Karnataka High Court
Kum. Tejeshwini D/O Revanappa ... vs Shri. Anand S/O Basavanneppa ... on 11 January, 2024
Author: S G Pandit
Bench: S G Pandit
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MFA No. 100412 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
MISCELLANEOUS FIRST APPEAL NO. 100412 OF 2022 (MV-I)
BETWEEN:
1. KUM. TEJESHWINI D/O. REVANAPPA HEMANAGOUDRA,
AGE: 23 YEARS, OCC. STUDENT, NOW NILL,
REPRESENTED BY HER NATURAL GUARDIAN
I.E. NEXT FRIEND MOTHER.
2. SMT. JAYAVVA W/O. REVANAPPA HEMANAGOUDRA,
AGE: 49 YEARS, OCC: HOUSEHOLD WORK,
R/O. MEDLERI VILLAGE, PIN-581221,
TQ: RANEBENNUR, DIST: HAVERI.
...APPELLANTS
(BY SRI. HANAMANT R. LATUR, ADVOCATE)
AND:
CHANDRASHEKAR 1. SHRI. ANAND S/O. BASAVANNEPPA PARASAPPANAVAR,
LAXMAN
KATTIMANI AGE: 50 YEARS, OCC: BUSINESS,
Digitally signed by R/O. AREMALLAPUR VILLAGE, PIN-581115.
CHANDRASHEKAR
LAXMAN KATTIMANI TQ. RANEBENNUR, DIST: HAVERI.
Date: 2024.01.22
17:20:28 +0530
2. THE LEGAL CLAIMS MANAGER,
SHRIRAM GENERAL INSURANCE CO. LTD,
1ST FLOOR, V. A. KALBURGI HALLMARK,
BESIDE INDUSLAND BANK, DESAI CROSS,
PINTO ROAD, HUBLI, PIN 580020, DIST: DHARWAD.
...RESPONDENTS
(BY SRI. VIJAYKUMAR K.KOTIN, ADV. FOR RESPONDENT NO.1;
SRI. NAGARAJ C.KOLLOORI, ADV. FOR RESPONDENT NO.2)
THIS MFA IS FILED UNDER SECTION 173(1) OF MOTOR
VEHICLE ACT, PRAYING TO ENHANCE THE COMPENSATION BY
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MFA No. 100412 of 2022
MODIFYING THE JUDGMENT AND AWARD PASSED BY MOTOR
ACCIDENT CLAIMS TRIBUNAL, RANEBENNUR, IN MVC NO.785/2018
DATED 29-04-2021 IN INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
S G PANDIT, J., DELIVERED THE FOLLOWING:
JUDGMENT
Though this appeal is listed for admission, with
consent of both learned counsel, matter is taken up for
final disposal.
2. The appellant-claimant through her natural
guardian mother is in appeal not being satisfied with the
quantum of compensation awarded under judgment and
award dated 29.04.2021 in M.V.C. No.785/2018 on the file
of the learned Motor Vehicle Accident Claims Tribunal,
Ranebennur (for short, 'Tribunal'), praying for
enhancement of compensation for the injuries sustained in
a road traffic accident.
3. Heard learned counsel Sri. Hanamant R.Latur,
for appellants-claimants, Sri. Nagaraj C.Kolloori, learned
counsel for respondent No.2 / Insurance Company and
Sri. Vijaykumar K.Kotin, learned counsel for respondent
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No.1 and perused the appeal papers along with original
records.
4. The appellant/claimant filed a claim petition
under Section 166 of the Motor Vehicles Act, 1988
claiming compensation for the injuries sustained in the
road traffic accident that occurred on 19.10.2016 involving
Mazda vehicle bearing registration No.KA-27/A-6476. It is
stated that the driver of the offending vehicle in a high
speed rash and negligent manner dashed to the appellant
who was proceeding on the left side of the road resulting
in severe head injuries to the claimant. It is stated that
claimant was aged 19 years as on the date of accident and
was a student studying in PUC.
5. On service of notice, respondent No.1/driver-
cum-owner remained ex-parte. Whereas respondent
No.2/Insurance Company appeared and filed its written
statement denying the claim petition averments. Further,
the Insurance Company contended that respondent No.1
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was not possessing the driving licence as on the date of
accident.
6. Before the Tribunal, the mother of the claimant
examined herself as PW1 and also examined PW2-doctor
and got marked documents as Exs.P1 to P22.
Respondent/Insurance Company examined RW1 and
marked Exs.R1 to R7 in support of their case. The Tribunal
on appreciation of the material on record awarded a total
compensation of Rs.6,51,276/- with interest at 7% per
annum from the date of petition till date of realization on
the following heads and saddled the liability on respondent
No.1 holding that respondent No.1/owner-cum-driver had
no licence to drive the offending vehicle.
Towards pain and suffering Rs. 25,000/-
Towards loss of future income Rs.3,00,000/-
Towards medical expenses Rs.1,16,276/-
Towards conveyance, food,
Nourishment expenses Rs. 10,000/-
Towards loss of marriage prospects Rs.2,00,000/-
------------------
Total Rs.6,51,276/-
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7. While awarding the above compensation, the
Tribunal awarded compensation of Rs.3,00,000/- under
the head of loss of future income placing reliance on
Master Mallikarjuna V/s Divisional Manager, the
National Insurance Company Limited and another1.
8. Learned counsel Sri Hanamant R.Latur for
claimant would submit that compensation awarded by the
Tribunal for the injury sustained by the claimant is on the
lower side and would submit that the claimant would be
entitled for much higher compensation. Learned counsel
would submit that the claimant has sustained severe head
injury and PW2-doctor, has opined that the claimant
suffered 85% head injury, which has resulted in 87.5%
whole body disability. Learned counsel would submit that
Ex.P15-disability certificate issued by Kasturba Hospital,
indicates whole body disability at 87.5%. Further, learned
counsel invites attention of this Court to order dated
05.12.2023 wherein this Court referred the appellant to
AIR 2014 SC 736
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Medical Board and the Medical Board, on examination,
submitted its report. In terms of the Medical Board report,
the claimant suffers 85% disability and further he submits
that the claimant suffers "Diffuse Cerebral Diema and
bilateral subdural hygroma and diffuse exonal." Further,
learned counsel would submit 85% whole body disability is
to be considered as 100% functional disability and the
claimant would not be in a position to move without the
help of attendant. In that circumstance, he prays for
considering 100% disability.
9. Learned counsel would pray for assessing the
income notionally and for the accident of the year 2016,
he submits that notional income would be Rs.8,750/- in
terms of the chart prepared by the Karnataka Legal
Services Authority. Learned counsel would submit that the
compensation awarded on the head of pain and suffering,
towards conveyance, food and nourishment and towards
loss of marriage prospects are on the lower side and prays
for enhancement appropriately. Further, learned counsel
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would submit that the claimant would be entitled for
adding 40% of the income assessed towards future
prospects. Learned counsel would place reliance on the
decision of the Hon'ble Apex Court in the case of Kajal
V/s Jagadish Chand and others2 and also Rajeev
Sharma V/s Yogendra Singh and others3 to submit
that it is a case for considering 100% functional disability.
Thus, he prays for allowing the appeal and to enhance the
compensation.
10. Insofar as liability saddled on respondent
No.1/driver-cum-owner, learned counsel would submit
that it is a case for pay and recovery and it is for the
Insurance Company to pay at the first instance and to
recover the same from the 1st respondent in terms of the
full bench decision of this Court in the case of New India
Assurance Company Limited V/s Yallavva and
another4.
(2020) 4SCC 413
2023 ACJ 633
ILR 2020 KAR 2239
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11. Per contra, learned counsel Sri Nagaraj
C.Kolloori for respondent-Insurance Company would
submit that the Tribunal rightly awarded just
compensation, which needs no interference. Further,
learned counsel would submit that the appellant-claimant
is not aged 18 years as contended. He submits that she is
a minor aged about 17 years. Therefore, he submits that
notional income cannot be taken and rightly the Tribunal
awarded compensation in terms of Master Mallikarjun
case (supra). Learned counsel would further submit that
admittedly respondent No.1/driver-cum-owner of the
vehicle had no licence and therefore, the Tribunal rightly
saddled liability on respondent No.1. Hence, he prays for
dismissal of the appeal.
12. Having heard the learned counsel for the parties
and on perusal of the appeal papers along with original
records, the following points that would fall for
consideration in this appeal.
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i. Whether the quantum of compensation
awarded by the Tribunal is just
compensation?
ii. Whether the Tribunal is justified in saddling
the liability on 1st respondent?
13. Answer to the above points is 'in the negative'
for the following reasons.
14. The accident that occurred on 19.10.2016
involving Mazda vehicle bearing registration No.KA-27/A-
6476 and the injuries sustained by the claimant is not in
dispute in this appeal. The claimant is before this Court
seeking enhancement of compensation not being satisfied
with the quantum of compensation awarded by the
Tribunal.
15. Before the Tribunal, the mother of the claimant
examined herself as PW1. She has stated that her
daughter was studying in PUC Science and she was a
brilliant student. She has also deposed that her daughter
sustained injuries all over the body. In the cross-
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examination, she has stated that claimant/daughter
suffered grievous injury to the head. In support of
claimant's case, PW2-doctor was examined. PW2 working
as a Neurosurgeon, Manipal Hospital has opined that
claimant suffers from 87.5% disability due to injury
suffered by her. He has stated that the claimant has
suffered "Diffuse Cerebral Diema and bilateral subdural
hygroma and diffuse exonal." Ex.P15 is disability
certificate issued by the Kasturba Hospital, which indicates
that the claimant suffers 87.5% disability. Ex.P15 also
indicates that her CT brain revealed diffuse cerebral
edema and bilateral subdural hygroma and contusions
suggestive of diffuse axonal injury.
16. This Court by order dated 05.12.2023 referred
the claimant to Medical Board for the purpose of
examining the disability. The Medical Board on
examination has forwarded its opinion under the Medical
Board Certificate dated 18.12.2023, which reads as
follows:
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"With reference to your letter, after Medical
examination of MS. Tejaswini Revanappa
Hemanagoudra 23 yrs, Female, UHID
No.20230379691 a case of Head Injury treated at
SS Medical College Davangere and Kasturba
Medical College year 2016 is Disability Percentage :
85% (Eighty Five Percent)."
17. The above Medical Board Certificate confirms
that claimant-appellant suffers from 85% disability due to
head injury. Due to her head injury to an extent of 85%
disability, the claimant would not be in a position to carry
out any work which means it is to be assessed at 100%
functional disability.
18. Ex.P16 is claimant's SSLC marks card, which
indicates date of birth of the claimant as 02.10.1999. As
on the date of accident in terms of the date of birth, the
appellant-claimant was aged 17 years. In the case of
Kajal (supra), the Hon'ble Apex Court observed that while
assessing the income or notional income, each case has to
be decided on its own evidence and the Hon'ble Apex
Court for the purpose of determining the compensation
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took Rs.4,846/- per month minimum wages and awarded
compensation. In the said case, the claimant was aged 12
years. In the instant case, the claimant is aged 17 years
and taking note of the minimum wages notified, it would
be appropriate to assess notional income of the claimant-
appellant at Rs.8,000/- per month. Further in terms of
Kajal case (supra), the appellant/claimant would be
entitled for adding 40% of the assessed income towards
future prospects. The claimant-appellant has suffered 85%
total whole body disability and we have assessed 100%
functional disability. Thus, the claimant would be entitled
for modified compensation on the head of loss of future
income as under:
Rs.8,000(Income) + 40%(future prospects) x 12 (months)
x 18 (multiplier) x 100% disability = Rs.24,19,200/-
19. Since the claimant is not in a position to move
without the attendant. The claimant-appellant would also
be entitled for attendant charges of Rs.1,00,000/-.
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20. The compensation awarded by the Tribunal on
other heads also on the lower side. The claimant-appellant
was inpatient for more than 23 days and has suffered
severe head injury. Therefore, we are of the opinion that
the compensation of Rs.25,000/- awarded on the head of
pain and suffering is on the lower side. The same is
enhanced to Rs.1,00,000/-. The compensation awarded
on the head of conveyance, food, nourishment at
Rs.10,000/- is also on the lower side, when the claimant
was inpatient for more than 23 days. Hence, the same is
enhanced to Rs.25,000/-.
21. The compensation awarded by the Tribunal on
the head of loss of marriage prospects at Rs.2,00,000/- is
on the lower side. Taking note of the injury/disability
suffered by the claimant, we are of the view that the
claimant has lost her marriage prospects. A co-ordinate
bench of this Court had an occasion to consider awarding
compensation on non-pecuniary head i.e. loss of marriage
prospect in a case reported in ILR 2022 KAR 793, Sri
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Basavaraj V/s Sri Umesh and another, at Paragraphs
13 to 15 has held as follows:
"13. Keeping in mind the above-said
principles governing the award of compensation on
non-pecuniary heads this court has to guestimate
the compensation payable to the claimant. As
already noted above the disability suffered by the
claimant is irreversible which destroyed his marriage
prospect. Even if married, the claimant is not in a
position to perform certain conjugal obligations. The
claimant is deprived of conjugal bliss. The claimant
cannot have children of his own.
14. The concept of the institution of
marriage is one of the noblest concepts evolved by
society. Marriage, in addition to providing support,
happiness, companion and progeny will also confer
purpose and meaning to life. Married life opens up
one of the most important facets of life. After
marriage, the married couple lives for one another
sharing the responsibility, pleasure and sorrow of
life. Children bring a source of joy and hope. Since
the marriage prospect of the claimant is wiped out,
the claimant is deprived of all the pleasure and
benefits of married life. The loss is so huge and is
incapable of evaluation in terms of money.
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15. Given the kind of disability suffered by
the claimant, the mental trauma which the claimant
has to undergo for the rest of his life, is much more
painful than the physical pain that he has suffered
immediately after the accident. The mental trauma
of having to remain single, and answering the
curious questions posed by the people around
throughout life, for not getting married, are some of
the things not easy to cope with. The trauma is
going to be perennial and unabated. Such being the
position, the duty is cast upon the Tribunals and
Courts to award just compensation to ensure that
the unbearable mental trauma is mitigated to the
extent possible and the claimant can live with some
dignity and find some solace in the monetary
compensation awarded."
22. When the claimant has lost her marriage
prospects, any amount of compensation would not
compensate. However, we are of the view that the
claimant-appellant would be entitled for another sum of
Rs.3,00,000/- on the said head. In all, the claimant would
be entitled for a sum of Rs.5,00,000/- on the head of
loss of marriage prospects.
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23. The Tribunal had saddled liability on the 1st
respondent-owner as the 1st respondent-owner had no
licence to drive the vehicle. The 1st respondent/driver-
cum-owner has not placed on record any document to
establish that he had licence. Full bench of this Court in
Yallavva's case (supra) has held that wherever it is a
case of no licence to drive, it is a case for 'pay and
recovery'. Therefore, following the decision in Yallavva's
case (supra), we are of the view that it is for the insurer to
pay compensation at the first instance and recover the
same from the 1st respondent/driver-cum-owner of the
vehicle.
24. Thus, the claimant would be entitled to modified
compensation as under:
Sl.No. Particulars Amount
1 Loss of future income Rs.24,19,200/-
2 Towards attendant charges Rs.1,00,000/-
3 Pain & suffering Rs.1,00,000/-
4 Towards medical expenses Rs.1,16,276/-
5 Towards conveyance, food and Rs.25,000/-
nourishment expenses
6 Loss of marriage prospects Rs.5,00,000/-
Total Rs.32,60,476/-
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25. Thus, the claimant would be entitled to total
compensation of Rs.32,60,476/- as against
Rs.6,51,276/- awarded by the Tribunal.
26. Hence, we pass the following order:
ORDER
a) The appeal is allowed in part.
b) The impugned judgment and award passed
by the Tribunal is modified to the extent
that the claimant would be entitled to total
compensation of Rs.32,60,476/- as
against Rs.6,51,276/- awarded by the
Tribunal.
c) The enhanced compensation amount of
Rs.26,09,200/- shall carry interest at the
rate of 6% per annum from the date of
petition till date of payment.
d) The respondent/insurance company shall
pay the entire compensation amount along
with accrued interest in favour of the
claimant at the first instance and shall
recover the same from the 1st
respondent/owner.
e) Respondent-Insurance Company shall
deposit the enhanced compensation
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amount along with accrued interest before
the Tribunal within a period of six weeks
from the date of receipt of certified copy of
this judgment.
f) On such deposit, a sum of Rs.20 lakhs
shall be kept in fixed deposit in any
nationalized bank in the name of the
appellant/injured for a period of ten years
with liberty to the appellant to withdraw
periodical interest accrued thereon.
Remaining amount with accrued interest
shall be released in favour of the
appellant/injured immediately.
g) Registry to transmit the records to the
Tribunal forthwith.
h) Draw modified award accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
CLK
