Karnataka High Court
Minor Nagaraj S/O. Late Yenkappa vs Y Srinivasaulu S/O. Venkanna on 5 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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MFA No. 25901 of 2011
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 05TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
MISCELLANEOUS FIRST APPEAL NO.25901/2011 (MV)
BETWEEN:
MINOR NAGARAJ S/O. LATE YENKAPPA,
AGED ABOUT 15 YEARS,
SINCE MINOR REP. BY HIS NATURAL
MOTHER, GUARDIAN AND NEXT FRIEND
DODDABASAMMA W/O. LATE YENKAPPA,
AGED ABOUT 40 YEARS,
R/O: OLD MADAPUR VILLAGE, SANDUR TALUK,
BALLARI DISTRICT.
...APPELLANT
(BY SRI Y. LAKSHMIKANT REDDY, ADVOCATE)
AND:
1. Y. SRINIVASALU S/O. VENKANNA,
AGED ABOUT 41 YEARS,
OWNER OF THE LORRY BEARING
NO.KA-02-AA-6348,
Digitally
signed by R/O: WARD NO.7, VENKATAMMA COLONY,
BHARATHI KAKARLATHOTA, BALLARI.
HM
2. THE BRANCH MANAGER,
BAJAJ ALLIANZ INSURANCE CO., LTD.,
DOUBLE ROAD, BALLARI.
...RESPONDENTS
(BY SRI JADAI MANJUNATH, ADVOCATE FOR R1;
SRI RAVINDRA R. MANE, ADVOCATE FOR R2.)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MOTOR VEHICLES ACT, 1988, PRAYING TO
MODIFY THE JUDGMENT AND AWARD DATED 13.09.2011, PASSED
BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL-X, BALLARI, IN MVC
NO.319/2011 AND ETC.,.
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MFA No. 25901 of 2011
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the claimant challenging the
judgment and award dated 13.09.2011, in MVC
No.319/2011, passed by the Motor Accident Claims
Tribunal-X, Ballari, seeking enhancement of compensation
as well as on the ground of liability fastened on the owner
of lorry.
2. The factum of accident, injuries sustained by
the claimant in the accident are not in dispute in this case.
Whether the insurance company is liable to pay
compensation by indemnifying the owner is the disputed
fact in this case.
3. Brief facts of the case. It is stated that the
claimant was a minor boy of 15 years old at the time of
accident, who was standing in front of the bicycle shop to
fill up air to the tyres of his bicycle on Kuditini Kampli road
at Hosa Daroji village to go to his school at about
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09.00 a.m. on 20.09.2010 and respondent No.1 being the
driver of the lorry No.KA-02/AA-6348 came from Kudithini
side in a rash and negligent manner with a high speed,
dashed the minor claimant. As such, the wheels of the
lorry ran over the right foot of the claimant, as a result the
claimant sustained grievous injuries to the right leg
resulting into amputation of right leg below the knee.
Therefore, the claimant has filed claim petition seeking
compensation and the tribunal awarded compensation
fixing liability on the owner of the lorry on the ground that
the driver of the lorry was not holding the driving licence
as on the date of accident.
4. Heard the arguments and perused the records.
5. In the present case, the accident occurred on
20.09.2010. The vehicle is a heavy goods vehicle/lorry.
Admittedly the driving licence of the driver was expired on
28.08.2009. Therefore, before one year of the accident the
driving licence was expired and was not got renewed.
Therefore the tribunal is correct in fastening liability on the
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owner of the lorry to pay compensation. Since there is
breach of conditions of insurance policy, insurance
company is not liable to indemnify the owner and to pay
compensation. Therefore, in this regard so far as liability is
concerned, there is no merit found in the contention raised
by the claimant/appellant so far as liability fastened on the
owner of lorry.
6. In the present case, the driver of the offending
vehicle/lorry did not have driving licence to drive the lorry.
Therefore the insurance company is able to establish the
defence as per sub-section (1) of section 149 of M.V.Act.
Hence as per sub-section (1), (5) and (7) of section 149 of
the M.V.Act, and also 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
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in the case of NEW INDIA ASSURANCE COMPANY
LIMITED VS. YELLAVVA AND ANOTHER reported in
2020 ACJ 2560, the insurance company shall satisfy the
claim at the first instance to the claimant and then recover
it from the owner of the offending lorry. However, the
insurance company is at liberty to file execution petition
before the jurisdictional executing Court as against the
owner of the offending lorry and may seek attachment of
movables or immovable properties or both, till recovery is
made and also the recovery process can be as per the
decision of the Hon'ble Supreme Court in Oriental
Insurance Co. Ltd., vs. Nanjappan and others,
reported in 2004 AIR SCW 952. Therefore, pay and
recovery order is made.
7. The learned counsel for respondent insurance
company submitted that the claimant is a minor boy of 15
years old. Therefore computation of compensation be
made as per the judgment of the Hon'ble Supreme Court
in the case of Master Mallikarjun vs. Divisional
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Manager, the National Insurance Company Limited
and another, reported in AIR 2014 SC 736.
8. The claimant was 15 years old boy and near to
attending the age of majority and at this age the claimant
suffered amputation of right leg. Therefore, the
compensation can be awarded following the principles of
law laid down by the Hon'ble Supreme Court in the case of
Raj Kumar vs. Ajay Kumar and another reported in
(2011) 1 SCC 343 and Sarla Verma (Smt) and others
vs. Delhi Transport Corporation and another,
reported in (2009) 6 SCC 121. Hence the contention of
the learned counsel for respondent insurance company is
rejected.
9. In the present case the claimant was aged 15
years old minor boy suffered grievous injuries resulting in
amputation of his right leg below knee. The nature of
injuries are not disputed including amputation of right leg
as it is proved from the medical evidence on record and
photographs produced before the tribunal.
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10. The tribunal has awarded compensation under
various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Pain and sufferings. 60,000
2. Medical expenses. 15,000
3. Attendant charges. 4,500
4. Nursing and extra nourishment 5,000
and for special diet.
5. Loss of earning during the --
treatment period.
6. Loss of future earnings and 3,88,800
amenities.
7. Loss of future marriage 10,000
prospects.
Total: 4,83,300
11. The tribunal has taken only 16% as functional
disability which is not correct. The claimant being a minor
boy has to suffer throughout his life unable to fulfill his
dream of serving as police or in military or an agriculturist.
Therefore the claimant is constrained only to do what he is
able to with one leg. Therefore the Court opined that it is
amounting to 100% functional disability. I rely upon the
judgment in the case of Raj Kumar vs. Ajay Kumar and
another reported in (2011) 1 SCC 343.
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12. Therefore, the compensation of Rs.1,00,000/- is
awarded for injuries, pain and suffering. The compensation
of Rs.15,000/- awarded by the tribunal towards medical
expenses and hospital charges is as per the actual bills
and receipts produced; therefore, the same is kept intact.
The compensation of Rs.20,000/- is awarded under the
head incidental expenses like food, nourishment,
attendant charges, conveyance, etc.,.
13. The claimant was aged 15 yeas old minor boy.
Therefore appropriate applicable multiplier is 18. The
accident is caused on 20.09.2010. Therefore notional
income of Rs.5,500/- per month is to be considered. As
per the age group mentioned in National Insurance
Company Limited vs. Pranay Sethi and others,
reported in (2017) 16 Supreme Court Cases 680, and
as per the Division Bench judgment of this Court in New
India Assurance Company Vs. Abdul S/o Mehaboob
Tahasildar in MFA No.103807/2016 C/w. MFA
Nos.103835/2016 & 103807/2018 and as per the
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judgment of the Hon'ble Supreme Court in the case of
Sidram vs. Divisional Manager, United India
Insurance Company Limited and another reported in
(2023) 3 SCC 439, even in the case of injuries, certain
income is to be added towards loss of future prospects in
life.
14. The claimant was aged 15 years old at the time
of accident. Accordingly 40% of the income is to be added
towards loss of future prospects in life. Therefore, the
compensation towards loss of future earning capacity due
to disability is reassessed and quantified as
Rs.16,63,200/- (Rs.5,500 + 40% x 12 x 18).
15. Further, a compensation of Rs.50,000/- is
awarded towards loss of marriage prospects in life and
Rs.75,000/- is awarded towards loss of amenities. Further,
Rs.50,000/- towards future medical expenses for inserting
artificial limb, etc.,.
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16. Thus, the claimant is entitled for total
compensation under various heads as under:
Sl. Heads. Amount in
No. (Rs.)
1. Towards injuries, pain and 1,00,000
suffering.
2. Towards medical expenses. 15,000
3. Towards loss of amenities. 75,000
4. Towards loss of marriage 50,000
prospects.
5. Towards incidental charges like 20,000
attendant charges, food,
nourishment, conveyance, etc.,.
6. Towards future medical 50,000
expenses.
7. Towards loss of future earning 16,63,200
capacity.
Total: 19,73,200
17. Therefore, the claimant is entitled for total
compensation of Rs.19,73,200/-, along with interest at the
rate of 6% p.a. from the date of filing of the petition till
realization, as against Rs.4,83,300/- awarded by the
Tribunal.
18. Since insurance company is exonerated from
liability to pay compensation, in order to protect interest of
the claimant, it is directed that the insurance company
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shall satisfy the claim to the claimant at the first instance
within a period of eight weeks from the date of receipt of a
certified copy of this judgment and then recover it from
the owner of the lorry. The appellant insurance company is
at liberty to file execution case before the jurisdictional
executing Court directly for recovery of the amount from
the owner of lorry and also may seek for an order of
attachment of movables and immovable properties or both
till the amount is recovered.
19. In the result, I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and award dated
13.09.2011, in MVC No.319/2011, passed by
the Motor Accident Claims Tribunal-X, Ballari,
stands modified.
iii) The claimant is entitled for total
compensation of Rs.19,73,200/-, along with
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interest at the rate of 6% p.a. from the date of
filing of the petition till realization, as against
Rs.4,83,300/- awarded by the Tribunal.
iv) The said compensation amount shall
be paid by the insurance company initially,
within a period of eight weeks from the date of
receipt of a certified copy of this judgment and
then recover the same from the owner of the
lorry.
v) The appellant insurance company is
at liberty to file execution case before the
jurisdictional executing Court directly for
recovery of the amount from the owner of lorry
and also may seek for an order of attachment of
movables and immovable properties or both till
the amount is recovered.
vi) Send back the trial Court records
along with a copy of this judgment.
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vii) No order as to costs.
viii) Draw award accordingly.
SD/-
JUDGE
MRK
CT-ASC
