Karnataka High Court
Kumaraswamy @ Abhishake S/O Puttegowda vs M/S.Toras Earth Movers Private Ltd on 12 September, 2017
Author: Raghvendra S.Chauhan
Bench: Raghvendra S. Chauhan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF SEPTEMBER, 2017
BEFORE
THE HON'BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN
M.F.A. NO.8786 OF 2010 (MV)
BETWEEN:
Kumaraswamy @ Abhishake
S/o Puttegowda
Aged about 9 years
Since appellant is a minor
Represented by his natural
guardian father Puttegowda
S/o Manjegowda
Aged about 39 years
Mudalakoppalu, Kattaya Hobli
Hassan Taluk & District
...APPELLANT
(By Smt. H. C. Kavitha, Advocate)
AND:
1. M/s. Toras Earth Movers Private Ltd.,
No.1142, 1st Floor
L.M.S.B Sector, 16th Main
2nd Stage, Yelahanka New Town
Yelahanka Satellite Town
Bengalooru - 560 064
2. I.C.I.C.I. Lombard Motor
Insurance Co. Ltd.,
Janith House, Keshava Rao
Khod Marg, Mahalakshmi
Mumbai - 400 034
... RESPONDENTS
2
(By Sri.H.N.Keshava Prashanth, Advocate for R2;
Notice to R1 is held sufficient vide order
dated 18.08.2014)
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This M.F.A. is filed under Section 173(1) of MV Act
against the judgment and award dated 17.04.2010
passed in MVC No.184/2008 on the file of the Principal
Civil Judge (Sr.Dn) Member, Additional MACT, Hassan,
partly allowing the claim petition for compensation and
seeking enhancement of compensation.
This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
A minor child has challenged the legality of the award dated 17.04.2010, passed by the Principal Civil Judge (Sr.Dn.) and Additional MACT, Hassan through his father, for the injuries suffered by him, in a vehicular accident. By the impugned award, the learned Tribunal had granted a compensation of Rs.74,750/-, along with interest @ 6% p.a. from the date of filing of the petition, till the date of realization.
2. According to the claimant, on 25.04.2007, around 10.00 a.m., when he was standing near the 3 house of one Chikkegowda of Pirumanahalli village, on the left side of the road, at that time, the driver of the Mahindra Van, bearing Registration No.KA-50-1169, being driven in a rash and negligent manner, came and dashed against him. Resultantly, the appellant suffered grievous injuries on his left knee, left thigh, abdomen, and sustained fracture of left femur (upper 1/3 part). Immediately, he was rushed to the S. S. M. Hospital, Hassan where he had to undergo surgery for implantation of plates and screws. Having recovered from the accident, the minor child filed a claim petition through his father. In order to support his case, the father was examined as PW-1, and Dr. Ravi, as PW-2. The appellant also submitted eight documents. On the other hand, the Insurance Company examined a single witness, and submitted four documents. After appreciating the evidence, the learned Tribunal granted the compensation as aforementioned. Hence, the appeal for enhancement.
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3. Mrs. H. C. Kavitha, learned counsel for the appellant, has raised the following contentions before this Court: firstly, the learned Tribunal was not justified in exonerating the Insurance Company from its liability to pay the compensation and impose the liability on the owner. The learned Tribunal had exonerated the Insurance Company on the ground that the driver of the offending vehicle had a driving license for LMV, and he was driving a light driving vehicle. Relying on MUKUND DEWANGAN vs. ORIENTAL INSURANCE COMPANY LIMITED [AIR 2017 SC 3668], the learned counsel pleads that the issue whether a specific endorsement needs to be made on a driving license for LMV or not has been settled by the Apex Court in the said case. Therefore, the Insurance Company cannot escape from its liability to pay the compensation on the ground that the driving license did not bear the specific endorsement with regard to the kind of vehicle which could be driven, 5 even if the driver had valid driving license for driving LMV.
Secondly, despite the fact that the minor child had suffered fracture of left femur, inspite of the fact that Dr. Ravi (PW-2) had clearly stated that the bone was mal-united, there was wasting of left thigh muscles compared to right thigh muscles, and it is difficult for the appellant to squat or sit in a cross-legged position, the learned Tribunal has granted merely Rs.15,000/- in the category of "loss of amenities and enjoyment of life". Therefore, the compensation under the said category needs to be enhanced by this Court.
Thirdly, despite the fact that the appellant was hospitalized for one month, the compensation paid in the category of "nourishment and attendant charges" is too little as the learned Tribunal has granted a compensation of Rs.5,000/-.
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Fourthly, while assessing the notional income of the appellant, the learned Tribunal has taken the notional income as Rs.15,000/- p.a., whereas according to the schedule prepared by this Court, the notional income for an accident, in the year 2007, should be taken as Rs.4,500/-. Therefore, the loss of future earning calculated by the learned Tribunal needs to be re-assessed.
4. On the other hand, Mr. H. N. Keshava Prasanth, the learned counsel for the Insurance Company has frankly conceded, and in the opinion of this Court rightly so, that the issue with regard to the need for specific endorsement while holding a valid LMV Licence and the liability of the Insurance Company is squarely covered by Mukund Dewangan's case (supra). But, on the other hand, the learned counsel pleads that the compensation given for "the loss of amenities and enjoyment of life" is a reasonable one, as the injury was 7 caused in the year 2007. Moreover, even for "nourishment and attendant charges", a reasonable compensation has been given. Lastly, relying on the case of VARALAKSHMI AND ORS. vs. MANIS MUTHUPANDI AND ORS. [AIR 2017 SC 1195], the learned counsel pleads that the issue with regard to loss of future prospects needs to be kept open as the said issue is presently pending before the larger Bench of the Apex Court. Therefore, this Court should not express any opinion with regard to loss of future prospects.
5. Heard the learned counsel for the parties, and perused the impugned award.
6. Recently, in the case of MUKUND DEWANGAN'S (supra), the issue was whether a specific endorsement needs to be made in a valid driving license for driving LMV or not? According to the Apex Court, no such specific endorsement is required by law. Therefore, if the driver does have a valid driving license 8 for driving LMV, the Insurance Company cannot be exonerated from its liability on the ground of lack of specific endorsement with regard to the specific kind of vehicle to be driven. According to the Apex Court, in case the driver has a valid driving license for driving LMV, then the Insurance Company would be liable to pay the compensation. Hence, the learned Tribunal was not justified in exonerating the Insurance Company from its liability. Hence, the compensation has to be paid by the Insurance Company, and not by the owner of the offending vehicle.
7. While taking note of Dr. Ravi's testimony, the learned Tribunal has ignored the fact that the facture of left femur bone was not allied properly, and the bones are malunited. Consequently, the left thigh and the muscles of the left hip are terminally restricted, and it is weakening the muscles of the left thigh. Therefore, the permanent disability suffered by the 9 minor child will continue for rest of his life. This fact not only affect his working as an agriculturist, since the child belongs to an agricultural family, but may also adversely affect his matrimonial prospect in future. Thus, the child may be deprived of some of the basic amenities of life. Yet, the learned Tribunal has granted the compensation for "loss of amenities and enjoyment of life" as merely Rs.15,000/-. Obviously, the said compensation is a meager one. Considering the fact that the life expectancy happens to be 70 years, and the child still has a long way to go, therefore this Court enhances the compensation under the said category from Rs.15,000/- to Rs.50,000/-.
8. Even the compensation for "nourishment and attendant charges", the same seems to be on the lower side. Considering the fact that the child was hospitalized for one month, therefore, the compensation 10 on the said category is enhanced from Rs.5,000/- to Rs.15,000/-.
9. In the case of VARALAKSHMI (supra), the Hon'ble Supreme Court has clearly opined that the issue with regard to loss of future prospects is to be left open, as the said issue is sub-judice before a Larger Bench. Therefore, the said aspect is not being adjudicated upon presently. But appellant shall be free to request this Court to take this appeal on board after the said issue has been settled by the Apex Court. The learned counsel for the appellant shall be free to raise all the contentions with regard to the income, with regard to extent of functional disability suffered by the appellant, and the impact which such disability would have on the loss of future prospects.
10. For the reasons stated above, this appeal is partly allowed. The impugned award dated 17.04.2010 passed in MVC No.184/2008, by the Principal Civil 11 Judge (Sr. Dn.) and Additional MACT, Hassan is modified as under:-
Sl. Heads Amount Enhanced
No. awarded by amount by
the Tribunal this Court
Rs. Rs.
1. Medical expenses 19,000-00 19,000-00
2. Pain, injuries and 20,000-00 20,000-00
sufferings
3. Loss of future 15,750-00 15,750-00
earnings
4. Loss of amenities and 15,000-00 50,000-00
enjoyment in life
5. Conveyance, 5,000-00 15,000-00
nourishment and
attendant charges
Total 74,750-00 1,19,750-00
Therefore, the compensation amount is hereby enhanced from Rs.74,750/- to Rs.1,19,750/-.
The Insurance Company is directed to deposit the entire compensation amount along with interest @ 6% p.a. before the learned Tribunal. 50% of the compensation amount shall be released to the claimant forthwith. The remaining 50% of the compensation amount shall be kept in a Nationalized Bank, in a Fixed 12 Deposit, to be renewed annually till the appellant reaches the age of majority.
Sd/-
JUDGE Prs*