Karnataka High Court
Sri. Madhusudhana @ Madhu vs M/S. United India Insurance Co Ltd on 12 November, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
-1-
NC: 2024:KHC:45730
MFA No. 8424 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO. 8424 OF 2014 (MV-I)
BETWEEN:
SRI. MADHUSUDHANA @ MADHU
S/O MUNIRAJU @ MUNIRAJAPPA,
AGED ABOUT 20 YEARS,
R/AT SHETTIGERE VILLAGE,
JALA HOBLI,
BANGALORE NORTH TALUK,
BENGALURU -98
...APPELLANT
(BY SRI. R LAKSHMANA.,ADVOCATE)
AND:
1. M/S. UNITED INDIA INSURANCE CO LTD
BY ITS MANAGER,
REGIONAL OFFICE
T P HUB, 6TH FLOOR
KRUSHIBHAVANA,
HUDSON CIRCLE,
NRUPATHUNGA ROAD,
Digitally signed by
RAMYA D
BENGALURU -9
Location: HIGH COURT
OF KARNATAKA
2. SRI R CHANDRAKANTH
S/O RAJANNA,
R/AT SUGGATTA VILLAGE,
HUNASAMARANAHALLI,
BENGALURU -98
...RESPONDENTS
(BY SRI. C SHANKAR REDDY.,ADVOCATE FOR R1;
NOTICE SERVED TO R-2)
THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE
JUDGMENT AND AWARD DATED 08.09.2014 PASSED IN MVC
NO.5838/2012 ON THE FILE OF THE XII ADDITIONAL SMALL
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NC: 2024:KHC:45730
MFA No. 8424 of 2014
CAUSES JUDGE, MEMBER, MACT, BANGALORE, PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
ORAL JUDGMENT
This appeal is filed under Section-173(1) of the Motor Vehicles Act, 1988 by the appellant-claimant challenging the judgment and award dated 8th September 2014, passed in MVC No.5838/2012, on the file of the XII Additional Small Causes Judge and Member, MACT, Bangalore, seeking enhancement of compensation as well as for modification of the liability fastened on the respondent No.2/owner of the tempo bearing registration No.KA-40-1508.
2. Heard the arguments of learned counsel for the appellant and learned counsel for respondent No.1 - insurance company and perused the materials on record.
3. The learned counsel for the appellant submitted that the quantum of compensation awarded under various heads is on the lesser side. Therefore, seeks for enhancement of compensation. Learned counsel further submitted that the -3- NC: 2024:KHC:45730 MFA No. 8424 of 2014 Tribunal is not justified in fastening liability on the owner of the offending vehicle tempo and absolving the insurance company from paying the compensation.
4. On the other hand, learned counsel appearing for the 1st respondent - insurance company submits that the Tribunal is justified in passing the impugned judgment and award and rightly fastened liability on the owner of the offending vehicle to pay the compensation.
5. The occurrence of accident and injuries sustained by the claimant are not in dispute. The question to be considered is whether the appellant has made out a case for enhancement of compensation and whether the insurance company is liable to pay the compensation or not?
6. In the present case, from the medical evidence on record, it is proved that the claimant has suffered the following injuries:
i) Crush injury right foot with dislocation of the DIP joint of the 2nd toe.
ii) Injury of tendons of EHL and ED muscles -4- NC: 2024:KHC:45730 MFA No. 8424 of 2014
iii) Fracture of right tibia and fibula in the lower third.
7. The Tribunal has awarded compensation under various heads as follows:
1) Pain and suffering : Rs.30,000-00
2) Inconvenience caused to the parents during laid up period : Rs. 5,000-00
3) Medical bills : Rs. 5,074-00
4) Estimated loss of future earnings : Rs.18,000-00
5) Loss of amenities, conveyance, food and nourishment, attendant charges : Rs.25,000-00
6) Future medication : Rs.10,000-00 ..........................
Total : Rs.93,074-00
8. The claimant is a minor, aged 13 years at the time of the accident. In case of children suffering disability on account of a motor vehicle accident, the compensation to be assessed in the light of the guidelines issued by the Hon'ble Supreme Court in the case of Master Mallikarjun -vs- Divisional Manager, -5- NC: 2024:KHC:45730 MFA No. 8424 of 2014 The National Insurance Company Limited and another reported in ILR 2013 Kar. 4891. The quantum of compensation to be awarded is proportion to the percentage of disability suffered as stated in paragraph-12 of the said judgment. In the present case, the doctor/PW.2 has assessed total physical disability with respect to the injured limb at 24% and physical disability with respect to the whole body at 8%. Therefore, the appellant/claimant is entitled for compensation under various heads as follows:
Sl. Head of compensation Amount of No. compensation awarded 1 Pain & suffering already Rs. 1,00,000-00 undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomforts etc., and loss of amenities in life on account of permanent disability 2 Discomfort, inconvenience and Rs. 25,000-00 loss of earnings to the parents during the period of hospitalization 3 Medical and incidental expenses Rs. 25,000-00 during the period of hospitalization 4 Future medical expenses Rs. 25,000-00 Total Rs. 1,75,000-00 -6- NC: 2024:KHC:45730 MFA No. 8424 of 2014
9. In the present case, the Tribunal has observed that the driver of the offending vehicle had not possessed driving licence at the time of the accident. Therefore, the Tribunal is correct in exonerating the Insurance Company from paying compensation to the claimant. However, as per Sub-section (2) of Section 149 of Motor Vehicle Act, 1988, when the insurance company established the fact that driver was not holding driving licence, then, as per sub-sections (1), (4), (7) of Section 149 of the Motor Vehicles Act, the Insurance Company as if the judgment debtor shall satisfy the claim in respect of third parties at the first instance and then recover the same from the owner of the offending vehicle. Accordingly, the order of pay and recovery is made as per the principle of law laid down by the Hon'ble Supreme Court in the cases of PAPPU AND OTHERS Vs. VINOD KUMAR LAMBA AND ANOTHER reported in (2018)3 SCC 208; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS reported in (2004)3 SCC 297 and also as per the full bench decision of this Court in the -7- NC: 2024:KHC:45730 MFA No. 8424 of 2014 case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER reported in 2020 ACJ 2560. Accordingly, an order of pay and recovery is made.
To this extent, the judgment and award passed by the Tribunal is modified.
10. Accordingly, I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The appellant/claimant is entitled to total compensation of Rs.1,75,000/- (Rupees one lakhs seventy-five thousand only) as against Rs.93,074/- awarded by the Tribunal alongwith interest at 6% per annum from the date of petition till realisation.
iii) The impugned judgment and award dated 8th
September 2014, passed in MVC
No.5838/2012, on the file of the XII
Additional Small Causes Judge and Member, MACT, Bangalore, is modified to the above extent.
iv) The respondent No.1/insurance company shall pay the compensation to the claimant at the -8- NC: 2024:KHC:45730 MFA No. 8424 of 2014 first instance and then recover it from the owner of the Tempo bearing registration No.KA-40-1508.
v) The other findings and observations made by the Tribunal are kept intact.
vi) Draw award accordingly.
vii) Registry is directed to return the Trial Court Records to the Tribunal, alongwith certified copy of this judgment forthwith.
SD/-
(HANCHATE SANJEEVKUMAR) JUDGE GSS List No.: 1 Sl No.: 10