Karnataka High Court
The Divisional Manager vs Kum Akkamma on 4 July, 2014
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 04TH DAY OF JULY 2014
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
M. F. A. NO.20471/2008 C/W
M.F.A.No.20125/2008 (MV)
IN MFA NO 20471 OF 2008
BETWEEN
THE DIVISIONAL MANAGER,
NATIONAL INSURANCE COMPANY LTD.,
SUJATA COMPLEX,
HUBLI ..... APPELLANT
(BY SRI R. S. ARANI, ADV.)
AND
1. KUM AKKAMMA
D/O UMESH LAMANI,
AGE: 12 YEARS, OCC: STUDENT,
R/O NEHRUNAGAR, HUBLI
REPRESENTED BY HER NATURAL
GUARDIAN FATHER
UMESH SHIVAJI LAMANI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. NEHRUNAGAR, HUBLI.
:2:
2. DAYANAND G RAYAKAR,
AGE: 49 YEARS, OCC: OWNER OF
MAHINDRA JEEP NO.KA-31/M-506,
R/O NEHRU NAGAR,
MUNDAGOD ..... RESPONDENTS
(BY SRI DINESH M KULKARNI ADV. FOR R-1
R-2 SERVED)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:23/4/2008 PASSED
IN MVC NO.631/2004 ON THE FILE OF THE FIRST
ADDL.CIVIL JUDGE(SR.DN) & ADDL.MACT, HUBLI,
AWARDING COMPENSATION OF RS.75,000/- WITH
INTEREST AT THE RATE OF 6% P.A. FROM THE DATE
OF PETITION TILL DEPOSIT.
IN MFA NO 20125 OF 2008
BETWEEN
KUMARI AKKAMMA D/O UMESH LAMANI,
AGE: 15 YEARS, OCC: STUDENT,
R/O NEHRU NAGAR, HUBLI
REPRESENTED BY NATURAL GUARDIAN FATHER
UMESH S/O SHIVAJI LAMANI,
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O NEHRU NAGAR, HUBLI
..... APPELLANT
(BY SRI DINESH M KULKARNI, ADV.)
AND
1. DAYANAND G RAYAKAR,
AGE: 48 YEARS, OCC: OWNER OF MAHINDRA
JEEP NO.KA-31/M-1506,
:3:
R/O. NEHRU NAGAR, MUNDGOD (U.K.)
2. THE DIVISIONAL MANAGER,
NATIONAL INSURANCE CO. LTD.,
SUJATA COMPLEX, P B ROAD,
HUBLI
..... RESPONDENTS
(BY SRI R.S. ARANI, ADV. FOR R-2
R1-SD)
MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:23/4/2008 PASSED
IN MVC NO.631/2004 ON THE FILE OF THE FIRST
ADDL.CIVIL JUDGE(SR.DN) & ADDL.MACT, HUBLI,
PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
THESE APPEALS COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though these appeals are listed for admission, with the consent of learned counsel appearing for the parties, they are taken up for final hearing.
2. Both these appeals under Section 173(1) of the Motor Vehicles Act are directed against the judgment and award dated 23.04.2008, passed in :4: M.V.C. No.631/2004, on the file of I Addl. Civil Judge (Sr.Dn.) and Addl. M.A.C.T., Hubli.
3. The brief facts which gave rise to these appeals are as under:
On 11.06.2004, at about 12.40 hours, the claimant was travelling in a jeep bearing registration No.KA-31/M-1506. While she was getting down from the said jeep, it was moved all of a sudden by its driver.
As a result of which, she fell down and sustained grievous injuries on her face for which she treated in S.D.M. Hospital, Dharwad. In spite of best treatment, she is left with certain amount of disability. Therefore, she filed a claim petition under Section 166 of M.V.Act through her father claiming compensation of Rs.2,50,000/- before the Tribunal.
4. The claim petition was contested by the appellant-insurance company. It came for consideration before the Tribunal and the Tribunal :5: upon hearing both the learned counsel appearing for the parties and upon appreciation of material placed on record has awarded a total compensation of Rs.75,000/- directing the appellant-insurance company to indemnify the respondent No.1-owner of the jeep. Aggrieved by the judgment and award, the appellant- insurance company filed M.F.A.No.20471/2008 on the ground that the appellant-claimant was travelling in the jeep as fare paying passenger. Whereas the appellant- claimant filed M.F.A.No.20125/2008 for enhancement of the compensation on the ground that the compensation awarded by the Tribunal is inadequate and not based on accepted norms.
5. I have heard both the learned counsel appearing for the appellant-insurance company and claimant. Perused the records.
6. Counsel for the appellant-insurance company would submit that at the time of accident, the :6: claimant was travelling in a private jeep as a fare paying passenger and as such the insurance company cannot be held liable to indemnify the owner, since the owner of the jeep committed a breach of policy conditions.
7. The counsel for the claimant on the other hand would submit that the Tribunal upon proper appreciation of the material placed on record has rightly directed the insurance company to satisfy the award. He further submits that the compensation awarded by the Tribunal is on the lower side and it requires to be enhanced.
8. Having heard the submissions made by both the learned counsel and upon going through the records, the following points arise for my determination:
1) Whether the finding recorded by the Tribunal as to the liability needs interference by this Court?:7:
2) Whether the compensation awarded by the Tribunal is just and reasonable?
9. It is seen from Ex.P-7 the medical certificate that in the said accident, the claimant sustained the fracture of right parasymphysis of lower jaw and fracture of both condyles of lower jaw, lost upper front teeth number 11 and 12 and loosening of upper front tooth number 21.
10. Having regard to the nature of injuries, the number of injuries and the treatment, an amount of Rs.30,000/- awarded by the Tribunal under the head injury, pain and suffering appears to be on the lower side. Hence, I deem it just and proper on my part to award a compensation of Rs.40,000/- under the head injury, pain and suffering as against Rs.30,000/- awarded by the Tribunal.
11. So far as the medical expenses is concerned, the Tribunal has awarded a sum of Rs.10,000/- having :8: regard to the medical bills produced by the claimant as such no interference is called for so far as the said amount awarded by the Tribunal is concerned.
12. Regarding the attendant charges, the Tribunal has not awarded any amount. It is a fact that she sustained number of injuries and she was a minor girl at the time of accident. She was in need of services of an attendant at least for a period of one month having regard to the nature of injuries suffered by her. So an amount of Rs.3,000/- is awarded under the head attendant charges at the rate of Rs.100/- per day for a period of one month.
13. The Tribunal has rightly awarded a sum of Rs.5,000/- under the head conveyance and nourishment and no interference is called for.
14. So far as the future loss of earnings on account of disability is concerned, the Tribunal has :9: awarded Rs.20,000/- and Rs.10,000/- towards loss of amenities. As on the date of accident, the claimant was hardly aged about 11 years. The injuries sustained by the claimant on her face and whatever disability suffered by her on account of said injury will not come in the way of her future earning capacity. As such the Tribunal has rightly awarded a sum of Rs.20,000/- under the head disability. However, a sum of Rs.10,000/- awarded under the head loss of amenities seems to be on the lower side. Since she lost number of teeth in the accident, an amount of Rs.20,000/- would be just and proper compensation under the head loss of amenities.
15. Thus, the appellant-claimant has been held to be entitled for a total compensation of Rs.98,000/- as against Rs.75,000/- awarded by the Tribunal. There shall be an enhancement of Rs.23,000/-. : 10 :
16. The appellant-insurance company has challenged the liability fastened on it to pay the compensation awarded by the Tribunal. Admittedly and it is also borne out from the records that the claimant was travelling in a private jeep as fare paying passenger in violation of the policy conditions. Under such circumstances, the Tribunal ought not to have directed the insurance company to satisfy the award. As such the award to the extent directing the insurance company to indemnify the owner of the jeep is liable to be set aside. Accordingly, I pass the following :
ORDER
(i) M.F.A.No.20471/2008 filed by the appellant-insurance company and M.F.A.No. 20125/2008 filed by the appellant- claimant are partly allowed.
(ii) The judgment and award dated
23.04.2008, passed in M.V.C.
No.631/2004 by the I Addl. Civil Judge (Sr.Dn.) and Addl. M.A.C.T., Hubli stands : 11 : modified. The appellant-claimant has been awarded an enhanced compensation of Rs.23,000/- over and above the compensation awarded by the Tribunal together with 6% interest per annum thereon from the date of petition till the date of realisation.
(iii) The insurance company is exonerated from its liability to pay the compensation and the owner of the vehicle respondent No.2-Dayanand G Raikar is directed to pay the compensation amount to the claimant.
(iv) The claim petition as against the appellant-National Insurance Company Ltd., is hereby dismissed.
(v) The owner of the vehicle is hereby
directed to pay the enhanced
compensation amount together with
interest within a period of 30 days from the date of receipt of copy of this order.
In the event of deposit, the entire amount shall be invested in Fixed Deposit in any : 12 : Nationalised Bank of the choice of her guardian in the name of the claimant Akkamma for a period of 2 years or till she attains the age of majority, whichever is earlier.
The amount in deposit shall be refunded to the appellant-National Insurance Company Ltd.
Sd/-
JUDGE Naa