Karnataka High Court
Kum Gunashree , D/O Narasappa vs The United India Insurance on 4 February, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE N. K. SUDHINDRARAO
M.F.A. NO. 3455/2013 (MV)
C/W
M.F.A. NO. 3367/2013 (MV)
IN M.F.A. NO. 3455/2013
BETWEEN
KUM. GUNASHREE, D/O NARASAPPA
AGED ABOUT 4 YEARS
R/AT SEEGEHALLI VILLAGE
YESWANTHAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 560 060
SINCE THE PETITIONER IS
MINOR REP. BY HER NATURAL
GUARDIAN AND FATHER
NARASAPPA S/O MUDDA HANUMAIAH
...APPELLANT
BY SRI. RAJANNA, ADVOCATE)
AND
1. THE UNITED INDIA INSURANCE
CO., LTD., NO.266, I FLOOR
GANGADARAPPA COMPLEX
SUNKADAKATTE, MAGADI MAIN ROAD
BENGALURU - 560 091
REP. BY IT'S MANAGER
2. SRI. MOHAN KUMAR, S/O GANGAIAH
AGED ABOUT 35 YEARS
R/AT VISHWANEEDAM FARM
2
MAGADI MAIN ROAD
VISHWANEEDAM POST
SUNKADAKATTE
BENGALURU - 560 091
... RESPONDENTS
(BY SRI. O. MAHESH, ADVOCATE FOR R1 (ABSENT),
NOTICE TO R2 IS HELD SUFFICIENT)
THIS MFA IS FILED U/S 173(1) OF MOTOR
VEHICLE ACT AGAINST THE JUDGMENT AND AWARD
DATED: 05.02.2013 PASSED IN MVC NO.4317/2011 ON
THE FILE OF THE VI ADDITIONAL JUDGE AND MEMBER
MACT, COURT OF SMALL CAUSES, BENGALURU, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION
AND SEEKING ENHANCEMENT OF COMPENSATION.
IN M.F.A. NO. 3367/2013
BETWEEN
THE BRANCH MANAGER
UNITED INDIA INSURANCE
COMPANY LIMITED., NO.266
1ST FLOOR, GANGADHARAPPA
COMPLEX, SUNKADAKATTE
MAGADI MAIN ROAD
BENGALURU - 560 091
BY REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.,
5TH FLOOR, KRISHI BHAVAN
NRUPATHUNGA ROAD, HUDSON CIRCLE
BENGALURU - 560 027
BY IT'S MANAGER
...APPELLANT
(BY SRI. O. MAHESH, ADVOCATE (ABSENT))
3
AND
1. KUMARI GUNASHREE,
MINOR, AGED ABOUT 5 YEARS
R/AT SEEGAHALLI VILLAGE
YASHWANTHAPUR HOBLI
BENGALURU NORTH TALUK
BENGALURU - 560 022
SINCE 1ST RESPONDENT IS MINOR
REP. BY HER NATURAL GUARDIAN
AND FATHER NARASAPPA
AGE 33 YEARS
S/O MADDAHANUMAIAH
2. MOHAN KUMAR, MAJOR
S/O GANGAIAH
R/AT VISWANEEDAM FARM
MAGADI MAIN ROAD
VISWANEEDAM POST
SUNKADAKATTE
BENGALURU - 560 091
... RESPONDENTS
(BY SRI. RAJANNA, ADVOCATE FOR R1
SRI. D. SRINIVASA, ADVOCATE FOR R2)
THIS MFA IS FILED U/S 173(1) OF MOTOR
VEHICLE ACT AGAINST THE JUDGMENT AND AWARD
DATED: 05.02.2013 PASSED IN MVC NO.4317/2011 ON
THE FILE OF THE VI ADDITIONAL JUDGE, AND MEMBER
MACT, COURT OF SMALL CAUSES BENGALURU,
AWARDING COMPENSATION OF Rs.6,00,000/- WITH
INTEREST @ 8% P.A. FROM THE DATE OF PETITION
TILL REALIZATION.
4
THESE MFAs COMING ON FOR HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
MFA No.3455/2013 and MFA No.3367/2013 arise out of the Judgment and Award dated 05.02.2013 passed by the VI Addl. Judge and MACT, Bengaluru City, in MVC No.4317/2011.
2. MFA No.3455/2013 is filed by the claimant (Injured) seeking enhancement of compensation and MFA No.3367/2013 is filed by M/s. United India Insurance Co. Ltd., seeking to set aside the impugned judgment and award passed by the Tribunal.
3. The brief facts of the case are that, on 23.06.2011 at about 8.30 p.m., the claimant -Baby Gunashree, aged 2½ years, was standing near the Byraveshwara Provisions Store along with her father for crossing the road of Seegehalli, Bengaluru. At that time, the driver of the TVS Victor Motor Bike bearing Registration No. KA.02.EP.1095 came from Seegehalli side in rash and negligent manner with high speed and 5 dashed against the claimant and sped away from the spot. As a result, the claimant fell down and sustained grievous injuries. Immediately, she was shifted to BGS Global Hospital in Uttarahalli Main Road for treatment. The medical report reveals that the claimant has sustained fracture of left pelvis and urethral rupture and she was treated as inpatient from 24.06.2011 to 02.07.2011 and her left kidney was operated and other injuries were treated.
4. It is stated that her parents incurred medical expenses of Rs.3,00,000/-. The records reveal that, due to total damage of her left kidney, the claimant has to live with only one kidney and she is not in a position to move around freely as earlier and the injuries have caused permanent disability. The records also reveal that, the Tavarekere Police have registered a case against the rider of the Motor Bike in Cr. No.256/2011 under Sections 279 and 337 of IPC.
5. On issuance of summons, the 1st respondent- Insurance Company, with which the said vehicle was insured, and the 2nd respondent, owner of 6 the offending vehicle, appeared before the Tribunal and filed their written statements denying the petition averments in toto.
6. The 1st respondent-Insurance Company contended that, though the offending motor cycle is covered by the Insurance Policy from 09.05.2011 to 08.05.2011, as the rider of the said vehicle has stated that he has not caused the accident and he was attending marriage function on the alleged date of incident ie., 23.06.2011 at 8.30 a.m., and he was at the function hall the insurer is not liable to pay any compensation. Further, it is also contended that the alleged accident had occurred due to the fault of the petitioner and her parents as they are not much diligent while crossing the road and not due to the fault of rider of the motor cycle. The 2nd Respondent also denied the alleged accident on 23.06.2011 at about 8.30 p.m. contending that, at that time he was attending marriage function and the place of marriage function was 5 Km. away from the place of accident, as such, he has not committed any accident to the petitioner. The 2nd 7 respondent further contended that, the claimant herself and her father was negligent while crossing the road.
7. The Tribunal after considering the oral and documentary evidence produced by PW.1 marked at Exs.P1 to P16 and also the Respondents, who got examined RW.1 and produced the documents at Exs. R1 and R2 in detail, partly allowed the claim petition and awarded compensation of Rs.6,00,000/- with interest at 8% pa. from the date of petition till the date of payment, directing Respondent Nos. 1 & 2 to pay the same jointly and severally.
8. Heard the learned counsel appearing for the appellant/claimant in MFA No.3364/2013. Perused the impugned Judgment.
9. Learned counsel for Appellant/Insurance Company MFA No.3367/2013 is absent. Hence, the said appeal filed by the United India Insurance Co. Ltd. is liable to be dismissed for non-prosecution.
10. Having heard the learned counsel for the claimant and having gone through the facts and 8 circumstances of the case, I am of the opinion that, awarding compensation in road traffic accident case in respect of minor child, who is a non-earning person is different compared to awarding compensation to an earning person. On this point, the Hon'ble Supreme Court in the case of Master Mallikarjun Vs. Divisional Manager, National Insurance Company Limited and Another reported in (2014) 14 SCC 344:AIR 2014 SCC 376) has observed at Para-8 as under:
"8. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one.
The main stress in the formula is on
pecuniary damages. For children, there is
no income. The only indication in the
Second Schedule for non-earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary heads in addition to the actual amounts incurred for treatment done 9 and/or to be done, transportation assistance of attendant etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. The appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation etc."
10.1 Further, at Para-12 of the said decision, the Hon'ble Supreme Court has observed that,-
"12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate 10 compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc. should be, if the disability is above 10% and up to 30% to the whole body, Rs.3, Lakhs; upto 60%, Rs.4 Lakhs;
upto 90% Rs.5 Lakhs and above 90% it should be Rs.6 Lakhs. For permanent disability upto 10%, it should be Rs. 1 Lakh, unless there are exceptional circumstances to take a different yardstick."
11. In the present case, the claimant is a child aged about 2½ years, who met with a road traffic accident and suffered damage to urethra and lost her left kidney. Therefore, it is very difficult to imagine how ghastly she was frustrated and devastated. The medical evidence of the PW.2-Dr. D.S. Ramu also reveals that, the claimant has undergone left Nephrotomy on 25.06.2011 and currently she has one functioning right kidney. In future, if the victim loses her right kidney, she may require substantial treatment or kidney transplantation. For that, the medical expenses are very high and it horrifies the parents and entire family members. Therefore, in my opinion, 11 Rs.4.00 Lakhs (without any interest) to be paid towards future medical expenses of the claimant.
12. So far as the compensation is concerned, the Tribunal awarded Rs.2.00 Lakhs towards medical bills, conveyance, attendant charges, food and nourishment etc.; Rs.2.00 Lakhs towards injury; Rs.1.00 Lakh towards consequential pain and suffering and Rs.1.00 Lakh towards loss of amenities ie., marriage prospect and it is maintained. But, the Tribunal has not taken into consideration the aspect of future medical expenses, in case, if the claimant needs medication to other kidney, with which she has to survive her whole life. Therefore, in the facts and circumstances of the case and also keeping in view the decision of the Hon'ble Supreme Court cited supra, I am of the opinion that, the compensation awarded by the Tribunal is on the lower side and it deserves to be enhanced, from Rs.6,00,000/- to Rs.10,00,000/-. The enhancement of compensation made in this appeal is on the basis of the just and fair compensation. 12
13. In the above facts and circumstances of the case, the following order is passed:
ORDER
i) MFA No.3367/2013 is dismissed for non-
prosecution.
ii) MFA No.3455/2013 is allowed in part. The impugned Judgment and award is modified and The claimant is entitled for the enhanced compensation of Rs.4,00,000/- (Rupees Four Lakhs) (without interest).
iii) The respondents- 1 & 2 are jointly and severally liable to pay the said compensation and Insurance Company is directed to deposit the compensation amount within four weeks from the date of receipt of a certified copy of this judgment.
iii) On deposit of the entire compensation, the enhanced compensation of Rs.4.00 Lakhs shall be kept in FD in the name of the claimant in any nationalized bank which entails her more benefit, until she attains majority.
13
The Registry is directed to transmit the amount in deposit to the concerned Tribunal, forthwith.
Sd/-
JUDGE KGR* NKSJ:
06.02.2020 MFA NO.3455/2013 C/W MFA NO.3367/2013 ORDER The matter is listed today for clarification.
2. Sri O.Mahesh, learned counsel for the appellant representing Insurance Company in MFA No.3367/2013 filed a Memo dated 4.2.2020 for recalling the Order dated 4.2.2020 passed by this court in MFA No.3367/2013. He submits that, he was not heard in the matter at the time of disposal of the appeals on 04.02.2020. He also submits that, in the ends of natural justice, an opportunity to be given to the counsel for the 14 Insurance Company, which is appellant in MFA No.3367/2013 and respondent in MFA No.3455/2013.
Further, he submits that, the Claim Petition ought to have been rejected before the Tribunal, as there was no negligence on the part of the rider of offending TVS Motor bike is concerned,.
3. Learned counsel for the Insurance Company further submitted that, the owner of the offending vehicle appeared before the Tribunal and stated that, he is not the owner of the vehicle, as such, the Insurance Company is not liable to pay any compensation.
4. It is necessary to make a mention that, though the owner of the offending vehicle has deposed before the court that, the vehicle is not involved in the alleged accident, such a casual and incomplete statement cannot be taken note of for adjudicating a material issue. Because, if he was not the owner of the vehicle, there should be some changes in the material like rider of the vehicle; filing of criminal case; payment of compensation and joint and several liability. No such 15 material differences are available. Therefore, such kind of casual contention of the owner cannot have any bearing on the case.
5. In the overall circumstances, in the Judgment passed in these appeals on 04.02.2020, only the order portion to the extent of dismissing appeal filed by the Insurance Company for non-prosecution is recalled. The appearance of the Advocate for the Insurance Company in these appeals are notified as 'Present'. All other finding given in the judgment passed in the said appeals remain in tact and need not be altered.
6. This order to be treated as a part and parcel of the judgment passed in these appeals by this Court on 04.02.2020. Therefore, this order is directed to be enclosed along with the said Judgment.
Sd/-
JUDGE PL*