Karnataka High Court
Sri C Hanumanthaiah vs Kum Chandrakala J on 11 October, 2022
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
M.F.A. NO.482 OF 2018 (MV)
C/W
M.F.A. NO. 1076 OF 2018 (MV)
M.F.A. NO.482 OF 2018 (MV)
BETWEEN
SRI C. HANUMANTHAIAH
S/O CHIKKA HANMAIAH
AGED ABOUT 56 YEARS
R/AT NO.111, 4TH CROSS
GANAPATHI NAGAR
HEROHALLI
VISHWANEEDAM POST
BANGALORE - 560 091.
... APPELLANT
(BY SRI. SRIDHAR A.G., ADVOCATE)
AND
1. KUM. CHANDRAKALA J.
D/O JAGADEESH N.V.
AGED ABOUT 14 YEARS
R/AT NO.29, HEROHALLI
4TH CROSS, NEAR SADHANA
PUBLIC SCHOOL
K.S.R.T.C. LAYOUT
MAHADESHWARA NAGARA
MALLESHWARAM
BENGALURU - 560 0003.
(THE PETITIONER BEING MINOR
REPRESENTED BY HER FATHER
2
AND NATURAL GUARDIAN
SRI JAGADEESH N.V.
S/O VENKATE GOWDA
AGED ABOUT 39 YEARS.
2. ICICI LOMBARD GENERAL INSURANCE CO.LTD.
NO.89, S.V.R COMPLEX
2ND FLOOR, HOSUR MAIN ROAD
MADIWALA, BENGALURU - 560 068.
...RESPONDENTS
(BY SRI. H.M. GIRISHA, ADOVATE FOR R1
SRI A.M. VENKATESH, ADVOCATE FOR R2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT AGAINST THE JUDGMENT AND AWARD DATED
17.10.2017 PASSED IN MVC NO.3622/2015 ON THE FILE OF THE
VIII ADDITIONAL SMALL CAUSE JUDGE, & XXXIII ACMM, MEMBER,
MACT, BENGALURU, (SCCH-5), AWARDING COMPENSATION OF
RS.2,50,000/- WITH INTEREST @ 9% P.A. FROM THE DATE OF
PETITION TILL REALIZATION.
M.F.A. NO.1076 OF 2018 (MV)
BETWEEN
KUM. CHANDRAKALA J.
D/O JAGADEESH N.V.
AGED ABOUT 13 YEARS
R/AT NO.29, HEROHALLI
4TH CROSS NEAR SADHANA
PUBLIC SCHOOL
K.S.R.T.C. LAYOUT
MAHADESHWARA NAGARA
MALLESHWARAM
BANGALORE - 560 003.
THE APPELLANT BEING MINOR
REPRESENTED BY HER FATHER
AND NATURAL GUARDIAN
JAGADEESH N.V.
3
S/O VENKATE GOWDA
AGED ABOUT 39 YEARS.
... APPELLANT
(BY SRI. GIRISHA H.M., ADVOCATE)
AND
1. THE BRANCH MANAGER
ICICI LOMBARD GENERAL INSURANCE CO.LTD.
2ND FLOOR, NO.89
S.V.R. COMPLEX
HOSUR MAIN ROAD
MADIWAL, BANGALORE - 560 068.
2. SRI C. HANUMANTHAIAH
S/O CHIKKA HANUMAIAH
R/AT NO.111, 4TH CROSS
GANAPATHI NAGAR
HEROHALLI
VISHWANEEDAM POST
BENGALURU - 560 091.
...RESPONDENTS
(BY SRI A.M. VENKATESH, ADVOCATE FOR R1
SRI SRIDHAR A.G., ADVOCATE FOR R2)
***
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT AGAINST THE JUDGMENT AND AWARD DATED
17.10.2017 PASSED IN MVC NO.3622/2015 ON THE FILE OF THE
VIII ADDITIONAL SCJ & XXXIII ACMM MEMBER-MACT, BENGALURU
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:
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JUDGMENT
MFA No.482/2018 is filed under Section 173(1) of the Motor Vehicles Act, 1988, (hereinafter referred to as 'the MV Act' for brevity) by the appellant-owner challenging the judgment and award dated 17.10.2017 passed in MVC No.3622/2015 on the file of learned VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal at Bengaluru (hereinafter referred to as 'the Tribunal' for brevity), questioning the liability.
2. MFA No.1076/2018 is filed under Section 173(1) of the Motor Vehicles Act, 1988, by the appellant-claimant challenging the judgment and award dated 17.10.2017 passed in MVC No.3622/2015 on the file of learned VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal at Bengaluru, for seeking enhancement of compensation.
3. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Tribunal.
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5. The brief facts of the case are that, on 27.08.2015 at about 7.55 a.m. when the petitioner was standing on the footpath near Shabari Bekary, Mahadeshwara Nagara Layout, Bengaluru to cross the road, at that time, Honda Activa bearing Reg.No.KA-02-HY-0974 being ridden by its rider in rash and negligent manner came with high speed and dashed against her, as a result of which, she fell down and sustained grievous injuries. Immediately after the accident, she was shifted to Sri Lakshmi Multi Speciality Hospital, wherein she took treatment as an inpatient and she had spent a sum of Rs.1,25,000/- towards medical and other incidental expenses. It is the case of the petitioner that, she was studying in 6th Standard at Vidyasheree High School, Anjana Nagar, Bengaluru. Due to the accidental injuries, she is unable to lead normal life as earlier and not able to attend her classes and lost her academic education. Hence, she filed petition claiming compensation of Rs.12,00,000/- against the respondents.
6. On service of notice, respondents No.1 and 2 entered appearance and filed objection statement denying the averments 6 made in the claim petitions. The Tribunal, after considering the material on record framed issues for its consideration. In order to prove the case, father and natural guardian of the petitioner has been examined as PW-1 and got marked Ex.P.1 to Ex.P.10. Medical Record Officer of Sri Lakshmi Multi Speciality Hospital has been examined as PW-2 and got marked Ex.P11 to Ex.P.15. Further, Dr.S.Ramachandra, Assistant Prof. of Orthopaedics, BMC has been examined as PW-3 and got marked Ex.P.16 and ExP.17 on his behalf. On behalf of respondent No.1-ARTO, Rajajinagar has been examined as RW-1 and got marked Ex.R.1, Asst. Accountant of Sri Laxmi Multi Speciality Hospital has been examined as RW-2 and got marked Ex.R.2 to Ex.R.5, Legal Manager from Respondent No.1 Company has been examined as R.W-3 and got marked Ex.R.6 and Ex.R.7.
7. The Tribunal, after considering the material on record, by its judgment and award dated 17.10.2017 allowed the claim petition in part and held that petitioner is entitled for global compensation of Rs.2,50,000/- with interest at the rate of 9% per annum from the date of petition till the date of 7 realization and further held that respondent No.2 being the R.C.Owner is liable to pay the compensation to the petitioner. Being dissatisfied with the liability fastened by the Tribunal, the appellant-owner has preferred the appeal in MFA No.482/2018 and being dissatisfied with the quantum of compensation awarded, the claimant has preferred the appeal in MFA No.1076/2016 seeking enhancement of compensation.
8. I have heard Sri.Sridhar A.G, learned counsel appearing for the owner, Sri.A.M.Girisha, learned counsel for claimant and Sri.A.M.Venkatesh, learned counsel appearing for respondent - Insurance Company.
9. The learned counsel for the appellant-owner submitted that the driver was holding valid driving license to drive for four-wheeler, therefore the driver is also competent to ride the motorcycle. Hence it can be construed that the driver was holding valid and effective driving license even to drive the motor cycle also. Therefore, seeks exoneration of liability and requested to fasten the liability on the insurance company. 8
10. On the other hand, the learned counsel for the appellant-claimant submitted that the global compensation awarded by the Tribunal is on the lesser side. Therefore, he seeks for enhancement of the compensation. The learned counsel further submitted that an order of pay and recovery can be made in case the driver was not holding valid driving license.
11. The learned counsel for the insurance company submitted that on the date of the accident, the driver of the motor cycle was not having driving license to drive the two- wheeler but had driving license for four-wheeler. Therefore, the person who was holding the driving licence to drive four- wheeler, he cannot be construed as competent to drive motor cycle also which is correctly considered by the Tribunal. Hence, the learned counsel prays to dismiss the appeal as the Tribunal is correct in holding that the owner of the motor cycle is responsible for paying compensation.
Regarding Liability:
12. In the present case, the driver of Honda Activa bearing Reg.No.KA-02-HY-0974 has caused accident by dashing 9 the claimant. The said rider of the motorcyle was having driving licence to drive four-wheeler as per Ex.R1-licence. The owner has not produced the driving licence to drive two wheeler before the Tribunal. The vehicles, two-wheeler and four-wheeler are different classes of vehicles. Just because the driver is holding driving licence to drive four-wheeler cannot be construed as competent to drive two wheeler also. For driving two-wheeler, effective driving licence is required. Therefore, in this regard the Tribunal is correct in holding that the driver of Honda Activa bearing Reg.No.KA-02-HY-0974 was not holding driving licence to drive two wheeler and the Tribunal has rightly fastened the liability on the owner of the Honda Activa bearing Reg.No.KA-02- HY-0974. Therefore, the Insurance Company absolutely is not liable to pay compensation by indemnifying the owner.
13. However, the Insurance Company has taken defence as per Section 149(2) of the MV Act and has successfully established the said defence. Therefore in the circumstances, as per Section 149(1), (4) (5) and (7) of the MV Act and as per the principle of law laid down by the Hon'ble Supreme Court in the 10 case of Pappu and others v. Vinod Kumar Lamba and another1 and Full Bench decision of this Court in the case of New India Assurance Company Ltd. V. Yellavva and another2, it is incumbent upon the insurance company to satisfy the claim in favour of the third party and receive from the owner of the vehicle. In the present case, the claimant is the third party, therefore, the Insurance Company has to satisfy the claim and then recover it from the owner of the Honda Activa bearing Reg.No.KA-02-HY-0974. Accordingly, an order of pay and recovery is made.
Regarding Quantum:
14. The Tribunal has granted a global compensation of Rs.2,50,000/- with interest at 9% p.a. from the date of petition till the date of realization. The claimant was 12 years old as on the date of accident. Hence, she was a minor. The Doctor-PW.3 has stated that the minor claimant has sustained fracture of tibia and fibula of left leg and assessed 8% permanent disability towards the whole body. Therefore as per judgment of Hon'ble Supreme Court in the case of Master Mallikarjun v. Divisional 1 2018 3 SCC 208 11 Manager, National Insurance Company Ltd. & another3 if the permanent disability is upto 10% then the compensation should be Rs.1,00,000/- towards pain and suffering, mental agony, hardship, inconvenience, discomfort and loss of amenities etc. Accordingly, compensation of Rs.1,00,000/- is awarded under the head of pain and suffering, mental agaony, hardship, inconvenience, discomfort and loss of amenities etc. Further, the claimant has produced the medical bills and hospital charges to the tune of Rs.1,14,770/- as per Ex.P8 and Ex.P9. Accordingly, compensation of Rs.1,15,000/- is awarded under the head of medical expenses and hospital charges.
15. Further, as per the judgment in the case of Mallikarjun (supra) compensation of Rs.25,000/- is awarded under the head of discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization and Rs.25,000/- is awarded towards future medical expenses.
16. Therefore, the appellant is entitled to compensation under various heads as follows:
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2020 ACJ 2560 3 AIR 2014 SC 736 12 Head of compensation Amount
1. pain and suffering, hardship, Rs. 1,00,000/-
inconvenience, discomfort and loss of amenities
2. Medical expenses and hospital Rs.1,15,000/- charges
4. Discomfort, inconvenience and Rs. 25,000/- loss of earnings to the parents during the period of hospitalisation
3. Future medical expenses Rs. 25,000/-
TOTAL Rs.2,65,000/-
The Tribunal has awarded compensation of Rs.2,50,000/-, but the appellant/claimant is entitled to total compensation of Rs.2,65,000/-. Hence, the appellant is entitled to enhanced compensation of Rs.15,000/- (Rs.2,65,000/- - Rs.2,50,000/-). Therefore, the appellant/claimant is entitled to enhanced compensation of Rs.15,000/- along with interest at the rate of 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
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17. Since an order of pay and recovery is made, in order to enable the claimant to get compensation, the insurance company is directed to satisfy the claimant at the first instance and then recover the same from the owner of Honda Activa bearing Reg.No.KA-02-HY-0974.
18. It is submitted that the owner has already paid 75,000/-of the award amount to the claimant, the insurance company shall pay the balance amount to the claimant and recover the same from the owner of Honda Activa bearing Reg.No.KA-02-HY-0974. Hence, the appeal filed by the owner is liable to be dismissed and the appeal filed by the claimant is allowed in part. Hence, the following:
ORDER
1. MFA No.482/2018 filed by the owner is dismissed.
2. MFA No.1076/2018 filed by the claimant is allowed in part.
3. The judgment and award dated 17.10.2017 passed in MVC No.3622/2015 on the file of learned VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal at Bengaluru is hereby modified. 14
4. The appellant in MFA No.1076/2018 is is entitled to enhanced compensation of Rs.15,000/- along with the rate of interest at 6% per annum from the date of petition till the date of realization, in addition to what has been awarded by the Tribunal.
5. The insurance company shall pay the aforesaid determined amount to the claim and recover the same from the owner of Honda Activa bearing Reg.No.KA-02-
HY-0974.
6. No order as to costs.
7. Draw award accordingly.
Sd/-
JUDGE UN