Sri Ganesh vs Sri Amaresh Reddy
2021 Latest Caselaw 128 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 5TH DAY OF JANUARY 2021

                     BEFORE

THE HON'BLE MR. JUSTICE H. T. NARENDRA PRASAD

            MFA No.4524 OF 2013(MV)

BETWEEN:

SRI. GANESH
S/O SHEKHARAPPA
AGED ABOUT 9 YEARS, MINOR
REPRESENTED BY HIS NATURAL
GUARDIAN MOTHER
SMT. GANGAMMA
W/O SHEKHARAPPA
AGED ABOUT 37 YEARS
COOLI, RESIDENT OF
HIREGUNTANUR
CHITRADURGA TALUK,
CHITRADURGA DISTSTRICT.
                                   ... APPELLANT
(BY SRI. T.C.SHIVAKUMARAPPA, ADV. FOR
SRI. B.M. SIDDAPPA, ADV.)

AND

1.    SRI. AMARESH REDDY
      S/O APPANNA REDDY
      AGED ABOUT 42 YEARS
      103A ALKUNDI, BELLARY.

2.    REGIONAL MANAGER
                            2



      SRIRAM GENERAL INSURANCE CO. LTD.,
      REGIONAL OFFICE
      10003-E-8, RIICO
      INDUSTRIAL AREA, SEETHAPURA
      JAIPUR, RAJASTHAN-302022.

                                      ... RESPONDENTS
(BY SRI. O.MAHESH, ADV. FOR R2:
NOTICE TO R1 IS HELD SUFFICIENT
V/O DATED:25.04.2019)

      THIS MFA IS FILED UNDER SECTION 173(1) OF
MV    ACT    AGAINST   THE JUDGMENT         AND AWARD
DATED:04.04.2013 PASSED IN MVC NO.1/2011 ON
THE FILE OF THE PRL. CIVIL JUDGE(SR.DN) AND
ADLL. MACT-IV, CHITRADURGA PARTLY ALLOWING
THE   CLAIM    PETITION    FOR    COMPENSATION        AND
SEEKING ENHANCEMENT OF COMPENSATION.
      THIS    MFA    COMING      ON   FOR     ADMISSION,
THROUGH      VIDEO     CONFERENCE,     THIS    DAY,   THE
COURT DELIVERED THE FOLLOWING:


                       JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 4.4.2013 passed by

the Motor Accident Claims Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 6.7.2010 the claimant was

moving towards school at Hireguntanur village, at that

time, lorry bearing registration No.KA-34-5485 being

driven by its driver at a high speed and in a rash and

negligent manner, dashed to the vehicle of the

claimant. As a result of the aforesaid accident, the

claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act on the ground that he was aged about

7 years at the time of the accident and studying in VI

Std. It was pleaded that he also spent huge amount

towards medical expenses, conveyance, etc. It was

further pleaded that the accident occurred purely on

account of the rash and negligent driving of the

offending vehicle by its driver.

4. On service of notice, the respondents filed

written statement in which the averments made in the

petition were denied. It was pleaded that the petition

itself is false and frivolous in the eye of law. It was

further pleaded that the accident was due to the rash

and negligent riding of the motorcycle by the rider of

the motorcycle. The age, injury and medical expenses

are denied. It was further pleaded that the driver of

the lorry was not having valid driving licence and

liability, if any, is subject to terms and conditions of

the policy. Hence, they sought for dismissal of the

petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The mother of the claimant

was examined as PW-1 and Dr.Nitin A.B. as PW-2 and

got exhibited documents namely Ex.P1 to Ex.P189.

On behalf of the respondents, one witness was

examined as RW-1 and got exhibited documents

namely Ex.R1 to Ex.R3. The Claims Tribunal, by the

impugned judgment, inter alia, held that the accident

took place on account of rash and negligent driving of

the offending vehicle by its driver, as a result of

which, the claimant sustained injuries. The Tribunal

further held that the claimant is entitled to a

compensation of Rs.2,16,700/- along with interest at

the rate of 6% p.a. and directed the owner of the lorry

to deposit the compensation amount along with

interest. Being aggrieved, this appeal has been filed.

6. The learned counsel for the claimant

submitted that the Tribunal is not justified in fastening

the liability on the insured/RC owner of the lorry on

the ground that the driver of the lorry was not having

valid driving licence at the time of the accident. In

support of his case, he has relied upon Full Bench

decision of this Court in the case of 'NEW INDIA

ASSURANCE CO. LTD. BIJAPUR vs. YALLAVVA

AND ANOTHER' ILR 2020 Kar.2239.

Secondly, the claimant was aged about 7 years

at the time of the accident. As per wound certificate

Ex.P-5, he has sustained CLW 15x6 cm at left leg

below the knee, crush injury 10x5 cm at right tarsal

(ankle), pain and tenderness at neck. PW-2, Nitin A.B

has deposed that the claimant has suffered physical

disability of 60% to whole body. Due to the accident,

the claimant has sustained grievous injuries. He was

treated as inpatient for a period of 3 months 22 days.

Even after discharge from the hospital, he was not in

a position to discharge his regular work. He has

suffered lot of pain during treatment. Considering the

same, the compensation granted by the Tribunal

under the heads of 'loss of amenities', 'pain and

sufferings' and other heads are on the lower side. In

support of his case, he has relied upon the decision of

the Apex Court in the case of Mallikarjun -v-

Divisional Manager, National Insurance

Company Limited and Another (2014) 14 SCC

396. Hence, he sought for allowing the appeal.

7. On the other hand, the learned counsel for

the Insurance Company has contended that the

neither the driver nor the owner of the lorry have

produced the driving licence of the driver of the lorry.

The driver of the lorry was not having valid licence as

on the date of the accident and therefore the Tribunal

has rightly fastened the liability on the owner of the

lorry.

Secondly, considering the oral and documentary

evidence on record, the Tribunal has granted just and

reasonable compensation and it does not call for

interference. Hence, he sought dismissal of the

appeal.

8. Heard the learned counsel for the parties

and perused the records.

9. It is not in dispute that the accident has

occurred due to rash and negligent driving of the

offending vehicle by its driver.

The owner of the offending lorry has not

produced the valid driving licence of the driver of the

lorry and since the same is not produced and marked,

the Tribunal considering the materials available on

record has given a finding that the driver of the

offending lorry was not having valid driving licence as

on the date of the accident and fastened the liability

on the owner of the lorry. The said finding of the

Tribunal is not challenged by the driver or the owner

of the offending vehicle. However, in view of the law

laid down by the Full Bench decision of this Court in

the case of 'NEW INDIA ASSURANCE CO. LTD.

BIJAPUR vs. YALLAVVA AND ANOTHER' ILR 2020

Kar.2239, the Insurance Company is liable to pay

compensation to the claimants with liberty to recover

the same from the owner of the offending vehicle.

10. Regarding awarding of just and fair

compensation to a minor child aged about 12 years,

who sustained injuries in the road traffic accident, the

Apex Court in the case of Mallikarjun (supra) in

paragraphs 12 and 13 has held as follows.

"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 compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 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 Re.1 lakh, unless there are exceptional circumstances to take different yardstick."

13. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: -

Compensation Head Amount Pain and suffering already 3,00,000 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 Discomfort, inconvenience and 25,000 loss of earnings to the parents during the period of hospitalization Medical and incidental 25,000 expenses during the period of hospitalisation for 58 days Future medical expenses for 25,000 correction of the mal union of fracture and incidental for such treatment TOTAL 3,75,000

11. In the present case, the claimant is aged

about 7 years. As per wound certificate, the claimant

has sustained CLW 15x6 cm at left leg below the

knee, crush injury 10x5 cm at right tarsal (ankle),

pain and tenderness at neck. PW-2, Nitin A.B has

deposed that the claimant has suffered physical

disability of 60% to whole body. He was treated as

inpatient for a period of 3 months 22 days. In the

cross examination, PW-2, has admitted that he is a

Consultant in Plastic Surgery and he is not an

Orthopedic Surgeon. Taking into consideration the

evidence of the claimant and PW-2 and injuries

mentioned in the wound certificate, the whole body

disability can be taken at 40%.

In view of the decision of the Apex Court in the

case of Mallikarjun (supra), the claimant is entitled to

the following compensation:

Compensation under Compensation different Heads Amount (Rs.) Pain and suffering already 4,00,000 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 Food, nourishment, conveyance 50,000 and attendant charges Medical expenses 66,700 Total 5,16,700

The claimant is entitled to a total compensation

of Rs.5,16,700/- as against Rs.2,16,700/- awarded

by the Tribunal.

The Insurance Company is directed to deposit

the compensation amount along with interest at 6%

p.a. within a period of four weeks from the date of

receipt of copy of this judgment with liberty to recover

the same from the owner of the offending lorry.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

Accordingly, the appeal is disposed of.

Sd/-

JUDGE DM