Karnataka High Court
Smt K S Suma vs Sri Mohan Kumar on 4 January, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 8227 of 2016 C/W
MFA No. 8225 of 2016
MFA No. 8226 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 8227 OF 2016 (MV-I)
C/W
MISCELLANEOUS FIRST APPEAL NO. 8225 OF 2016 (MV-I)
MISCELLANEOUS FIRST APPEAL NO. 8226 OF 2016 (MV-I)
IN MFA NO.8227/2016
BETWEEN:
MASTER H ANIRUDH
S/O A V HARISH
Digitally signed
by JAI JYOTHI J AGED ABOUT 12 YEARS,
Location: HIGH
COURT OF STUDENT, SINCE MINOR
KARNATAKA
REPRESENTED BY HIS
MOTHER & NATURAL GUARDIAN
SMT K S SUMA C/O A.V. HARISH
AGED 35 YEARS,
R/AT MANJUNATH NILAYA,
C/O SHIVARAME GOWDA
1ST CROSS, SHIVANANJAPPA LAYOUT
MANDYA 571401.
...APPELLANT
(BY SRI. RAJASHEKAR M.,ADVOCATE)
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MFA No. 8227 of 2016 C/W
MFA No. 8225 of 2016
MFA No. 8226 of 2016
AND:
1. SRI MOHAN KUMAR
S/O BASAVARAJ
AGED ABOUT 29 YEARS,
R/O CHATACHATANAHALLI VILLAGE,
HALEBEEDU HOBLI,
BELUR TALUK,
HASSAN DISTRICT 573121.
OWNER CUM DRIVER OF TATA ACE
BEARING NO KA-46-2339
2. MANAGER
M/S NATIONAL INSURANCE
COMPANY LIMITED,
DIVISION OFFICE-II
RASIK CHAMBERS
OPP: CENTRAL MARKET
MANGALORE 575001.
(POLICY VALID FROM
25-05-2010 TO 24-05-2011)
...RESPONDENTS
(BY SRI. GIRISH B. BALADARE, ADVOCATE FOR R1, SRI. A N
KRISHNA SWAMY, ADVOCATE FOR R2,)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:29.04.2016 PASSED IN MVC
NO.349/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 8227 of 2016 C/W
MFA No. 8225 of 2016
MFA No. 8226 of 2016
IN MFA NO.8225/2016
BETWEEN:
SRI A V HARISH
S/O LATE A VENKATASUBBAIAH,
AGED ABOUT 45 YEARS,
DAFFTAR & CTO B,
WORKING IN PUNJAB NATIONAL BANK,
R/AT MANJUNATH NILAYA,
C/O SHIVARAME GOWDA,
IST CROSS, SHIVANANJAPPA LAYOUT,
MANDYA-571401
...APPELLANT
(BY SRI. RAJASHEKAR M., ADVOCATE)
AND:
1. SRI MOHAN KUMAR
S/O BASAVARAJ,
AGED ABOUT 29 YEARS,
R/O CHATACHATANAHALLI VILLAGE,
HALEBEEDU HOBLI,
BELUR TALUK
HASSAN DISTRICT-573121
OWNER CUM DRIVER OF TATA ACE
BEARING NO.KA-46-2339
2. MANAGER
M/S NATIONAL INSURANCE
COMPANY LIMITED
DIVISIONAL OFFICE-II
RASIK CHAMBERS,
OPP:CENTRAL MARKET,
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MFA No. 8227 of 2016 C/W
MFA No. 8225 of 2016
MFA No. 8226 of 2016
MANGALORE-575001.
(POLICY VALID FROM
25/05/2010 TO 24/05/2011)
...RESPONDENTS
(BY SRI. GIRISH B. BALADARE, ADVOCATE FOR R1, SRI. A N
KRISHNA SWAMY, ADVOCATE FOR R2.,)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:29.04.2016 PASSED IN MVC
NO.347/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
IN MFA NO.8226/2016
BETWEEN:
SMT K S SUMA
W/O A V HARISH,
AGED ABOUT 35 YEARS,
TEACHER, WORKING IN GOVERNMENT
PRIMARY SCHOOL,
R/AT MANJUNATH NILAYA,
C/O SHIVARAME GOWDA,
IST CROSS, SHIVANANJAPPA LAYOOUT,
MANDYA-571401.
...APPELLANT
(BY SRI. RAJASHEKAR M., ADVOCATE)
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MFA No. 8227 of 2016 C/W
MFA No. 8225 of 2016
MFA No. 8226 of 2016
AND:
1. SRI MOHAN KUMAR
S/O BASAVARAJ,
AGED ABOUT 29 YEARS,
R/O CHATACHATANAHALLI VILLAGE,
HALEBEEDU HOBLI,
BELUR TALUK
HASSAN DISTRICT-573121
OWNER CUM DRIVER OF TATA ACE
BEARING NO.KA-46-2339
2. MANAGER
M/S NATIONAL INSURANCE
COMPANY LIMITED
DIVISIONAL OFFICE-II
RASIK CHAMBERS,
OPP:CENTRAL MARKET,
MANGALORE-575001
(POLICY VALID FROM
25/05/2010 TO 24/05/2011)
...RESPONDENTS
(BY SRI. GIRISH B BALADARE, ADVOCATE FOR R1, SRI. A N
KRISHNA SWAMY, ADVOCATE FOR R2.)
THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED:29.04.2016 PASSED IN MVC
NO.348/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MACT, BELUR, PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
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MFA No. 8227 of 2016 C/W
MFA No. 8225 of 2016
MFA No. 8226 of 2016
THESE APPEALs, COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are filed under Section-173(1) of the Motor Vehicles Act 1988 (hereinafter referred to as 'MV Act' for brevity) by the appellants-claimants calling in question the judgment and award dated 29.04.2016, passed in M.V.C.No.347, 348/2015 and 349/2015, on the file of the Senior Civil Judge, JMFC And Motor Accident Claims Tribunal, Belur, (hereinafter referred to as 'the Tribunal' for brevity), seeking enhancement of the compensation and questioning the liability to pay the compensation on the owner of the offending Tata Ace vehicle.
BRIEF FACTS:
2. On 12.05.2011 at about 7.15 p.m., while the appellants - claimants were travelling in their Maruthi 800 -7- MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016 Car bearing No.CKH-1262. On Hassan-Belur road near Kalkere Gadi slowly and cautiously observing all traffic rules, the driver of the offending vehicle Tata Ace bearing No.KA-46-2339, drove the vehicle in a rash and negligent manner from the opposite direction and dashed against the car of the appellant-claimants and caused the accident.
3. Hence, a claim petition was filed by the appellants-claimants under Section-166 of the M.V. Act, claiming compensation for the injuries suffered in the accident. The Tribunal on appreciating the materials on record, allowed the claim petitions in part, and awarded compensation along with interest at 6% per annum from the date of petition till the date of realisation. The Tribunal fastened the liability to pay the compensation on the owner of the offending Tata Ace vehicle, liable to pay the compensation.-8-
MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016
4. Heard arguments of the learned counsel for the appellants-claimants and the learned counsel for respondents and perused the materials on record. REGARDING LIABILITY:
5. In the present case, undisputably the offending vehicle Tata Ace bearing No.KA-46-2339 which is a Light Motor Vehicle (hereinafter referred to as 'LMV' for brevity) has caused the accident. The class of the vehicle involved in the accident is not disputed. This Tata Ace vehicle is a LMV (Transport). The driver of the offending vehicle was holding a valid Driving License to drive a LMV (Non- Transport). The Tribunal by assigning reason that the driver was holding Driving License to drive LMV (Non- Transport), therefore, he is not competent to drive LMV(Transport). Hence, exonerated the insurance -9- MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016 company and fastened liability on the owner of the Tata Ace vehicle.
6. The issue involved in this regard is no more res- integra, in view of the judgment of the Hon'ble Apex Court in the case of MUKUND DEWANGAN Vs. ORIENTAL INSURANCE COMPANY LIMITED1. Therefore, by following the ratio laid down by the Hon'ble Apex Court in the above judgment, a person who is holding Driving License to drive LMV(Non-Transport) is also competent to drive LMV(Transport), for which no such separate endorsement for transport is necessary. Therefore, fundamental infraction is not proved. Therefore, the insurance company is liable to indemnify the owner of the Tata Ace bearing No.KA-46-2339 vehicle and pay compensation to the claimants. Therefore in this regard 1 (2017) 14 SCC 663
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016 the judgment and award passed by the Tribunal is modified.
REGARDING QUANTUM OF COMPENSATION:
(i) MFA NO.8227/2016 (MVC No.349/2015)
7. In the present case, the claimant is eleven years old student and awarded global compensation of Rs.5,000/-. The claimant had suffered bleeding injuries and incised wound of the right nose and they are simple in nature. For the injuries sustained, the claimant must have taken treatment and had spent amount towards medical expenses and had suffered pain and inconvenience, discomfort. Therefore, the global compensation awarded of Rs.5,000/- is found to be on lesser side. Therefore, the same is enhanced to Rs.20,000/-. Therefore, the appeal is liable to be allowed in part.
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016
(ii) MFA 8225/2016 (MVC NO.347/2015) :
8. In the present case, the Tribunal has awarded compensation as follows:
Pain and Suffering : Rs. 30,000/-
Medical Expenses : Rs. 77,419/-
Food, Nourishment, Transportation : Rs. 20,000/-
and Other Expenses
Attendant Charges : Rs. 3,200/-
Permanent Disability & Loss of : Rs. 20,000/-
Amenities
Future Medical Expenses : Rs. 50,000/-
TOTAL : Rs. 1,70,638/-
9. The claimant had suffered fracture of right humorous, comminuted fracture of right hip and other injuries. The aforesaid injuries are grievous in nature. The claimant was admitted in hospital for 223 days as inpatient and undergone surgery. The doctor has assessed the permanent physical disability at 27% to the whole-body. Therefore, considering the nature of injuries sustained and
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016 the quantum of compensation awarded under the head 'Pain And Suffering' is lesser on side. Therefore, the same is enhanced to Rs.60,000/-.
10. The Tribunal has granted compensation under the 'Medical Expenses, Food, Nourishment, Transportation and Other Expenses' at Rs.77,419/-. The claimant has produced the medical receipts and hospital bills for a sum of Rs.2,75,019/- as per Exhibits- P11 and P12. The Tribunal has deducted a sum of Rs.1,97,600/- on the ground that the claimant has got reimbursement of the said amount. But upon considering Exhibits-R1 and R2 which are the letters issued by the claimant to the Manager of Punjab National Bank, requesting to advance loan amount for bearing medical expenses and hospitalization charges, since the claimant was a manager working in Punjab National Bank. Therefore, quite naturally he has requested his employer-
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016 bank to advance loan amount towards medical expenses and hospital charges and that is granted by the bank. Subsequently the claimant has repaid the amount to the bank. But the Tribunal has misconstrued this fact which is brought on evidence as it is a medical reimbursement. But this transaction is not medical reimbursement by the bank to the claimant and therefore upon perusing Exhibit-R1 document, which is a request letter of the claimant to the bank for advancing loan amount towards medical expenses and that is advanced by the bank as per exhibit R2, that the claimant had repaid the said amount to the bank. Therefore, the Tribunal has committed error in this regard. Therefore, the deduction made by the Tribunal of Rs.1,97,600/- is not correct. Hence, the claimant is entitled to the compensation under the head 'Medical Expenses And Hospitalization Charges' of Rs.2,75,019/- as per the medical bills and hospitalization charges and accordingly awarded this amount under this
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016 head.
11. The claimant was a manager working in Punjab National Bank and during the treatment period and rest period, the claimant was receiving salary without any breakup and also the claimant is continued in the same job without any admonition or any loss of pay. Therefore, the Tribunal is correct in not awarding compensation under the head 'loss of future income due to disability' and 'loss of income during laid up and rest period'.
12. The claimant had suffered grievous injuries as above discussed and was admitted in the hospital for a period of 223 days as inpatient. Therefore, the claimant had spent considerable amount towards 'incidental expenses like Food, Nourishment, Transportation,etc., Therefore, a compensation of Rs.50,000/- is awarded under these 'Incidental Expenses'.
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016
13. Further, the compensation awarded by the Tribunal under the head 'Loss Of Amenities' at Rs.20,000/- is on lesser side, accordingly a compensation of Rs.75,000/- is awarded under the said head.
14. The Doctor has stated that the claimant is required 'Future Medical Expenses' of Rs.1,75,000/- to 2,00,000/-. But the Tribunal has awarded only Rs.50,000/- under this head. The claimant had suffered fracture of right shoulder and right hip and undergone surgery by inserting rods, screws etc. The same is needed to be removed in future and therefore the claimant is awarded compensation of Rs.1,50,000/- towards 'Loss Of Future Medical Expenses' including 'Transport Conveyance In Future'.
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016
15. Therefore, in modification of the award of the Tribunal, the appellant-claimant is entitled to the following compensation:
Pain and Suffering : Rs. 60,000/-
Medical Expenses : Rs. 2,75,019/-
Food, Nourishment, Transportation : Rs. 50,000/-
and Other Expenses
Permanent Disability & Loss of : Rs. 75,000/-
Amenities
Future Medical Expenses : Rs. 1,50,000/-
TOTAL : Rs. 6,10,019/-
16. Therefore, the appellant-claimant is entitled for compensation of Rs.6,10,019/- as against Rs.2,00,619/-. The appellant - claimant is entitled for an additional compensation of Rs.4,09,400/- (Rs.6,10,019 - Rs.2,00,619) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the Tribunal. The Insurance
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016 Company is directed to deposit the amount of total compensation within Eight Weeks from the date of receipt of the certified copy of this judgment.
(iii) MFA 8226/2016 (MVC NO.348/2015) :
17. In the present case, the claimant is 34 years old and awarded global compensation of Rs.6,000/-. The claimant had suffered multiple injuries on right wrist, right shoulder and other parts of the body, abrasion right wrist 3 cms x 1.5 cms and tenderness over left TM joint. For the injuries sustained, the claimant must have taken treatment and had spent amount towards medical expenses and had suffered pain and inconvenience, discomfort. Therefore, the global compensation awarded of Rs.6,000/- is found to be on lesser side. Therefore, the same is enhanced to Rs.20,000/-. Therefore, the appeal is liable to be allowed in part.
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016
18. Accordingly, I pass the following:
ORDER i. MFA NO.8227/2016 (MVC No.349/2015) is allowed in part. The appellant-claimant is entitled for a global compensation of Rs.20,000/-, along with interest at 6% per annum from the date of filing of the petition till realization. However, the appellant-claimant is not entitled for interest for the delayed period of 68 days, in filing the appeal.
ii. MFA NO.8225/2016 (MVC No.347/2015) is allowed in part. The appellant - claimant is entitled for an additional compensation of Rs.4,09,400/- (Rs.6,10,019 - Rs.2,00,619) along with interest at 6% per annum from the date of filing of the petition till realization, in addition to what has been awarded by the
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MFA No. 8227 of 2016 C/W MFA No. 8225 of 2016 MFA No. 8226 of 2016 Tribunal. However, the appellant-claimant is not entitled for interest for the delayed period of 68 days, in filing the appeal.
iii. MFA NO.8226/2016 (MVC No.348/2015) is allowed in part. The appellant-claimant is entitled for a global compensation of Rs.20,000/-, along with interest at 6% per annum from the date of filing of the petition till realization. However, the appellant-claimant is not entitled for interest for the delayed period of 68 days, in filing the appeal.
iv. Respondent No.2 - insurance company shall
pay the compensation to the
appellants/claimants.
v. Registry is directed to return the Trial Court
Records to the Tribunal, along with certified copy of the order passed by this Court forthwith without any delay.
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MFA No. 8227 of 2016 C/W
MFA No. 8225 of 2016
MFA No. 8226 of 2016
vi. No order as to costs.
vii. Draw award accordingly.
Sd/-
JUDGE
JJ
List No.: 1 Sl No.: 39