Sudhir S/O Joma Kadolkar vs Uday B.Hulmani
2022 Latest Caselaw 6258 Kant

              IN THE HIGH COURT OF KARNATAKA,
                        DHARWAD BENCH

           DATED THIS THE 07TH DAY OF APRIL, 2022

                            BEFORE
         THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA

 MISCELLANEOUS FIRST APPEAL NO. 22078 OF 2009 (MV-I)


BETWEEN:
     SUDHIR S/O JOMA KADOLKAR
     AGE: 19 YEARS, OCC:NIL,
     R/O DEVGIRI VILLAGE,
     TQ AND DIST. BELAGAVI.
                                                      ...APPELLANT
(BY SRI.PRASHANT HOSAMANI, ADVOCATE)


AND:
1.     UDAY B HULMANI
       FATHER'S NAME NOT KNOWN
       AGE:MAJOR, OCC:BUSINESS,
       R/O MUTNAL, TQ AND DIST BELAGAVI.
2.     THE DIVISIONAL MANAGER
       BAJAJ ALLIANZ GENERAL INSURANCE CO LTD.,
       DIV. OFFICE, OPP.SANMAN HOTEL,
       BELAGAVI.
                                                  ...RESPONDENTS
(BY SRI. M. K. SOUDAGAR, ADV. FOR R2;
R1- SERVED AND UNREPRESENTED)

        THIS MFA FILED UNDER SECTION 173 (1) OF M V ACT 1988,
AGAINST THE JUDGMENT AND AWARD DATED 24.02.2009 PASSED
IN MVC NO.2731/2006 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.
DN.)    AND   MACT,   BELAGAVI,   PARTLY   ALLOWING   THE   CLAIM
PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT FOR
COMPENSATION.
                               -2-




                                       MFA No. 22078 of 2009


     THIS APPEAL IS COMING ON FOR HEARING, THIS DAY, THE
COURT MADE FOLLOWING:
                        JUDGMENT

The claimant, a 16 year old, was riding pillion on a

Hero Honda Motor Cycle being driven by his father on

04.11.2005. The father of the claimant lost control over

the vehicle and as a result the motor cycle fell down and

the claimant suffered grievous head injuries and was

admitted to K.L.E Hospital.

2. The summary sheet issued by K.L.E college,

which is produced as Ex.P.6, records that the Diagnosis as

"Hemorrhagic Contusion four External Capsule and Right

Parietal Region". It states that the claimant had suffered

loss of consciousness and there was no change in

conscious level after injury. The claimant was infact

admitted on 04.11.2005 and discharged on 02.12.2005.

3. There are two other summary sheets produced

as Ex.P.7 and P.8 which indicate that the claimant was

MFA No. 22078 of 2009

admitted on 30.1.20005 and continued to be an inpatient

till 16.03.2006.

4. The summary sheet, Ex.P.7, states that the

claimant had been admitted in NSICU and was re-admitted

to the general ward due to financial constraints. The other

summary sheet, Ex.P.8, also states that the claimant had

suffered severe head injury with loss of consciousness,

loss of speech and inability to recognize.

5. Thus, though the accident occurred in

November-2005 even after a period of nearly five months,

the claimant had not regained consciousness and he had

lost his speech and his ability to recognize. The summary

sheet also records that the claimant had spasticity of all

four limbs.

6. The claimant has also produced a permanent

disability certificate issued by Neuro Surgeon, Dr. N. Y.

Joshi, in which it is stated that the claimant had

permanently lost his speech, had a permanent impairing of

MFA No. 22078 of 2009

all fourlimbs i.e. legs and arms and he was unable to walk

independently and was totally dependent on some body

for his daily basic functions and this amounted to 100%

loss of functions and also a permanent disability.

7. The Tribunal on consideration of the evidence

refused to accept the disability at 100% on the ground

that the person who issued Ex.P.10 and who was infact

examined was not the treated doctor and it came to the

conclusion that the disability would only be around 15%.

8. The Tribunal accordingly awarded the following

sums:

1.   Pain and sufferings                           50,000/-
2.   Loss of amenities                             30,000/-
3.   Medical expenses                            1,25,000/-
4.   Loss of study and future career               75,000/-
     prospectus
5.   Attendant charges and conveyance              10,000/-
     Total                                       2,90,000/-

9. The Tribunal, thereafter, proceeded to hold that

the driving license of the father of the claimant had

MFA No. 22078 of 2009

expired 4 ½ months prior to the accident and therefore as

on the date of the accident he did not possess a valid and

effective license. As a consequence the Tribunal held that

the compensation was liable to be paid by the owner of

the vehicle who was lent his vehicle to the claimant's

father and it absolved the Insurance Company of all

liability.

10. It is to be stated here that as a matter of fact

the driving license of the claimant's father was renewed

from 07.12.2005 for a period upto 30.06.2005. In other

words about five months after the accident; the driving

license of the father had been renewed.

11. The learned counsel for the claimant contends

that as per the Division Bench ruling of this court in MFA

No.103680/2015 and connected matter, in which a ruling

of another Division Bench in MFA No.23308/2011 has been

followed, it is held that the mere expiry of license would

not by itself absolve the liability of the Insurance

MFA No. 22078 of 2009

Company. In fact the Division Bench has noticed that

merely because the period of license had expired and

there was an omission on the part of the driver to get the

license renewed, that would not amount to a breach of a

condition of the policy which would enable the insurance

company to be exonerated of its liability.

12. The learned counsel for the insurer on the other

hand contended that in view of the decision rendered by

the Apex Court in Ram Babu Tiwari Vs. United India

Insurance Co.Ltd and others reported in SC 2008 ACJ

2654. The award of the Tribunal was proper and it was

justified in exonerating the insurance company for all

liability.

13. The Division Bench of this Court in K.G. Srinivas

Murthy Vs. B. Khatun has held that if an application was

made for renewal within the period of five years as

contemplated under Section 15(4) of the M.V. Act, the

authority cannot refuse to renew the license if the

MFA No. 22078 of 2009

prescribed fee had been paid and only if, an application

had been made beyond the period of five years, the

applicant was required to undergo a test to prove he had

the competence to drive the motor vehicle. The Division

Bench concluded that a person would attract a dis-

qualification to drive the vehicle only if he has to under go

a fresh driving test and obtain a fresh driving license.

14. In other words notwithstanding the expiry of

license, for a period of five years, which has now been

reduced to one year, the law recognizes that the person

who had obtained a license to drive a motor vehicle

would not have lost his ability to drive and he still retained

the ability and skill to drive the motor vehicle.

15. The law presumes that only after a period of

five years from the date of expiry of the license, the

person who possessed the driving license could have lost

his competence to drive the vehicle and he would

therefore be required to take a test afresh to satisfy the

MFA No. 22078 of 2009

licensing authority that he had not lost his competence to

drive the motor vehicle for which he had been originally

licensed.

16. In the instant case, admittedly an application for

renewal was made within five and half months and the

license was also renewed. The renewal of the license

indicates that the competence of the license holder to

drive was not lost and this had been acknowledged by the

licensing authority by granting the renewal.

17. It is no doubt true that under Section 15(1) the

renewal of a license takes effect from the date of its

renewal if the application is made 30 days after the expiry.

However, that had does not mean that a person would

have lost his competence to drive. No doubt a person who

drives a motor vehicle beyond the currency of his license,

is liable for certain consequences but that cannot ennure

to the benefit of the Insurance Company so as to absolve

MFA No. 22078 of 2009

itself of liability as held in by three Judge Bench heads of

the Supreme Court in Swaran Singh's case.

18. What is important to be noticed here is as to

whether the lack of driving skills had resulted in the

accident and as a consequence the Insurance Company

could plead for exoneration of its liability by virtue of this

fact.

19. If it is established that a person possessed the

necessary competence to drive and had been duly licensed

earlier, the Insurance Company cannot contend that there

was a breach of the policy conditions and their liability

stood exonerated. In that view of the matter, the

fastening the liability on the owner in the instant case

would be incorrect.

20. The Insurance Company by virtue of the

decision the Division Bench Rulings of this Court referred

to above would be liable for compensation. It is to be

stated here that the Division Bench has in fact considered

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MFA No. 22078 of 2009

the decision of the Apex Court in Ram Babu Tiwari's

case and distinguished it. Thus, the reliance on the said

judgment by the Insurer would be of no avail.

21. As far as compensation is concerned the

claimant was aged 14 years old as on the date of the

accident. As per the chart prepared by the Karnataka

Legal Services Authority in respect of motor vehicle

accident victims of the year 2005, the income is to be

determined at Rs.3,500/-.

22. To the said sum of Rs.3,500/- since the

claimant had suffered 100% disability, 40% is required to

be added towards future prospects. As the claimant was

aged 14 years a multiplier of 15 would have to be

adopted. This results in the claimant being entitled to sum

of (i.e. Rs.4,900/- X 12 X 15=) Rs.8,82,000/- towards loss

of future prospects.

     23.    The     Tribunal    has      awarded     a     sum    of

Rs.1,25,000/- towards medical expenses.                  As noticed
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                                      MFA No. 22078 of 2009

above, the claimant was hospitalized from 04.11.2005 to

16.03.2006 i.e. nearly for a period of six months during

which period he was in the ICU and was thereafter shifted

to the general ward due to financial constrains. In that

view of matter, in my view it would be appropriate to

award sum of Rs.2,50,000/- towards medical expenses as

against the sum of Rs.1,25,000/- awarded by the Tribunal.

24. The learned counsel for the appellant furnished

a recent judgment of the Supreme Court rendered in the

case of Master Ayush Vs. The Branch Manager, Reliance

General Insurance Co. Ltd., and antoher in Appeal

Nos.2205-2206 of 2022 which also relates to a case of a 5

year old victim of motor vehicle accident who had become

a paraplegic. He contended that the claimant herein was

also completely immobile just as a paraplegic and he was

totally depending upon somebody else for his daily basic

functions.

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MFA No. 22078 of 2009

25. The medical evidence on record also clearly

establishes that the claimant has lost its mobility

completely and he is dependant on somebody for his day

to day needs.

26. The learned counsel contends that a sum of

Rs.10,00,000/- be awarded towards pain and suffering

and loss of amenities as has been awarded in the

aforementioned decision of the Hon'ble Supreme Court. He

also claims that the claimant would be entitled to the same

sum that has been awarded towards loss of marriage

prospects and attendant charges which was Rs.8,00,000/-

in that case.

27. In my view, this argument of the learned

counsel deserves acceptance, at least in part. In my view,

justice would be served if the claimant is awarded a sum

of Rs.5,00,000/- towards pain and suffering and loss of

amenities and a sum of Rs.3,00,000/- is awarded towards

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MFA No. 22078 of 2009

loss of marriage prospects and a further sum of

Rs.3,00,000/- is awarded towards attendant charges.

28. In view of the above, the compensation

awarded by the Tribunal is re-assessed and in substitution

of the sums awarded by the Tribunal the claimant is held

to be entitled to the following sums :

For pain and suffering and loss Rs.5,00,000/- of amenities

For loss of future earnings Rs.8,82,000/-

For loss of marriage prospects Rs.3,00,000/-

For attendant charges and Rs.3,00,000/- conveyance

For medical expenses Rs.2,50,000/-

Total Rs.22,32,000/-

29. Thus, the claimant is entitled for total compensation

of Rs.22,32,000/- as against the sum of Rs.2,90,000/-

awarded by the Tribunal.

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MFA No. 22078 of 2009

30. In view of the above, I pass the following:

ORDER

The appeal is accordingly allowed.

The Judgment and Award dated 24.02.2009 passed

in M.V.C.No.2731/2006, on the file of the Principal Civil

Judge (Sr.Dn) Motor Accident Claims Tribunal, Belgaum, is

hereby modified. The claimant is entitled to a total

compensation of Rs.22,32,000/- as against the sum of

Rs.2,90,000/- awarded by the Tribunal.

The enhanced compensation of Rs.22,32,000/- shall

carry interest @ 6% p.a. from the date of claim petition till

the date of deposit,

The claimant would be entitled to interest at the rate

of 6% per annum from the date of petition till deposit.

The entire compensation payable to the claimant

shall however invest in a fixed deposit scheme in any

Nationalised Bank and the parents of the petitioner or the

petitioner would be entitled to withdraw the interest that

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MFA No. 22078 of 2009

accrues on the said FD and ensure that the interest

amount be utilized only towards upkeep of the claimant.

I am conscious of the fact that the claimant had

made a claim only for a sum of Rs.10,00,000/- in the

claim petition. However, it is noticed that the claim

petition was filed in the year 2006 and value of

Rs.10,00,000/- in 2006 cannot be compared with value at

Rs.10,00,000/- today. Further since I am obliged to grant

just compensation under the Act to victims of motor

vehicle accident, the amounts claimed by the victim would

not be a limiting factor for me to order payment of a sum

in excess of the claim.

Sd/-

JUDGE

SMM,CKK