Karnataka High Court
L Kiran Kumar vs Managing Partner on 23 October, 2024
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MFA No.2919/2021
C/w MFA No.360/2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
MISCELLANEOUS FIRST APPEAL No.2919/2021(MV-I)
C/w
MISCELLANEOUS FIRST APPEAL No.360/2021(MV-I)
MFA No.2919/2021:
BETWEEN:
L KIRAN KUMAR
S/O LOKESH
AGED ABOUT 14 YEARS
BEING MINOR REP. BY HIS
NATURAL GUARDIAN FATHER
LOKESH
R/AT NO.7/105, HIRETHURPI
KARIKERA, ANANTHAPUR DISTRICT
ANDHRAPRADESH - 515 305 ...APPELLANT
(BY SRI R.SHASHIDHARA, ADVOCATE)
Digitally
signed by K S AND:
RENUKAMBA
Location: 1. MANAGING PARTNER
High Court of M/S THIRUMALASWAMY ASSOCIATES
Karnataka
REP. BY JAYAPPA
G MALANAYANAKANAHALLI
MADHUGIRI TALUK
TUMKUR DISTRICT - 572 132
2. UNIVERSAL SOMPO GENERAL
INSURANCE CO. LTD.,
REGIONAL OFFICE
K.V.D. TOWERS, NO.7/3
II FLOOR, ABOVE BARCLAYS FINANCE
OPP: 100 FEET ROAD
OLD MADRAS ROAD
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MFA No.2919/2021
C/w MFA No.360/2021
INDIRANAGAR
BANGALORE - 560 038 ...RESPONDENTS
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE FOR R2;
NOTICE TO R1 DISPENSED WITH V/C/O DTD:12.06.2024)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO MODIFY THE JUDGMENT
AND AWARD DATED 22.10.2019 PASSED IN MVC NO.6906/2017 ON
THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE AND MACT,
BENGALURU (SCCH-11) PARTLY ALLOWING THE CLAIM PETITION
FOR COMPENSATION AND SEEKING ENHANCEMENT OF
COMPENSATION.
MFA No.360/2021:
BETWEEN:
M/S UNIVERSAL SOMPO GENERAL
INSURANCE COMPANY LTD.,
REGIONAL OFFICE, KVD TOWER
NO.7/3, 2ND FLOOR
ABOVE BARCLAYS FINANCE
OPP. TO 100 FEET ROAD
OLD MADRAS ROAD
INDIRANAGARA, BANGALORE -560 038
NOW REP. BY M/S UNIVERSAL SOMPO
GENERAL INSURANCE COMPANY LTD.,
PLOT NO.EL94, KLS TOWER
T.T.C INDUSTRIAL AREA
MIDC, MAHAPE, NAVI MUMBAI - 470 701 ...APPELLANT
(BY SRI B.C.SHIVANNE GOWDA, ADVOCATE)
AND:
1. L KIRAN KUMAR
S/O LOKESH
AGED ABOUT 13 YEARS
SINCE MINOR, REP. BY NATURAL GUARDIAN
AND FATHER LOKESH
R/AT NO.7/105, HIRETHURPI
KARIKERA, ANANTHAPUR DISTRICT
A.P. STATE - 515 305
2. MANAGING PARTNER
M/S THIRUMALASWAMY ASSOCIATES
REP. BY JAYAPPA
-3-
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MFA No.2919/2021
C/w MFA No.360/2021
R/AT G MALANAYAKANAHALLI
MADHUGIRI TALUK
TUMAKURU - 572 116 ... RESPONDENTS
(BY SRI R.SHASHIDHARA, ADVOCATE FOR R1;
SRI V.JAVAHAR BABU, ADVOCATE FOR R2)
THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER
SECTION 173(1) OF MV ACT PRAYING TO SET ASIDE THE JUDGMENT
AND AWARD DATED 22.10.2019 PASSED IN MVC NO.6906/2017 ON
THE FILE OF THE I ADDITIONAL SMALL CAUSES JUDGE AND MACT,
BENGALURU (SCCH-11), AWARDING COMPENSATION OF
RS.8,26,250/- WITH INTEREST AT 9% P.A. FROM THE DATE OF
PETITION TILL THE DATE OF REALIZATION.
THESE MISCELLANEOUS FIRST APPEALS COMING ON FOR
ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
ORAL JUDGMENT
(PER: HON'BLE MRS JUSTICE K.S.MUDAGAL)
Though these appeals have come up for admission, with
consent of both side, the matters are taken up for final
disposal.
2. These appeals arise out of judgment and award
dated 22.10.2019 in MVC No.6906/2017 passed by I Additional
Small Causes Judge & MACT, Bangalore (SCCH-11) C/c XXIII
Additional Small Causes Judge and XXI ACMM, Bangalore
(SCCH-25).
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3. The appellant in M.F.A.No.2919/2021 is the
claimant and respondents in the said case were the
respondents before the Tribunal. For the purpose of
convenience, the parties are referred to henceforth according to
their ranks before the Tribunal.
4. On 14.03.2017 at 10.30 p.m. when the claimant
and others were proceeding in Maruti Suzuki Car bearing
Registration No.KA-03-Z-1642 near Anjaneyaswamy Temple of
Hireturpi village, Madakashira Amarapuram Road, Ananthapur
District, A.P., driver of the lorry bearing Registration
No.KA-64-2550, came from the opposite direction, hit the car.
In the accident, the claimant and other inmates of the car
suffered injuries. The driver of the car died. At the relevant
time, respondent Nos.1 and 2 were the registered owner and
insurer of the lorry respectively.
5. The claimant in the present case and other victims
filed M.V.C.No.6905/2017, M.V.C.No.6906/2017 and
M.V.C.No.6907/2017 before the Tribunal claiming
compensation from the respondents alleging that the accident
and consequent injuries and death occurred due to actionable
negligence on the part of the driver of the lorry. The claimant in
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MVC No.6906/2017 sought compensation of Rs.70,00,000/-
from the respondents on the ground that due to the accident he
has lost his eyes.
6. Respondent No.1 did not contest the petitions.
Respondent No.2 alone contested the petitions denying
rashness and negligence on the part of the driver of the lorry,
disability of the claimant and other aspects. The Tribunal
consolidated M.V.C.No.6905/2017, M.V.C.No.6906/2017 and
M.V.C.No.6907/2017 and recorded common evidence.
7. At the time of the accident, the claimant was aged
10 years, so the claim petition was filed through his natural
guardian/father Lokesh. He was examined as PW.2 and the
doctor who treated the claimant was examined as PW.5. On
behalf of the Insurer, its Official was examined as RW.1 and got
marked Exs.R1 and R2. On behalf of the claimant, his medical
records (Exs.P35 to P41) and police records (Exs.P15 to P26)
were produced.
8. The Tribunal on hearing the parties by the
impugned judgment and award held that the accident occurred
due to actionable negligence on the part of the driver of the
lorry. The Tribunal relying on the evidence of PW.5 the doctor
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held that, the claimant has lost both his eyes and suffered
100% permanent physical disability. Relying on the judgment
of the Hon'ble Supreme Court in Master Mallikarjun v.
Divisional Manager, the National Insurance Company Ltd.1,
the Tribunal awarded compensation of Rs.6,00,000/- globally
on the head of pain and sufferings, loss of amenities due to
physical disability etc. The Tribunal in all awarded
compensation of Rs.8,26,250/- on different heads as follows:
Sl. Particulars Compensation
No. amount in Rs.
1 Pain and suffering already undergone and 6,00,000/-
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.
2 Discomfort, inconvenience and loss of 10,000/-
earnings to the parents during the period
of hospitalization.
3 Medical expenses 2,16,250/-
Total 8,26,250/-
9. Challenging the said award, the claimant has filed
M.F.A.No.2919/2021 and the Insurer has preferred
M.F.A.No.360/2021.
10. Sri R.Shashidhar, learned Counsel for the claimant
reiterating the grounds of appeal submits that the
compensation awarded on all the heads is on the lower side. He
(2014) 14 SCC 396
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submits that earlier judgment in Master Mallikarjun's case
referred to supra was considered by the Hon'ble Supreme Court
subsequently in Kajal v. Jagdish Chand2 wherein loss of future
earnings based on the wage earned by the claimant was
considered. The compensation ought to have been awarded on
the head of loss of amenities, loss of marriage prospects,
attendant charges of the parents etc. Thus he seeks
enhancement of the compensation. So far as liability of the
insurer, relying on the judgment of this Court in
M.F.A.No.359/2021 and connected matters which relates to the
same accident, he contends that the insurer is liable to pay the
compensation and recover the same from respondent No.1/
registered owner of the lorry.
11. Sri B.C.Shivanne Gowda, learned Counsel for
respondent No.2/Insurer justifies the quantum of
compensation. He further submits that as the insured vehicle
was operating without permit in Andhra Pradesh, Insurer is not
liable to pay the compensation. He further submits that since
the victim was aged hardly 10 years, the judgment in Master
Mallikarjun's case referred to supra is applicable and not
Kajal's case referred to supra which involved case of total
(2020) 4 SCC 413
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paraplegia. He also submits that loss of eyes does not make it
a 100% disability and awarding interest at 9% per annum is
unjustifiable.
12. On careful examination the submissions of both side
and the material on record, the questions that arise for
consideration are:
(i) Whether the compensation awarded to the claimant
under the impugned award is just one?
(ii) Whether insurer is liable to pay the compensation?
Analysis
13. So far as occurrence of the accident due to
actionable negligence on the part of the driver of the lorry, the
finding rendered in the connected cases namely
M.V.C.No.6905/2017 and M.V.C.No.6907/2017 is confirmed by
this Court in M.F.A.No.359/2021 and connected cases. Thus
that has attained finality.
Reg. Quantum:
14. There was no dispute that as on the date of the
accident, the claimant was aged 10 years. The evidence of
PW.5 the doctor who treated the victim shows that after the
accident, the claimant was initially treated in Government
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Hospital, Ananthapura and then he was brought to Columbia
Asia Hospital, where PW.5 was working. As per his evidence the
claimant suffered the following injuries:
"Patient is conscious, responding well.
Right eye-patient was unable to appreciate light, lid
edema, distorted globe with uveal tissue seen in the
interpalpebral region, conjunctival chemosis.
Left eye-patient was unable to appreciate light, lid
edema, distorted globe, conjunctival chemosis, cornea
flat, hyphema, scleral tear seen nasally.
Was advised primary globe rupture repair under
general anaesthesia under nil visual prognosis.
Patient also had multiple facial injuries, injury to
left knee, right wrist joint for which he was being
evaluated and managed by concerned specialists."
15. The evidence of PW.5 further shows that the patient
was initially treated between 14.03.2017 to 16.03.2017, due to
unaffordability, he got discharged and was admitted to Victoria
Hospital. Again he was brought back from Victoria Hospital,
Bangalore on 17.03.2017 to Columbia Asia Hospital and from
17.03.2017 till 31.03.2017 the claimant was treated there. He
underwent several medical procedures. Finally, PW.5 has given
opinion that after all investigation, it was found that the patient
has loss of vision in both eyes and suffered 100% permanent
physical disability (permanent physical impairment). Nothing
was elicited in his cross-examination to impeach her evidence.
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Therefore, the Tribunal was justified in considering 100%
disability.
16. The Tribunal globally awarded compensation of
Rs.6,00,000/- relying on the judgment of the Hon'ble Supreme
Court in Master Mallikarjun's case referred to supra. However,
subseqeuntly, in the later judgment in Kajal's case referred to
supra, Hon'ble Supreme Court has adopted the method of
considering the income of the victim, multiplied by applicable
multiplier. Therefore subsequent judgment has to be followed.
In Kajal's case referred to supra, the victim was aged 12 years
and monthly income was notionally assessed at Rs.4,846/- per
month. That can be rounded off to Rs.4,850/- per month and
applied to the present case.
17. Since the claimant had 100% disability/impairment,
in view of the judgment of the Hon'ble Supreme Court in
National Insurance Company Ltd., v. Pranay Sethi3 case, 40%
has to be added to the income of the claimant by way of future
prospects. The applicable multiplier is 18. Therefore the
compensation payable on the head of future earnings is
Rs.4,850/- + Rs.1,940/- = Rs.6,790 x 12 x 18 =
Rs.14,66,640/-.
(2017) 16 SCC 680
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18. Medical expenses of Rs.2,16,250/- is awarded
based on the records and that needs to be maintained. The
evidence of PW.5 shows that the victim has lost vision of both
eyes. There was fracture of bilateral floor and medial wall of
orbits, undisplaced fracture of bilateral lateral walls, blow out
fracture of bilateral orbital floor with fatty herniation on left
side along with other facial injuries. Therefore the
compensation of Rs.1,00,000/- on the head of pain and
sufferings would be just.
19. Due to loss of vision, the claimant is deprived of
enjoyment of several aspects like any other ordinary person.
Awarding compensation of Rs.2,50,000/- on the head of loss of
amenities would meet the ends of justice.
20. Marriage prospects of the claimant are lowered due
to loss of vision. Therefore awarding Rs.1,00,000/- as
compensation for loss of marriage prospects would be proper.
21. The claimant was hospitalized for 14 days.
Awarding Rs.15,000/- on the head of diet, food, nourishment
and attendant charges during hospitalization period would be
just and proper.
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22. The claimant's father was next friend in the present
case. He could not have attended to work after the accident
and during hospitalization period of the claimant for atleast
three months. Awarding global compensation of Rs.35,000/- as
loss of his earnings would meet the ends of justice. Therefore
just compensation payable is as follows:
Sl. Particulars Compensation
No. amount in Rs.
1 Loss of future earnings 14,66,640/-
2 Medical Expenses 2,16,250/-
3 Pain and sufferings 1,00,000/-
4 Loss of amenities 2,50,000/-
5 Loss of marriage prospects 1,00,000/-
6 Diet, food, nourishment and 15,000/-
attendant charges
7 Loss of income of father of 35,000/-
the claimant during
hospitalization period
Total 21,82,890/-
Less awarded by the Tribunal 8,26,250/-
Enhanced compensation 13,56,640/-
23. So far as rate of interest, in the connected matters,
the contention of the Insurer is rejected. Therefore interest
awarded at 9% is maintained.
Reg. Liability:
24. Insurer/respondent No.2 contended that at the time
of the accident, lorry in question was being operated in Andhra
Pradesh, though there was no permit to operate the vehicle in
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that State, due to violation of policy condition insurer is not
liable to indemnify the compensation. Similar contention was
raised in the connected matters preferred before the learned
Single Judge. In those cases, learned Single Judge relying on
the judgment of the Hon'ble Supreme Court in Rani v. National
Insurance Company Ltd.4 held that though operating without
permit amounts to fundamental breach of policy condition,
insurer is liable to pay compensation and recover the same
from the insurer. The same has to be followed in this case also.
Therefore both appeals deserve to be allowed in part. Hence,
the following:
ORDER
The appeals are allowed in part.
The award in M.V.C.No.6906/2017 on the file of I
Additional Small Causes Judge & MACT, Bangalore (SCCH-11)
C/c XXIII Additional Small Causes Judge and XXI ACMM,
Bangalore (SCCH-25) is modified as follows:
(a) The claimant is entitled to enhanced compensation
of Rs.13,56,640/- with interest thereon at 9% per annum from
the date of the petition till realization.
(2018) 8 SCC 492
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(b) Respondent No.2/Insurer shall deposit the said
amount after adjusting the amount already deposited, if any,
before the Tribunal within four weeks from the date of receipt
of copy of this order.
(c) Respondent No.2/insurer is entitled to recover the
same from respondent No.1/Insured by filing execution petition
before the Tribunal.
(d) Registry shall transmit the amount in deposit, if
any, and the Trial Court records to the Tribunal forthwith.
Sd/-
(K.S.MUDAGAL)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
KSR
