN MVC
NO.286/2014, ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL
NO.V, BALLARI, BY ENHANCING THE COMPENSATION AND FIXING
THE LIABILITY ON RESPONDENT NO.3, ETC.,.
IN MFA.NO.101946/2015:
BETWEEN:
KUMARI SUJATHA D/O. THIPPANNA,
AGE: 19 YEARS, OCC: LABOUR,
R/O: 2ND WARD, CARE OF MALLAYYA,
NEAR JAKKERUBHAVI, KUDITHINI-POST,
BALLARI - TALUK AND DISTRICT.
...APPELLANT
(BY SRI MANJUNATH G. PATIL, ADVOCATE)
AND:
1. H. KUMARSWAMY S/O. HANUMANTHAPPA,
AGE: 29 YEARS, OCC: DRIVER OF
AUTO RICKSHAW NO. KA-35/A-9461,
R/O: #154, AMBEDKAR COLONY,
VADDU-POST, TQ: SANDUR, DIST: BALLARI.
2. H. UMESH S/O. HANUMANTHAPPA,
AGE: 29 YEARS, OCC: OWNER OF
AUTO RICKSHAW NO.KA-35/A-9461,
R/O: #154, AMBEDKAR COLONY,
VADDU-POST, TQ: SANDUR, DIST: BALLARI.
3. CHOLAMANDALAM GENERAL INSURANCE
COMPANY LIMITED,
BY ITS MANAGER, BALLARI.
...RESPONDENTS
(BY SRI S.S. BETURMATH, ADVOCATE FOR R1 AND R2;
SRI S.K.KAYAKAMATH, ADVOCATE FOR R3.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY JUDGMENT & AWARD DATED 01.04.2015, PASSED IN MVC
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NC: 2023:KHC-D:11114
MFA No. 101945 of 2015
C/W MFA No. 101944 of 2015,
MFA No. 101946 of 2015
NO.288/2014, ON THE FILE OF MOTOR ACCIDENT CLAIMS TRIBUNAL
NO.V, BALLARI, BY ENHANCING THE COMPENSATION AND FIXING
THE LIABILITY ON RESPONDENT NO.3, ETC.,.
THESE APPEALS COMING ON FOR FUTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These three appeals are filed by the claimants challenging the judgment and award dated 01.04.2015, passed by the tribunal, in MVC No.287, 286 and 288 of 2014, respectively, seeking for enhancement of compensation and questioning the liability fastened on the owner of the offending vehicle.
2. The factum of accident and claimants sustaining injuries in the said accident are not in dispute in these appeals. The disputed point is whether the insurance company is liable to pay compensation or not.
3. Heard the arguments and perused the records.
4. In the present case the offending vehicle is passenger carrying auto rickshaw. Thus, it is a light motor vehicle (transport). But the driver was holding driving -5- NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 licence to drive the light motor vehicle (non transport). Therefore there is no endorsement (transport) in the said LMV licence. The question involved is no more res-integra in view of the decision of the Hon'ble Supreme Court in the case of Mukund Dewangan vs. Oriental Insurance Company Limited, (2017) 14 Supreme Court Cases 663, wherein it is held that a person who is holding driving licence to drive LMV (non transport) can also drive LMV (transport). Therefore this is not a fundamental breach so as to absolve the insurance company to pay compensation. Therefore, the insurance company is liable to pay the compensation.
5. The learned counsel for the insurance company submitted that permit is given to drive within the town limits of Sandur town. But the accident was caused at Toranagallu, 20 kilometers away from Sandur. Therefore the accident was caused at the place other than the permitted route. Therefore submitted, the insurance company is not liable to pay compensation. -6-
NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015
6. The issue involved is no more res-integra in view of the decision of this Court (Bengaluru Bench) in MFA No.2526/2018 connected with another case, between The Manager, Oriental Insurance Company Ltd., vs. Melappa S/o.Hatti Thimmappa, decided on 22.07.2022. The defence available to the insurance company as per sub-section (2) of section 149 of M.V.Act is that when the vehicle is used for other than the purpose not allowed by permit, then the insurance company is absolved. Here for what purpose the permit is given to auto rickshaw, for the same purpose the auto rickshaw is used. The only deviation is, the auto rickshaw has plied other than the route permitted, but this is not deviation of purpose; it is only a deviation of route. Hence, for what purpose a permit is given to auto rickshaw is for carrying passengers; for the same purpose the auto rickshaw is used for carrying passengers. Therefore only deviation of route is occurred, but not deviation of purpose. Therefore the insurance company cannot be absolved on this ground. -7-
NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 Therefore, the insurance company is liable to pay compensation.
MFA No.101945/2015 (MVC No.287/2015)
7. In the present case from the medical evidence on record it is proved that the claimant has sustained fracture of right foot, 4th and 5th metatarsal bones and 5th proximal phalanx and fracture of calcanium. The tribunal has awarded a global compensation of Rs.50,000/-.
8. Considering the nature of injuries sustained, the compensation awarded by the tribunal appears to be on lesser side. Hence, the same is required to be enhanced. Therefore, a compensation of Rs.35,000/- is awarded under the head injuries, pain and suffering. The claimant has not produced any evidence regarding medical expenses and hospital charges. However, considering the injuries sustained, a compensation of Rs.5,000/- is awarded under the head medical expenses and incidental -8- NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 charges like food, nourishment, conveyance, attendant charges etc.,. The doctor has deposed that the claimant has suffered 40% of physical disability towards whole body. Considering the nature of injuries sustained, disability is to be considered at 15% to the whole body. The accident is of the year 2013. Therefore, notional income would be Rs.7,000/- per month as recognized by the Karnataka State Legal Service Authority. The claimant was aged 43 years at the time of accident. Therefore, appropriate applicable multiplier is 14. Therefore loss of future earning capacity due to disability is hereby re-assessed and quantified as Rs.1,76,400/- (Rs.7,000 x 15% x 12 x 14).
9. Further, a compensation of Rs.14,000/- is awarded towards loss of income during laid up and treatment period for a period of two months and a compensation of Rs.30,000/- is awarded towards loss of amenities.
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015
10. Thus, the claimant is entitled for total compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards injuries, pain and 35,000
suffering.
2. Medical expenses and incidental 5,000
charges like food, nourishment,
conveyance, attendant charges
etc.,.
3. Towards loss of amenities. 30,000
4. Towards loss of income during 14,000
laid up period and medical
treatment period.
5. Towards loss of future earning 1,76,400
capacity.
Total: 2,60,400
11. Therefore, the claimant is entitled for total compensation of Rs.2,60,400/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.50,000/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 MFA No.101944/2015 (MVC No.286/2015).
12. In the present case the claimant has suffered acute traumatic fracture dislocation and the claimant has suffered paraplegia. The half body functions below the waist has completely affected rendering of functionless. Therefore the claimant is suffering paraplegia due to the accidental injuries. The doctor has adduced evidence that the claimant has suffered 80% of physical disability to the whole body. Since the claimant has sustained paraplegia it is to be considered as 100% functional disability.
13. The claimant was a teacher in Chaitanya E-Techno School and was drawing a salary of Rs.12,000/- per month. Ex.P.10 is the salary certificate issued by the said school. PW.7 is the head of the school stated that the claimant was working as a teacher in the said school. It is claimed that the claimant has left the said school and he joined services in Jindal Vidya Mandir, Toranagallu as a teacher. Ex.P.9 is the letter issued by the Jindal Vidya Mandir. Therefore, obviously a teacher leaves one school
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 and joins the other school for higher salary. Therefore the salary is to be considered as Rs.12,000/- per month plus PF. Therefore considering the profession of the claimant as a teacher, he was working in Chaitanya E-Techno School, wherein he was earning Rs.12,000/- per month but later he joined Jindal Vidya Mandir School for a higher salary, therefore the gross income would be taken at least of Rs.13,000/- per month.
14. As per the age group mentioned in National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 Supreme Court Cases 680, and as per the Division Bench judgment of this Court in New India Assurance Company Vs. Abdul S/o Mehaboob Tahasildar in MFA No.103807/2016 C/w. MFA Nos.103835/2016 & 103807/2018 and as per the judgment of the Hon'ble Supreme Court in the case of Sidram vs. Divisional Manager, United India Insurance Company Limited and another reported in (2023) 3 SCC 439, even in the case of injuries, certain
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 income is to be added towards loss of future prospects in life. The claimant was aged 27 years at the time of accident. Considering the age of the claimant, 40% of the income is to be added towards loss of future prospects in life. The appropriate applicable multiplier is 17.
15. Therefore, loss of future earning capacity due to disability including loss of future prospects in life is hereby re-assessed and quantified as Rs.37,12,800/- (Rs.13,000 + 40% x 12 x 17).
16. Further, a compensation of Rs.1,00,000/- is awarded towards injury, pain and suffering. The claimant has spent Rs.39,406/- towards medical expenses and the hospital charges. Therefore, a compensation of Rs.40,000/- is awarded under the said head.
17. Further, a compensation of Rs.78,000/- (Rs.13,000 x 6) is awarded towards loss of income during laid up and treatment for a period of six months. A compensation of Rs.1,00,000/- is awarded towards loss
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 of amenities. Further a compensation of Rs.50,000/- is awarded towards future medical expenses.
18. The claimant is completely bed ridden at the age of 27 years. As he is suffering from paraplegia, the claimant is constrained to depend on other person throughout his life. The attendant may be a family member or any other person. Even if the attendant is a family member, he or she has to lose their income towards attending the claimant. Therefore towards attendant charges and for other incidental expenses if only Rs.100/- per day is considered, then it would be Rs.3,000/- per month and Rs.36,000/- per year. If it is considered for minimum 15 years, though he has to depend upon throughout his life, then it comes to Rs.5,40,000/- (Rs.36,000 x 15 years). The same is awarded towards attendant charges.
19. The claimant has lost marriage prospects due to paraplegia. Accordingly a compensation of Rs.1,00,000/- is awarded towards loss of marriage prospects in life.
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015
20. Thus, the claimant is entitled for total compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Injuries, pain and suffering. 1,00,000
2. Medical expenses and hospital 40,000
charges.
3. Loss of amenities. 1,00,000
4. Towards loss of income during 78,000
laid up period and medical
treatment period.
(Rs.13,000 x 6)
5. Loss of marriage prospects. 1,00,000
6. Attendant charges. 5,40,000
7. Future medical expenses. 50,000
8. Loss of future earning capacity. 37,12,800
(Rs.13,000 + 40% x 12 x 17)
Total: 47,20,800
21. Therefore, the claimant is entitled for total compensation of Rs.47,20,800/-, along with interest at the rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.13,83,406/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 MFA No.101946/2015 (MVC No.288/2014).
22. As per the medical evidence on record it is proved that the claimant has suffered fracture of ring finger, middle finger and little finger, fracture of distal phalanx and fracture of right hand shoulder clavicle. The tribunal has awarded a global compensation of Rs.63,500/-.
23. The doctor has stated that the claimant has suffered 25% of permanent physical disability. The claimant is aged 18 years old and the fracture injury certainly causes disability and hamper in day-to-day activities. Therefore, it is just and proper to consider it 10% as functional disability affecting the career. The accident is caused in the year 2013. Therefore notional income would be Rs.7,000/- per month as recognized by the Karnataka State Legal Service Authority. The claimant was aged 18 yeas. Hence the applicable appropriate multiplier is 18. Therefore, loss of future income due to
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 disability is hereby re-assessed and quantified as Rs.1,51,200/- (Rs.7,000 x 10% x 12 x 18).
24. Further, a compensation of Rs.30,000/- is awarded towards injuries pain and suffering. A compensation of Rs.5,000/- is awarded towards medical expenses and incidental charges like food, nourishment, conveyance, attendant charges etc.,. A compensation of Rs.25,000/- is awarded towards loss of amenities.
25. Thus, the claimant is entitled for total compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Injuries, pain and suffering. 30,000
2. Medical expenses and incidental 5,000
charges like food, nourishment,
conveyance, attendant charges
etc.,.
3. Towards loss of amenities. 25,000
4. Towards loss of future earning 1,51,200
capacity.
Total: 2,11,200
26. Therefore, the claimant is entitled for total compensation of Rs.2,11,200/-, along with interest at the
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015 rate of 6% p.a. from the date of filing of the petition till realization, as against Rs.63,500/- awarded by the Tribunal. The Insurance Company is directed to deposit the compensation within eight weeks from the date of receipt of a certified copy of this judgment.
27. In the result, I proceed to pass the following:
ORDER
i) The appeals in MFA Nos.101945 and 101946 of 2015 are allowed in part. The appeal in MFA No.101944/2015 is allowed.
ii) The judgment and award dated 01.04.2015, passed by the MACT-V, Ballari, in MVC Nos.287, 286 and 288 of 2014, respectively, stands modified.
iii) The appellant/claimant in MFA No.101945/2015 is entitled for total compensation of Rs.2,60,400/- as against Rs.50,000/- awarded by the tribunal.
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NC: 2023:KHC-D:11114 MFA No. 101945 of 2015 C/W MFA No. 101944 of 2015, MFA No. 101946 of 2015
iv) The appellant/claimant in MFA No.101944/2015 is entitled for total compensation of Rs.47,20,800/- as against Rs.13,83,406/- awarded by the tribunal.
v) The appellant/claimant in MFA No.101946/2015 is entitled for total compensation of Rs.2,11,200/- as against
Rs.63,500/- awarded by the tribunal.
vi) The claimants are entitled for compensation along with interest at the rate of 6% p.a. from the date of petition till realization.
vii) The insurance company shall deposit the compensation amount within a period of eight weeks from the date of receipt of a copy of this judgment.
viii) Send back the trial Court records along with a copy of this judgment.
ix) No order as to costs.
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NC: 2023:KHC-D:11114
MFA No. 101945 of 2015
C/W MFA No. 101944 of 2015,
MFA No. 101946 of 2015
x) Draw award accordingly.
SD/-
JUDGE
MRK
List No.: 2 Sl No.: 45
CT-ASC